Birth Injury and Obstetric Malpractice in Delaware

Parents who come to us about a birth injury are almost never asking whether they can sue. They are asking a quieter question: could this have been prevented? Often years have passed, a diagnosis has settled into daily life, and something about the delivery has never quite been explained.

That question has a real answer, but it lives in the medical records — the fetal monitoring strips, the nursing notes, the timeline of who was called and when. This article explains what a birth injury malpractice claim requires in Delaware, how cerebral palsy does and does not connect to delivery, and why the filing deadline for a young child works differently. It is one part of a larger topic; for the full picture, see our guide to medical malpractice in Delaware.

What is a birth injury malpractice claim?

A birth injury malpractice claim alleges that a physician, nurse, midwife, or hospital departed from the accepted standard of obstetric care during pregnancy, labor, or delivery, and that the departure caused a preventable injury to the mother or the baby. Injuries that occur despite competent care — and many do — are not malpractice. The claim turns on what the providers knew, when they knew it, and what a careful provider would have done.

In practice, most obstetric claims involve one of a handful of failures:

• Fetal monitoring not watched, or not acted on. Monitoring strips show patterns that signal a baby in distress. The claim is rarely that a provider missed a subtle reading; more often it is that a clear, worsening pattern was documented and nothing changed in response to it.
• A delivery that should have moved faster. When distress is recognized, the standard of care can call for expedited delivery, including a cesarean section. Cases frequently turn on the interval between the decision and the delivery.
• Mishandling a difficult delivery. Excessive traction where the shoulder is obstructed, or improper use of forceps or a vacuum extractor.
• Failing to identify and manage maternal conditions such as preeclampsia, gestational diabetes, or infection, that put both mother and baby at risk.
• Inadequate newborn resuscitation in the minutes after a compromised delivery.

As with any Delaware medical negligence case, the standard of care has to be established by a qualified medical expert, and the case has to show not only that care was substandard but that the substandard care caused the injury.

Cerebral palsy and medical negligence

This is the part that deserves care, because a great deal written about it online is misleading.

Most cerebral palsy is not caused by a birth injury. Medical literature consistently attributes the majority of cerebral palsy to factors that arise before labor begins — genetic conditions, developmental differences in the brain, prenatal infection, stroke, and complications of prematurity. A cerebral palsy diagnosis is not, on its own, evidence that anyone did anything wrong, and any source that suggests otherwise is not being straight with you.

What is also true is that a portion of cerebral palsy cases are associated with events during labor and delivery, particularly prolonged oxygen deprivation to the baby’s brain. Where that oxygen deprivation was recognizable on the monitoring, and where an earlier or different response would have prevented or limited the injury, a claim may exist.

Sorting one from the other is a records question, not a judgment you can make from home. The relevant materials generally include the fetal monitoring strips, the labor and delivery nursing notes, cord blood gas values drawn at birth, Apgar scores, neonatal imaging such as MRI, and the placental pathology if it was examined. A qualified obstetric expert and often a pediatric neurologist read those together and form an opinion about whether the injury pattern fits an event during delivery or something that preceded it.

The honest framing is this: some cerebral palsy cases are linked to preventable errors during delivery, and a review of the records is what tells you whether yours may be one of them. No one can tell you from the diagnosis alone.

Other common birth injuries

Brachial plexus injuries, including Erb’s palsy. The brachial plexus is the nerve bundle serving the arm and hand. It can be stretched or torn when a baby’s shoulder becomes lodged behind the mother’s pelvic bone during delivery — shoulder dystocia. Shoulder dystocia itself is an obstetric emergency, not negligence. The question is how it was managed: whether recognized maneuvers were used, or whether excessive traction was applied to the baby’s head and neck. Many of these injuries resolve; some leave permanent weakness or paralysis in the arm.

Oxygen deprivation and hypoxic-ischemic encephalopathy (HIE). An interruption in oxygen or blood flow around the time of birth can injure the brain. HIE is diagnosed in the newborn period and can result in seizures, developmental delays, cerebral palsy, or death. Where the deprivation was signaled on monitoring and the response was too slow, HIE cases are among the most serious obstetric claims.

Fractures and physical trauma. Clavicle and skull fractures can occur in difficult deliveries. Many heal without consequence. They become part of a claim where they reflect improper technique or where an associated injury — bleeding inside the skull, for instance — was not recognized and treated.

Untreated newborn jaundice. Severe, untreated hyperbilirubinemia can cause kernicterus, a permanent form of brain injury. Because jaundice is screened for and treatable, failures here are usually failures of monitoring and follow-up after birth rather than of the delivery itself.

Maternal injuries. Obstetric malpractice is not only about the baby. Undiagnosed postpartum hemorrhage, uterine rupture, retained surgical material after a cesarean, and untreated infection can cause serious harm or death to the mother. Where a pregnancy-related death is involved, the analysis moves into Delaware’s wrongful death framework, which is a different claim structure than an injury case.

Delaware’s extended statute of limitations for children

Most Delaware medical negligence claims must be filed within two years of the injury under 18 Del. C. § 6856. Birth injury is the significant exception.

For a child under the age of six, the statute allows the action to be brought by the later of the ordinary statutory period or the child’s sixth birthday. For an injury occurring at birth, that generally means a window running until the child turns six rather than until the child turns two.

That extra time is real, and it matters, because birth injuries are often not fully understood in the first two years. Developmental delays emerge on their own schedule; a diagnosis frequently arrives well after the delivery that may have caused it. Delaware’s rule exists precisely because a parent cannot always know at eighteen months what they will know at four years.

Two cautions, though. First, the extension is not open-ended, and it is not a reason to wait. Records get harder to obtain, staff move on, and memories of a specific shift fade. The strongest birth injury cases are built from a complete record set gathered while everything still exists. Second, the statute contains other provisions — including a discovery rule and a limited tolling period tied to a properly served notice of intent — whose application depends on facts a blog post cannot evaluate. A claim on behalf of a mother, as opposed to a child, follows the ordinary two-year rule.

Do not calculate your own deadline. Have a lawyer confirm it. Our full treatment of the timing rules is in Delaware’s statute of limitations and affidavit of merit requirement, explained.

What damages are available

Birth injury claims often involve the largest damages calculations in medical negligence, for a straightforward reason: the injured person is at the beginning of their life, and the needs run the length of it.

What a claim may account for typically includes lifetime medical care and therapy, assistive equipment and home modifications, special education and support services, in-home or attendant care, the child’s lost future earning capacity, and non-economic damages for the child’s pain and loss of the ordinary experience of life. These figures are not estimated informally. They are built by life-care planners and economists working from the child’s actual prognosis, then discounted to present value.

There is no standard number and no calculator that produces one honestly. See how damages are calculated in a Delaware medical malpractice case for how the categories work.

If you are wondering about your child’s birth

You do not need to have decided anything. What you need is for someone qualified to read the records and tell you what they show.

Murphy & Landon has represented injured people and their families in Delaware since 1992. If you want your child’s delivery records reviewed, contact us — a consultation costs nothing, and we will tell you plainly what we find, including when we find nothing. For the broader context on how these claims work, start with our guide to medical malpractice in Delaware.

This article is general information about Delaware law and is not legal advice. Reading it does not create an attorney-client relationship. A cerebral palsy or birth injury diagnosis does not by itself mean malpractice occurred. Every case depends on its own facts and records, and no result is ever guaranteed.