Proving Malpractice in Birth Injury Cases

By: Attorney Andrew M. Rockman
Birth injuries are at the same time, among the saddest and most dramatic situations malpractice attorneys are called upon to evaluate. The parent or parents are often devastated and in no position to offer information as to what happened or why.

The medical records are the usual starting point for any investigation. The reality is that key portions of those charts are often written after the doctors and nurses know of the tragic results from the birth process, raising a hurdle to any evaluation of what really happened and why.

If there was any abnormality at any time before, during, or after the birth, the investigation must explore whether it was seen, appreciated and handled in a way the standards of medicine required under the circumstances the medical caregivers knew, or should have known existed. Regrettably, the caregivers can use their awareness of what went wrong to create records that seek to excuse as unavoidable what may have, in fact, been avoidable if recognized.

Human nature steps in, where the first reaction of the caregiver is often to protect against being responsible or to lay the foundation for a defense that what was actually known and/or knowable, was unknown and unknowable.

This is often aided by reference to “ACOG”, standards, [American College Of Obstetricians And Gynecologists], that those who handle birth injury claims realize have sections tailored to emphasize that many difficulties and injuries that a birth can present, should be considered unavoidable.

Regrettably, ACOG is not always an objective statement of standards. Parts have developed as an exculpatory source for the use of doctors and their insurance carriers to justify bad outcomes and missed opportunities.

The parents, through their attorney, must be able to differentiate between unavoidable problems, pre birth, while the baby is in utero, from birth injuries where the mother and the baby were sending out timely warning signs to the doctor and nurses, had they been paying attention.

As always the patient is left to deal with the chart written by the care givers and whatever test results are available, versus the often limited information the parents have, given the mother’s condition when everything was going on.

They are left with the need to deal with medical literature that attribute illnesses such as cerebral palsy and arm/shoulder nerve injuries [shoulder dystocia], to unavoidable pre- birth, in utero events.

It then becomes the burden of the attorney experienced in birth injuries to know how to prove and uncover the provable malpractice, as opposed to mistaking the bad result alone as evidence of substandard medicine. The attorney must be familiar with the excuses and the places he or she has to go to get an objective evaluation of what was done, versus what proper medicine required to be done.

The attorney must also know that proving the malpractice is hurdle one. Hurdle two requires recognizing the need and means to prove the malpractice caused the injury, a hurdle significantly different from only proving the birth injury followed the malpractice.

The excuses are many, but the experienced birth injury trial attorney knows what questions to ask and where to get answers, unclouded by medical literature that is not always objective or applicable to what happened at this particular birth.

Cerebral palsy, nerve damage to a baby’s arm, and brain damage are all repeat problems the experienced birth injury trial attorney sees, along with the various excuses the defense uses to shield themselves from responsibility. The mission is not to be cowed or surprised by what experience tells you is coming, but to know where to find the truth and the path around or over the expectable, but unsupported excuses that have been seen before and will, probably, be seen again.


About the Author
Attorney Andrew Rockman is a partner who has been representing injured plaintiffs in medical malpractice cases in New Jersey for more than thirty years. He can be reached at 609 520 0900 or

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A description of methodology
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A description of methodology
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A description of methodology
can be found here
A description of methodology
can be found here

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