Birth Injury Law

April 7, 2021 by Spector Injury & Accident Lawyers

If Your Baby Suffered a Birth Defect, How Do You Know if You Have a Claim

Birth Injury Lawyers

Having a baby is a joyous occasion. However, this joy can quickly turn to sorrow if the baby is born with a birth defect.

Birth defects are abnormalities that arise during prenatal development and affect thousands of babies every year. Although some are genetic in origin, others are caused by environmental factors and could have been prevented.

Preventable birth defects occur because the mother was exposed to a substance that inhibited the child’s development during pregnancy; this could be a chemical she was exposed to at work, such as a pesticide or fungicide, a household product, like a cleaner or weed killer, or a toxin in the air or water supply.

Often, the mother doesn’t know she’s exposing her baby to harm at the time. In fact, she could consciously ingest the substance if, for example, it’s in a medication her doctor prescribed. For this reason, many parents are unaware of the damage caused until the baby is born.

Birth defects can also be caused by physician error either before or during birth. For example, an obstetrician may incorrectly use a medical device during delivery resulting in severe harm to the baby.

The despair of knowing your child may never lead a normal, healthy life can be overwhelming. The situation is even more heart-wrenching if the harm was preventable

Victims should know that they have rights under the law. If a child’s birth defect was caused by the negligence of another party, parents can file a lawsuit against those who were responsible. Although a successful lawsuit cannot reverse the harm that was tragically inflicted upon the child, it may result in a significant financial award that can pay for medical treatments and other necessary support for the child.

What Are Birth Defects?

In a developed country like the United States, most babies are born healthy and without complications. However, a small but not insignificant minority aren’t so lucky.

In America, thousands of babies are born afflicted with health conditions referred to as birth defects.

According to the Cleveland Clinic, “a birth defect is something visibly abnormal, internally abnormal, or chemically abnormal about [a] newborn baby’s body. The defect might be caused by genetics, infection, radiation, or drug exposure, or there might be no known reason. Examples of birth defects include phenylketonuria, sickle cell anemia and Down syndrome.”

Nearly 120,000 babies are affected by birth defects every single year. These abnormalities can range from mild to severe, requiring anything from over-the-counter medication to invasive surgery to treat. Some birth defects cannot be fully treated, impacting the child into adulthood.

There are potential birth defects associated with nearly every part of the body—from the foot to the eye to the heart. Of course, the baby’s well-being is heavily dependent on the body part that’s impacted. A serious defect, such as one involving the heart or lungs, can lead to a shortened lifespan.

Some common birth defects include:

Birth defects arise during the baby’s formation in the mother’s womb. The limb or organ that’s affected either doesn’t develop at all or doesn’t develop properly. This developmental failure can happen at any time during the pregnancy, but usually occurs within the first three months.

Some birth defects are detected early in the pregnancy through a prenatal examination such as an ultrasound while others may not be discovered until months after birth. Relatedly, most external defects are easy to identify (i.e. a deformed or malformed body part) while the internal variety is often more subtle, requiring an X-ray or MRI to diagnose.

Birth defects can have many different causes with multiple factors often playing a role. This can make pinpointing the exact reason a specific defect occurred very challenging, if not impossible, in some cases. Simply put, we’ll never know why some birth defects happen.

Thankfully, there are steps the family can take to ensure their child is afforded the healthiest, most fulfilling life possible. Once a birth defect is suspected, the guidance of a medical professional should be sought so care can be administered as soon as possible. Defects that are treated immediately are generally less likely to impact the child later in life. Additionally, there are abundant resources available that help the child and their family manage the impact of a birth defect.

When Can a Victim File a Claim?

Generally speaking, birth defect lawsuits are brought under two different legal theories: negligence and defective products.


To bring a claim of negligence, the victim must demonstrate that the defendant owed them a duty of care, the defendant breached that duty, that breach caused their injury, and their injury was more than nominal (i.e. it can be assigned a monetary value of some significance).

For example, a pregnant woman needs pain medication and seeks the guidance of a doctor. If the doctor prescribes a drug that is known to harm unborn babies without disclosing the risks to the woman and the woman’s baby suffers a birth defect, the doctor was almost definitely negligent. The doctor owed the pregnant women a duty of care, they breached that duty when they prescribed the drug, that breach caused an injury, and that injury was of more than a nominal value.

It should be noted that intent is unnecessary under a theory of negligence. In the above example, whether the doctor intended to harm the baby is irrelevant, as long as they prescribed the drug that caused the defect.

Multiple parties could also be negligently liable for a birth defect. A pharmacist may have negligently dispensed a medicine that is harmful to unborn children, that medicine could have been improperly manufactured by a pharmaceutical company, and the hospital may have failed to properly train the staff member that administered the drug. All three could be potentially included as defendants in a lawsuit.

Defective Product

Defective product claims also do not require intent. The plaintiff must simply demonstrate that the defendant failed to take the necessary steps to ensure the product was reasonably safe.

In the birth defect context, most defective product lawsuits are brought against drug manufacturers. Usually, the plaintiff accuses the defendant of either improperly manufacturing a drug or failing to properly warn of a drug’s side effects.

One critical component of any defective product lawsuit is proving that the victim’s injury was directly caused by the product defect. This can be more challenging than it seems. The plaintiff has no claim, even if the product is horribly flawed, if that flaw didn’t actually cause the birth defect. Medical evidence must demonstrate this causal relationship between a birth defect and a drug defect.

What Are Birth Defect Damages?

In medical malpractice lawsuits, a claim succeeds if the plaintiff recovers damages. Damages compensate the victim for the harm they suffered because of the defendant’s negligence or wrongdoing. In the language of the court, they are intended to make the victim “whole again” by returning him to the condition he enjoyed before his injuries.

There are two kinds of damages: monetary and non-monetary damages.

Monetary Damages

Monetary damages address financial injuries incurred because of the defendant’s behavior. These injuries can easily be valued in a specific dollar amount. They include losses such as medical debt and lost wages. Proving a claim of monetary damages is straightforward and can usually be done with a formal document such as a hospital bill or paystub.

Non-Monetary Damages

Non-monetary damages compensate the victim for more abstract claims that cannot be easily assigned a monetary value. This might include claims for pain and suffering, psychological trauma, and loss of consortium with a spouse. Proving these losses can be challenging because they cannot be demonstrated with documents. Plaintiffs seeking non-monetary damages will often submit testimony from an expert witness, such as a doctor or psychologist, to illustrate the extent of their injuries.

Punitive Damages

In rare circumstances, the court will grant the plaintiff damages beyond what’s necessary to compensate them for their injuries. These are known as punitive damages because they’re intended to “punish” the defendant.

The court will award punitive damages when it wants to send a message to both the defendant and society that such actions will not be tolerated. To merit punitive damages, the defendant’s behavior must be grossly negligent, wanton, or reckless.

Punitive damages usually provide compensation far beyond what an award of just monetary damages would have provided.

What Should I Do if My Baby Has a Birth Defect?

Although some birth defects are easy to recognize, others are subtle and may go unnoticed for days or weeks after the birth.

Sometimes, a parent may only suspect there is something wrong with their child. If this is the case, parents should seek a doctor’s opinion as soon as possible.

If the doctor identifies a defect, it’s usually helpful to get a second opinion. Even experienced doctors can misdiagnose a problem, and before taking action it’s important to seek confirmation from a second physician.

If it’s confirmed that the child has a birth defect, and there’s even a remote possibility that it was the result of wrongdoing, a lawyer should be contacted immediately. A birth defect lawyer can evaluate the facts and decide if there’s a viable legal claim.

It’s important to seek the assistance of a lawyer as soon as possible. Birth defect lawsuits can take months or even years to resolve. Additionally, Maryland imposes a three-year statute of limitations, making it all the more critical for victims to act promptly. In other states, the statute of limitations is even shorter.

Secondly, the hospital, if it suspects a lawsuit may be coming, could make a preemptive settlement offer to try to avoid getting tied up in litigation. An experienced lawyer can let you know if the offer is fair and proceed to litigation if it’s not.

Raising a child with a severe birth defect can be challenging. They may require special care throughout their lives, including medications, surgeries, medical devices, and even a live-in caregiver. The burden on a family can be extreme.

Thankfully, the family can seek help through the justice system if the defect was the result of negligence or wrongdoing. They can file a lawsuit against those responsible, which, if successful, may result in a significant financial award.

The first step is finding an attorney with the right experience. Birth defect lawsuits often involve various areas of law and entail an extensive, highly technical discovery process and investigation. Furthermore, they demand in-depth knowledge of medical terminology and procedures. For these reasons, hire a lawyer with experience in birth defect lawsuits.

But a birth injury lawyer is more than just a legal professional. They understand their client is going through a challenging, even traumatic, experience. The lawyer, as an advocate, is an important source of support for their client, offering an empathetic voice and candid advice throughout the legal process.

Victims shouldn’t hesitate to take action. Birth defect lawsuits may take months or even years to resolve. The sooner the process is started, the sooner relief can be granted.