Birth Injury Law

A birth injury to a baby occurs due to a complication in the labor or delivery process. It has been estimated that, for every 1000 babies born in the U.S., five will be injured during birth. A birth injury can happen because of an obstetrician’s use of an improper medical technique during delivery, or through improper use of a medical device such as forceps or a vacuum. Resulting harm to the baby can vary from lack of oxygen to severe head injuries.

Responsible Parties in Birth Injury Cases: Who Can Be Sued?


The claim for causing birth injury is not only limited to Doctors, but also extends to nurses, anesthesiologists, health care facilities, pharmaceutical companies, and others that provide health care services.




In case of any medical malpractice actions, hospitals can be directly held liable for their own negligence and can be vicariously held responsible for the negligence of their own employee. Vicarious liability means a party is held responsible not for its own negligence, but for the negligence of another.


Hospitals can be held liable under corporate negligence if the licensed care providers, such as doctors, physicians, nurses or other such staffs do not have the actual authority to provide the service they are providing. The hospitals must ensure that its each staff is authorized and licensed by required authorities to provide their service.


If a hospital fails to make reasonable inquiries regarding a member of its medical staff, it might be held liable under the “corporate negligence” doctrine for negligent supervision or retention, if the staff member’s negligent care injures a patient. A hospital might be held liable for its own negligence where, for example, it fails to investigate the credentials of an attending physician before granting him/her privileges at the hospital, or where it allows a physician whom it knew, or should have known, was incompetent, to treat patients at the hospital.


Hospitals are also required to ensure that there is a sufficient number of registered nurses on duty at all times to maintain quality patient care. A hospital that fails to do so may be held liable for injuries to patients resulting from a nursing shortage. Another area of potential liability arises when a hospital’s employees fail to follow the orders of a patient’s private attending physician. Conversely, if a hospital employee finds a private physician’s treatment plan to be clearly contraindicated, but fails to make a reasonable inquiry of the physician as to the treatment plan, the hospital could also be found liable.

Hospitals may be held liable for failing to protect patients from:


  1. Harm
  2. adequately perform clinical tests
  3. keep accurate medical records
  4. properly admit and discharge patients
  5. refusal to provide emergency service when required
  6. refusal of admission based on race, color, religion or national origin, or on their inability to pay for treatment.


Pharmaceutical Companies

In some cases, a pharmaceutical manufacturer may be liable where a drug caused a patient injuries, but only if the manufacturer failed to warn physicians of the drug’s potential side effects or dangers.


A pharmaceutical manufacturer’s primary duty is to inform physician. This generally keeps manufacturing companies out of liability for patient’s injury. As a responsibility towards the end consumer, the pharmaceutical companies have to ensure that the manufactured drug is safe when used as intended.


To ensure a drug’s safety, the manufacturer must research the drug’s possible side effects and risks before putting it on the market. If the pharmaceutical manufacturer fails to adequately warn a physician of a drug’s dangers, however, the drug becomes what is known under product liability law as “unreasonably dangerous,” and the manufacturer might be held liable for the failure to provide proper warnings.


In most of the cases the prescribed physicians are considered a learned intermediary which means that because of superior medical knowledge he or she is in the right position to judge whether the prescribed medicine is good for the patient or not. Thus, the physician has the primary duty of advising the patient of the risks and side effects of a medication or medical device he or she prescribes.


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