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How To Prove Medical Malpractice, Birth Injury Claims

Medical malpractice claims are complex and contentious. On the plaintiff's side, there is a suffering victim or family who has put their trust in medical professionals only to suffer painful, traumatic, and sometimes life-changing consequences. On the other side is a healthcare provider or healthcare system fighting for their reputation and perhaps their livelihood. The stakes are high, and it is essential to be able to present a strong, evidence-backed case. 

The birth injury attorneys at Morris James are skilled lawyers and passionate advocates for their clients. We represent the families of babies who have suffered birth injuries, such as cerebral palsy, brachial plexus injuries, hypoxic-ischemic encephalopathy (H.I.E.), and related brain injuries, fractures, and other conditions. We guide those families through the legal and practical challenges of a birth injury claim, and stand up to powerful healthcare systems and insurance companies, to help our clients get the compensation that they need and deserve for their child.

The Four Elements of Negligence 

As with any medical malpractice case, there are four key elements that must be established in any medical malpractice claim related to a birth injury: duty of care, breach of duty of care, causation, and damages. In order to prove these elements, the victim must present evidence to support each claim, including expert testimony, documentary evidence, and witness statements. Witness statements, medical records, imaging studies, and other documents, can be used to establish what happened before, during, and after the incident in question. 

Expert witness testimony is especially important in a birth injury case. Expert witnesses are typically medical professionals with extensive experience in the relevant field and knowledge about accepted practices within that specialty. They can offer invaluable insight into whether negligence occurred, and play a critical role in the outcome of your case. Retaining lawyers, like the birth injury attorneys at Morris James, who know which experts to retain for each particular issue in the case, can be the difference between winning a birth injury case and losing it. Similarly, an experienced birth injury attorney will be able to anticipate the healthcare provider’s defenses to your claim and will know how to rebut those defenses to ensure your claim is presented in the strongest possible light.

Although gathering all the evidence relevant to your claim and retaining medical experts to support your claim may seem daunting, hiring an experienced medical malpractice attorney, like the attorneys at Morris James, can make this process much less intimidating. By obtaining reliable records and witness statements, as well as having attorneys who know what expert testimony is needed and have worked with strong and reputable professionals, you will have a better chance at succeeding in your case and achieving justice for your family.

Duty of Care

In a medical malpractice case, the duty of care is owed by the healthcare provider to the patient. It is the legal obligation of a medical professional or institution to act according to accepted standards of care. This means that doctors, nurses, midwives, and other healthcare providers must perform services as a  reasonably prudent healthcare provider would under the same or similar circumstances. The duty of care also applies to hospitals and other medical facilities that provide medical care. Many factors impact whether the healthcare provider’s care was reasonable, including the patient’s medical history and risk factors, access to medical equipment and facilities, and decisions made by the healthcare team. A healthcare provider is expected to have up-to-date knowledge of practices in his or her field, as well as the skills to apply this knowledge in practice.

In a birth injury case, the law recognizes that the mother and/or baby are owed a duty of care by anyone providing labor and delivery services, which may include an obstetrician, a maternal-fetal medicine specialist, the labor and delivery nurses, the anesthesiologist, the neonatologist, the pediatrician, the NICU nurses, the radiologist, and all of the hospitals or clinics at which the mother or baby receives treatment. There can be complex legal relationships between each of these parties that make bringing a legal claim confusing to unrepresented plaintiffs. For example, a physician might be employed by the individual hospital, may work for a different entity in the health system, or could be an employee or partner of an entirely separate medical group that only has privileges at the hospital. Similar technicalities might apply to nurses and other providers. When faced with this corporate web, it is difficult for the family of a baby injured at birth to know who may be responsible for their child’s injuries. An attorney who is experienced in the area of medical malpractice, like the birth injury attorneys at Morris James, will be familiar with the way healthcare systems work and will know how to cut through the confusion to get the answers and compensation you need for your child.

Breach of Duty

A breach of the duty of care occurs when a healthcare professional or institution fails to meet the accepted standards of care, which can result in serious injury or death. To prove a breach of the duty of care, you will need to demonstrate how your doctor, hospital, or other healthcare provider fell short in their expected duties. You must be able to show that the healthcare provider did not act reasonably under the circumstances. 

Proving a breach requires expert witnesses, typically other physicians or medical professionals in the same or similar medical field, who can testify what a reasonable healthcare provider should have done in this situation. For example, if a pregnant woman exhibits dangerously high blood pressure at her prenatal appointment, but her physician does nothing and the mother subsequently has a stroke, an expert medical witness might testify that the physician should have ordered bed rest, early induction of the baby, or even an emergency cesarean section delivery. The defendant will typically try to argue that their course of action was not outside the scope of the reasonable standard of care and that other healthcare providers in the same situation would have done the same thing. The birth injury attorneys at Morris James know how to counter these, and other, responses and can retain appropriate experts to demonstrate that the healthcare provider acted inappropriately.


Causation links breach of duty with the actual injury suffered by your child. To succeed in your birth injury case, you must prove, usually with expert testimony, that the healthcare provider’s failure caused your baby’s injury. Evidence such as medical records, expert medical testimony, and other forms of evidence may be used to establish that the injury was caused by a departure from accepted standards of care and not some other unrelated factor. 

Even if the defendant acted unreasonably in treating the mother or the baby, the defendants may try to show that the baby would have been born with the same problems no matter how inappropriate the defendant’s care. While there are always risks in childbirth, and while some children may be born with unavoidable birth defects or injuries, it is your attorney’s job to prove that your child would not have suffered a birth injury if the healthcare provider had met the expected standard of care. It is important to have an attorney, and expert witnesses, who have the skills and experience to argue your side successfully.


Finally, you must demonstrate that your child suffered damages. Damages include physical or emotional harm, medical expenses incurred due to the injury, lost income if the injury impacted your ability to work or your child’s ability to work when he or she is older, or pain and suffering inflicted on your family as a result of the injury. For more information about the types of costs and losses that may be compensated in a birth injury claim, see our Birth Injury FAQs

Your attorney will help you gather the evidence needed to prove the harm caused to your child and your family. Medical records will document the diagnosis and treatment of a child after a birth injury. For example, your child may have required NICU care, an extended hospital stay, specialist therapies, and equipment, additional procedures and surgeries, in-home carers, or other support. Expert witnesses may be required to testify as to the child’s prognosis, life expectancy, and future care to provide proof of the extent of the harm caused to your child, physically, emotionally, and financially. Sadly, some children require lifelong care after a birth injury. The birth injury attorneys at Morris James know how best to prove all of the damages your child and family have suffered so that they can obtain the maximum compensation you deserve. 

What should you do next?

Filing a medical malpractice claim related to a birth injury is complicated. For guidance when navigating this process and proving negligence in court, you should consult with an experienced medical malpractice attorney who understands how these types of cases are handled. An attorney can help you gather the necessary evidence, build a strong case, and fight for all of the financial compensation for your child’s injury to which you are entitled. 

The birth injury attorneys at Morris James have extensive experience in the field of medical malpractice and cases involving injuries to babies and children. We will listen to your story and advise you on your legal rights and options when you or your child has suffered a birth injury. We routinely work with expert medical witnesses; negotiate settlements with physician groups, hospitals, and insurance companies; and fight for you at trial when that is the right choice for you.

At Morris James, our attorneys have been standing up for victims since we opened our doors in 1932. If you have questions about birth injuries, you may find answers in our Birth Injury FAQs, or you can contact us online or call us at 302.655.2599 to learn more.

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