Understanding Birth Injury Laws in Texas

Your child’s birth is the most joyous occasion in your family’s journey. Sadly, your little one can suffer birth trauma at the hands of a doctor or hospital, resulting in significant injury that could affect them for the rest of their lives. Many parents are often at a loss for what to do, and nothing can fully prepare you for what to do if your child suffers injuries because of medical malpractice. 

To make matters worse, Texas laws regarding birth injuries are very unfair and only recognize injuries sustained to infants born alive. If an infant dies in utero or during delivery, it’s usually impossible to bring a malpractice case.


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Medical Accidents Happen, but Many Birth Injuries Are Avoidable

Many physical changes happen to both a mother and her unborn child during pregnancy and labor. The different phases of development of a fetus all present an opportunity for a genetic defect or complications to go undetected. 

While failing to detect issues related to pregnancy early is not necessarily malpractice, there is a standard of care required by Texas law for hospitals and medical professionals. It becomes a matter of “should the doctor or medical staff has detected this,” and not just a matter of whether they did or not. 

Of course, getting straight answers from the hospital for a birth injury can be challenging, especially when medical professionals suspect their own medical mistakes or flawed hospital policies. This is where having an experienced Texas birth injury attorney reviewing your medical records and chronology of events is important. A skilled malpractice attorney will help you determine what occurred and whether it qualifies as malpractice under Texas law.


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Common Newborn Injuries That May Be Malpractice 

Here are the most common types of birth injuries that may be subject to malpractice claims:

  1. Head and brain injury: External trauma to the baby’s skull during childbirth is a common cause of hydrocephalus. Excessive pressure or force is frequently applied to the baby’s head during labor and delivery, causing tissue damage and rupturing blood vessels within the brain. An infant who sustains a head injury may require lifetime medical attention and lowered mental and physical function.
  2. The clavicle or collarbone fracture: These fractures are the most common injury newborns can suffer during birth. A clavicle fracture is a fracture in the collar bone because of a difficult delivery or birth trauma. Factors that may increase the risk of a clavicle fracture include the newborn’s size, the newborn’s shoulder becoming stuck during delivery, a narrow birth canal, or tools used to assist delivery. 
  3. Forceps or vacuum injury: When a baby becomes stuck in their mother’s birth canal during childbirth, a medical physician may use forceps and a vacuum to help deliver the infant. Injuries will occur if the devices are misused or used under the wrong circumstances.
  4. Face nerve injury, also known as Bell’s palsy: These injuries occur when a baby’s facial nerves suffer an injury during birth, mainly caused by doctors’ rough treatment, forceps, or other medical carelessness. While many youngsters regain control of their facial movements, others are permanently affected.
  5. Cerebral Palsy (CP): A neural disorder that affects muscle tone, coordination, and movement. These effects vary from one cerebral palsy child to the next, usually because of the type and severity of the disorder each individual has. Cerebral palsy is divided into four classes, each caused by abnormalities in different brain parts and manifests itself in different ways. According to the National Institutes of Health, spastic cerebral palsy is the most common disorder, accounting for roughly 80% of diagnosed cases. A neurological condition that affects a child’s muscle coordination and can lead to delays in speaking and other developmental milestones. There is no cure for this illness.
  6. Hypoxia: One of the most severe and life-threatening types of infant brain damage during childbirth is perinatal hypoxic-ischemic encephalopathy (HIE). HIE occurs when a baby’s brain’s oxygen and blood supply are restricted or interrupted during childbirth (perinatal asphyxia), causing brain cells to die after a short period. HIE is not only life-threatening, but it also causes long-term brain damage. Around 25% of those who survive will have permanent brain damage of varying degrees of severity. Physical disabilities and cognitive impairment are expected outcomes of HIE brain injuries.
  7. Erb’s palsy: This form occurs in newborns after a difficult vaginal birth or even during a cesarean section. Your healthcare provider may have to move your baby’s head to one side during delivery to allow for the delivery of their shoulders. Sometimes, nerve stretching results in damage, including tears. Erb’s palsy is also known as obstetric brachial plexus palsy or brachial plexus birth injury. 

What Should You Do If You Think Your Child Was Harmed during Birth?

If you believe your child was subjected to childbirth negligence or a lack of care and has suffered birth trauma, ‌document the events as accurately as possible to help protect your legal rights. Gather all the information you can, including 

  • All medical facilities and hospitals you visited for prenatal care and childbirth.
  • All physicians’ and medical professionals’ full names and contact information, including your OB/GYN.
  • Details of medical procedures, such as ultrasounds, fundal height measurements, etc. Include information about all procedures performed and recommended to you.
  • A list of all prescription medications you were taking before the birth.
  • An exhaustive timeline of events leading up to and including the birth.
  • Any concerns you had during your pregnancy, labor, and delivery.

After you’ve gathered all your evidence, you’ll need to speak with a lawyer specializing in birth injury cases. Providing as much documentation as possible will assist an attorney in preparing a strong birth injury case. 

How Much Does It Cost to Hire a Birth Injury Attorney? 

As with most personal injury cases, Texas birth injury attorneys charge a contingency fee – meaning they do not require any upfront payment from a client but ‌ will collect a predetermined percentage of any settlement or judgment award in the case.


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It is common practice in Texas for the law firm representing you to cover all the expenses involved with litigating your case. The Texas Disciplinary Rules of Professional Conduct oversee contingency fees for personal injury attorneys.

What Parties Can be Sued in a Birth Injury Lawsuit? 

Anyone in charge of your child’s care can be accountable for birth injuries, including;

  • Doctors
  • OBGYNs, pediatricians, and other specialties
  • Surgeons
  • Nurses
  • Anesthesiologists
  • Staff and administration at the hospital

You must identify everyone who may have played a role in your child’s birth injury. If the hospital or medical wing where the birth took place knew their equipment was faulty or their staff was irresponsible, they could be held liable.

What Damages Are Available for a Birth Injury Lawsuit?

The compensation in a Texas birth injury lawsuit is unique to each child, and seeking legal advice from an experienced attorney is your best option for determining damages. That said, should you win, you can expect to be awarded non-economic damages that cover things such as pain and suffering and economic damages that cover past and future medical expenses, as well as expenses to provide full-life care for a surviving child.

Texas tort reform laws currently limit the amount of non-economic damage a party may receive in a medical lawsuit to $250,000 per provider or facility, for up to three parties, for a max of $750,000. 

What is the Statute of Limitations on a Birth Injury Claim in Texas?

The filing of a birth injury claim in Texas is subject to the statute of limitations, which provides only two years to file a claim; however, when it comes to minors, you have ten years from the date of the injury to bring forth a claim. Cases relating to children under 12 can be filed until they turn 14.

If Your Child Was Injured at Birth, You Need an Experienced Attorney Handling Your Claim

Cases involving birth injuries can be quite complex. Medical specialists usually must review your claims and act as expert witnesses to testify on the case and any potential damages. The Snapka Law Firm Injury Lawyers not only have the experience and staff needed to evaluate your claims thoroughly, but they also understand the pain that such a situation brings to a family. We believe that if a medical professional’s negligence caused your child harm, you and your child are owed just compensation for the sake of your child’s future.

Our nationally recognized medical lawyers offer you the guidance and support you need in a caring and empathetic environment. We offer a free case review, and there are no out-of-pocket expenses for you when we take a case. If you want to know if preventable medical errors caused your child’s injuries, don’t hesitate to contact us for a free consultation.

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