How to Win a Birth Injury Lawsuit

If you’re sitting beside a NICU incubator, or you’ve just heard a diagnosis you didn’t expect, it’s natural to wonder whether something went wrong at the birth.

To win a birth injury lawsuit, you generally have to prove that a doctor, midwife, nurse or hospital fell below the accepted standard of care during pregnancy, labor or delivery, and that this caused your child’s injury. Many birth injuries happen even when care is careful, so the answer lies in the records, read by a qualified medical expert: the fetal heart-rate strips, Apgar scores, cord blood gases, delivery notes and newborn brain scans.

Your baby’s care comes first, so follow the plan your child’s doctors give you. A claim is a separate question that can wait, though not forever: in Michigan, a child hurt at birth generally has until the 10th birthday to sue, but the mother’s own claim has a much shorter deadline (MCL 600.5851(7), 600.5805(8)).

This guide covers the U.S. generally. Michigan’s rules, current as of September 2026, are in the boxes marked “In Michigan.”

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Is it a birth injury, a birth defect or malpractice?

• A birth injury, as this guide uses the term, is physical harm to a baby during labor, delivery or just after birth, such as a stretched nerve, a broken bone, bleeding or a lack of oxygen.
• A birth defect is a problem that happens while the baby is developing in the womb, most often in the first three months of pregnancy (MedlinePlus). The delivery doesn’t cause it.
• Malpractice is care below what a reasonably careful provider in the same field would have given. A birth injury is malpractice only if that shortfall caused it.

Many birth injuries happen without anyone making a mistake. In many cases of cerebral palsy, the cause isn’t fully known (CDC), and most researchers accept that the forces of labor alone can cause at least a temporary injury to the nerves of a baby’s arm (ACOG, 2014). Michigan jurors can be told that a doctor “is not liable merely because of an adverse result” (M Civ JI 30.04), and you must show the injury more probably than not was caused by negligence (MCL 600.2912a(2)). That’s hard to hear, and it’s why an expert review matters: it can show whether the care was the problem, or that it wasn’t.

The hard part is usually the process: the answers sit in technical records the hospital keeps, the deadlines and notice rules are strict, and the other side handles claims like this every day.

Which birth injuries can involve the delivery, and what are the warning signs?

None of the injuries below proves malpractice on its own. Many happen without anyone making a mistake, and some have causes unrelated to the delivery. Your child’s doctors are the right people to explain the diagnosis.

Hypoxic-ischemic encephalopathy (HIE)

Neonatal encephalopathy means a newborn’s brain isn’t working normally in the first days of life. In a baby born at 35 weeks or later, the signs are an unusually low level of alertness or seizures, often with trouble breathing and weak muscle tone and reflexes. HIE is the part of it caused by too little oxygen and blood flow to the brain. A 2014 report by the American College of Obstetricians and Gynecologists (ACOG) and the American Academy of Pediatrics (AAP), Neonatal Encephalopathy and Neurologic Outcome, prefers the broader term unless a full evaluation points to that cause (ACOG and AAP, 2014).

The report lists sudden events just before or during labor that can cut off a baby’s oxygen, such as a torn uterus, a severe placental abruption or a prolapsed umbilical cord. It adds that when other risk factors are present, such as infection, abnormal fetal growth or long-standing problems in the placenta, a single event in labor becomes much less likely to be the whole cause, and that studies disagree on how often the injury starts in labor rather than before it (ACOG and AAP, 2014). A claim asks whether warning signs were recognized and acted on in time.

Brachial plexus injuries and Erb’s palsy

The brachial plexus is a network of nerves running from the spinal cord to the shoulder, arm and hand. Many injuries to it happen when a baby’s shoulder gets stuck during delivery (shoulder dystocia) and the nerves stretch or tear (NINDS). Erb’s palsy affects the upper arm. Signs appear at or soon after birth: the baby doesn’t move one arm or hand, holds the arm straight against the body, has a weaker grip, or lacks the startle (Moro) reflex on that side. Most babies fully recover within 3 to 4 months (MedlinePlus).

ACOG’s 2014 task force found that these injuries happen with or without a stuck shoulder, in vaginal and cesarean births, and that even properly applied traction can cause one, so an injury alone doesn’t show that too much force was used. It named situations in which a different delivery plan might be considered, such as a baby estimated at over 5,000 grams (about 11 pounds), or over 4,500 grams if the mother has diabetes (ACOG, 2014). A claim review asks questions like these, and how the team responded once the shoulder was stuck.

Fractures and bleeding under the scalp

A broken collarbone can happen in a difficult vaginal delivery. The baby holds the arm still and seems to hurt when lifted under the arms, and a hard lump may form as the bone heals; babies recover fully (MedlinePlus). After a vacuum or forceps delivery, most bumps and bleeding under the scalp go away without serious problems (MedlinePlus). Two findings need more attention, according to the Pennsylvania Patient Safety Authority (2009). A lump of blood under the covering of a skull bone (a cephalohematoma) sits over a skull fracture in up to 5% of cases. And bleeding between the scalp and the skull after a vacuum delivery (subgaleal hemorrhage) is rare but can be fatal: it shows up as a firm or squishy swelling that crosses the seams between the skull bones, is often noticed within 4 hours of birth and can grow for 12 to 24 hours, and can cause shock, with signs such as paleness and fast breathing.

Bleeding in or around the brain

Bleeding inside the skull after a vacuum or forceps delivery is rare but can be very serious (MedlinePlus). The Pennsylvania Patient Safety Authority (2009) notes that the U.S. Food and Drug Administration issued a public health advisory in 1998 about an increased risk of serious injury inside the skull, or death, with vacuum devices.

A brain bleed called intraventricular hemorrhage (IVH) happens mostly in premature babies, whose brain blood vessels are still fragile. It’s rare in full-term babies and usually starts in the first several days, with signs such as pauses in breathing, low muscle tone, a weak suck or seizures, or none at all (MedlinePlus).

Cerebral palsy

Cerebral palsy (CP) is a lifelong disorder of movement and coordination caused by changes in the developing brain, which can include bleeding in the brain or a lack of oxygen (NINDS). According to the CDC, 85% to 90% of CP is congenital, meaning related to events before or during birth. Its risk factors include birth complications that can cut off a baby’s oxygen, such as the placenta detaching, the uterus tearing or problems with the umbilical cord, and severe newborn jaundice left untreated too long (CDC). Trouble during labor can also be the first sign of a problem that began before birth (NINDS).

In babies under 6 months, early signs can include feeling floppy or stiff, legs that stiffen and cross when the baby is picked up, and a head that lags when the baby is lifted from lying on its back. These signs don’t always mean CP, and most children with CP are diagnosed in the first two years (NINDS). The types consistent with a sudden lack of oxygen around birth are spastic quadriplegia and dyskinetic CP; other types are less likely to be linked to it (ACOG and AAP, 2014).

What evidence proves, or disproves, a birth injury case?

ACOG and the AAP recommend judging whether a lack of oxygen around birth played a role by weighing everything together: the baby’s condition, the mother’s history, the pregnancy, the labor, including the heart-rate monitoring and the delivery, and the placenta. No single test settles it (ACOG and AAP, 2014), and the same records can help or hurt a claim.

• Fetal heart-rate strips. A monitor records the baby’s heartbeat and the mother’s contractions. An abnormal pattern doesn’t always mean a problem; the first steps are to look for the cause and help the baby get more oxygen, for example by having the mother change position (ACOG). Tracings are sorted into Category I (normal), Category II (indeterminate) and Category III, which marks a baby at higher risk of abnormal blood acid levels. One that was Category I on arrival and turned Category III suggests a lack of oxygen during labor, while certain worrying patterns present from arrival suggest a baby who was already compromised or injured (ACOG and AAP, 2014, 2015).
• Apgar scores. A 0-to-10 rating of color, heart rate, reflexes, muscle tone and breathing at 1 and 5 minutes after birth. Sedation, prematurity and other factors affect it. A score of 7 or more at 5 minutes makes it unlikely that a lack of oxygen around birth caused encephalopathy, and most babies with low scores don’t develop CP (ACOG and AAP, 2015).
• Umbilical cord blood gases. Blood from the cord artery shows how much acid built up, a sign of a shortage of oxygen. A pH below 7.0, a base deficit of 12 mmol/L or more, or both make it more likely that low oxygen during labor played a part; a pH above 7.20 makes that unlikely. Most newborns with significant acid buildup are still neurologically normal, and the result doesn’t show when the problem began (ACOG and AAP, 2014).
• Newborn MRI. It’s the best scan for a newborn’s brain injury: one at 24 to 96 hours of life helps with timing, and one around day 10 shows the full extent. Some patterns, such as a stroke in one artery or an isolated bleed, point away from a lack of oxygen around birth. An MRI can’t show why the oxygen was cut off (ACOG and AAP, 2014).
• The placenta. Examining it can reveal infection, clots or long-standing problems. Every placenta from a baby with encephalopathy meets expert criteria for this exam, yet in one series only 11.2% were examined (ACOG and AAP, 2014), so ask whether it was sent to pathology.
• Delivery and nursing notes. They show when a problem was noticed, who was told, what was done and when the baby was born.
• Expert review. An expert has to put it all together: usually one in the same field as each provider whose care is questioned, and often specialists in newborn medicine, neurology or brain imaging.

How do you get the medical records?

You have a federal right to copies of your records. A provider must act within 30 days, with one possible 30-day extension, and can charge only a reasonable, cost-based fee (45 CFR 164.524). The mother requests her own pregnancy, labor and delivery records. A parent with authority to make the child’s health care decisions is generally treated as the child’s personal representative and can request the baby’s newborn and NICU records. If a baby has died, the person with authority to act for the baby’s estate has that role (45 CFR 164.502(g)(3), (4)).

Ask in writing, keep copies, and name what you want: the complete fetal heart-rate tracing, the labor and delivery and nursing notes, the delivery report, the Apgar record, cord blood gas results, the resuscitation record, NICU records, imaging, and any placenta pathology report.

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How does a birth injury claim work in Michigan?

Some states, including Michigan, add steps before a malpractice lawsuit can start.

How long do you have to file a birth injury claim?

A birth injury can lead to more than one claim: the child’s, and the parents’ own, such as the mother’s claim for her injuries from the delivery. They can have different deadlines, so ask a lawyer early which applies to each part of the case.

A made-up example: a baby is hurt during a delivery on March 1, 2026. In Michigan, the child’s claim is generally due by March 1, 2036, the 10th birthday. The mother’s claim for her own injuries is generally due by March 1, 2028, unless the six-month discovery rule gives her longer.

What can a birth injury claim recover?

Damages are the money awarded for an injury. For a child with a serious birth injury, much of the case is about the future: the care, therapy, equipment and support the child will need, and the cost. A life-care plan sets these out, and it’s used in treatment planning and in lawsuits (Missner and Cohen, 2019). For a child with cerebral palsy, its cost depends on the child’s needs and life expectancy, and each item needs a proper foundation (Katz and Johnson, 2013).

In Michigan, jurors can award the reasonable expenses of necessary medical care, past and future, and other necessary expenses, such as caretaking (M Civ JI 50.05, 50.08). A child’s lost earning capacity is counted from age 18 (M Civ JI 50.07). Future damages are found year by year (MCL 600.6305(1)) and, in a malpractice case, reduced to present value at 5% a year (MCL 600.6306a). Noneconomic damages cover harm without a price tag, such as pain, suffering, physical impairment and disfigurement (MCL 600.1483(3)).

Are damages capped?

Some states, including Michigan, cap noneconomic damages in malpractice cases. Michigan’s cap doesn’t limit economic damages, such as the cost of care.

How is a child’s settlement approved and protected?

What are Florida’s and Virginia’s no-fault birth injury programs?

Florida and Virginia handle some of the most severe birth injuries through no-fault programs instead of lawsuits. Both laws were amended in 2026; this is how they read as of September 2026.

• Florida’s plan (NICA) covers an injury to the brain or spinal cord of a live baby weighing at least 2,500 grams (2,000 grams in a multiple birth), caused by oxygen deprivation or mechanical injury during labor, delivery or resuscitation right after delivery in a hospital, that leaves the child permanently and substantially impaired, mentally and physically. Genetic and congenital conditions are excluded (Fla. Stat. § 766.302(4)). It pays “irrespective of fault” for medically necessary care that insurance and government programs don’t cover, plus family benefits and a capped award (§§ 766.303(1), 766.31), generally only if a participating physician delivered the obstetric care (§ 766.309(1)(b)). For covered injuries it replaces a malpractice suit against those directly involved in the delivery, except in narrow cases such as bad faith (§ 766.303(2)). Claims filed more than five years after the birth are barred (§ 766.313).
• Virginia’s program covers a similar injury that leaves the child permanently disabled in movement and developmentally or cognitively disabled, needing help with all activities of daily living (Va. Code § 38.2-5001). It pays care costs not covered elsewhere, housing help, a vehicle, family therapy and lost earnings from age 18 to 65 (§ 38.2-5009). Where the doctor or hospital participates, it generally replaces the child’s and parents’ malpractice claims, but not the mother’s claim for her own separate physical injury (§ 38.2-5002). Claims filed more than 10 years after the birth are barred (§ 38.2-5013).

If your child was born in either state, ask a lawyer early whether the program applies.

What to do next

1. Put your child’s care first. Follow the plan from your baby’s doctors and therapists, and ask them to explain the diagnosis and what to watch for.
2. Write down what you remember while it’s fresh: times, what you were told, who was in the room and when your baby went to the NICU. Keep a folder for bills and appointment notes.
3. Request both sets of records, the mother’s and the baby’s, by name, and ask whether the placenta was examined.
4. Find your deadlines, for the child’s claim and the parents’ own claims. In Michigan, the 182-day notice comes first, so work backward from the earliest deadline.
5. Get a case review. Get a free case review, or if you’re in Michigan, compare Michigan injury lawyers. Get the fee agreement in writing, including how expert costs are handled.

What waiting can cost

• The mother’s claim. It usually has a much shorter deadline than the child’s; in Michigan, generally two years (MCL 600.5805(8), 600.5838a).
• The notice period. A Michigan malpractice lawsuit generally can’t start until 182 days after the notice of intent (MCL 600.2912b(1)), and the notice pauses the clock only if it’s given before the deadline passes (MCL 600.5856(c)).
• Evidence. A placenta that has been discarded can’t be examined, and memories fade.
• The programs’ limits. Florida’s plan bars claims filed more than five years after the birth, and Virginia’s more than 10 (Fla. Stat. § 766.313; Va. Code § 38.2-5013).

What a good outcome looks like

Your child is getting the care they need, and a qualified expert has read the records and told you plainly whether the care fell short. If it did, the claim was filed on time with every required step, and those responsible pay for your child’s lifetime care, within your state’s limits, with a court protecting the money. If it didn’t, you have a clear answer and can put your energy into your family. From wondering whether anyone could have prevented this, to knowing what the records show, what your deadlines are and what your child’s care will need.

For the bigger picture, see our complete medical malpractice guide, what to do if you think you have a malpractice case and what to know about C-section errors. If the concern is a problem missed during pregnancy or after birth, see how misdiagnosis claims work.

Updated September 28, 2026

This guide is general information, not legal advice, and laws change. For advice about your situation, talk to a lawyer licensed in your state. Reading this page or contacting us does not create an attorney-client relationship.