Futterman, Sirotkin And Seinfeld, LLP
Futterman, Sirotkin And Seinfeld, LLP

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Medical Malpractice Law: Labor and Delivery Claims


Childbirth can be one of life’s most joyous occasions. However, when something goes wrong during labor and delivery, parents are rightfully angry and look for answers. Generally, parents will hold the attending obstetrician and medical staff responsible for any resulting injuries and sue for medical malpractice. Obstetricians are hit with more malpractice lawsuits than any other medical specialty. Eighty to ninety percent of obstetricians expect to be sued at some point in their career and malpractice rates have increased almost 115 percent in a four-year period. With today’s advancements in medical technology, the number of successful deliveries has increased, but so has medical malpractice litigation.

The Medical Malpractice Lawsuit

Most medial malpractice cases in this area stem either from the performance of so-called “unnecessary” cesarean sections or from the birth of infants with brain damage, neurological disorders, or other serious injuries allegedly incurred during labor and delivery. Whether brain damage is diagnosed soon after delivery or later, when the child fails to achieve developmental milestones during the first years of life, parents usually seek out an explanation as to why and when their child suffered the irreversible brain injury. Generally, parents are told that the outcome was unavoidable. Understandably, many parents suspect that the facts and circumstances that led to the brain damage are not being fully disclosed.

Therefore, many parents frequently decide to consult with and retain an attorney to conduct an independent evaluation of medical records, with the help of qualified experts, to determine the cause and timing of their child’s brain injury and whether the adverse outcome could have been prevented with proper medical care. When approached to evaluate the circumstances surrounding the birth of a child, lawyers generally consider the following questions:

  • What caused the fetal or neonatal brain damage?
  • Did treating physicians timely diagnose and properly manage those fetal, maternal, or neonatal, conditions capable of causing irreversible brain damage?
  • Were there warning signs of fetal distress during the labor and delivery that should have prompted the obstetrician to intervene and expedite the delivery?
  • Would earlier intervention or delivery have prevented the brain damage?

To properly answer these questions, a lawyer involved in the representation of a child diagnosed with a permanent brain injury must understand the causes of birth-related brain damage, such as asphyxia. In order to achieve this level of knowledge, the attorney must be familiar with a wide range of medical specialties and topics. Also, the attorney must have access to experts in this field.

Fear of malpractice suit s, along with the personal and professional consequences flowing from such suit s, explains the pervasiveness of technological monitoring devices in birthing rooms. Advanced technology, such as electronic fetal monitors (EFMs), is increasingly used in hospitals as a mechanism to manage the risks inherent in childbirth. However, the use of advanced technology may create as many problems (that could ultimately result in litigation) as it prevents. Many of the complications that arise in hospital birth are not found as frequently in a home birth or in a birth that takes place in an alternate birthing center. For example, an inaccurate reading of the EFM can prompt an emergency cesarean section or the administration of unnecessary medications. Accordingly, there are lower rates of medical malpractice lawsuits for births that take place outside of a hospital.

In medical malpractice cases, a court will generally determine whether the obstetricians acted in compliance with the customary practices of his or her profession. Although application of this standard is not the sole determinant of the outcome of the lawsuit , it is extremely important in evaluating the reasonableness of the obstetrician’s actions. This standard recognizes the great complexity of the medical profession while still allowing obstetricians a good deal of discretion. Further, obstetricians will not be penalized for following a course approved by a respectable segment of the profession. However, the unsafe practice of an accepted procedure will not shield the obstetrician from being found at fault for the injuries. Therefore, the plaintiff (the party initiating the lawsuit ) must prove, through the use of expert witnesses, that the obstetrician did not act reasonably given the circumstances. If the plaintiff is successful, the obstetrician will be found liable for the injuries.

When litigating these cases, defendant doctors usually prevail. A recent study indicates that the average plaintiff recovery rate for all physician medical malpractice actions was 39%, while the recovery rate for cases involving childbirth was 45%. However, when plaintiffs do succeed in claims involving labor and delivery, the results are very costly for the obstetrician. Moreover, rewards involving infant brain damage allegedly incurred during labor and delivery are typically much higher than other medical malpractice awards. Despite the fact that defendant-physicians usually prevail in the majority of claims, many obstetricians are unwilling to engage in a long, expensive trial and do not trust juries to find in their favor. Thus, settlement is often the inevitable outcome.


With the increasing rate of medical malpractice lawsuits involving childbirth, it is important for expectant parents to understand the medical procedures used during the birth of their baby and how those procedures can affect the health of their baby and the health of the mother. In the unfortunate event of an injury to either mother or baby, the parents may want to pursue both answers and compensation through legal action. This type of a case requires an attorney with great knowledge and experience in the field of medical malpractice, especially in childbirth cases, which is essential to building a successful case.