Delaware Birth Injury Malpractice Lawsuits

In this post we will look at Delaware birth injury malpractice lawsuits. We will review some of the key points of Delaware law in birth injury cases and discuss the potential settlement value of these claims.

What Are Birth Injuries?

When a baby suffers some type of physical damage during the process of labor and delivery it is considered a birth injury. Childbirth is a notoriously difficult process for mother and baby and some birth injuries are a natural and unavoidable consequence of this. In many instances, however, a birth injury is something that could have easily been prevented and are the direct result of negligent medical care during labor and delivery. Some of the more common medical mistakes that cause birth injuries include:

  • Excessive pulling or twisting of the baby during vaginal delivery
  • Negligent use of birth assistance instruments such as forceps or vacuum extraction
  • Negligent administration of medicines like Pitocin to induce labor
  • Failure to monitor and properly to warnings on fetal heartbeat devices
  • Failure to schedule and perform an emergency cesarean surgery (C-section)

Common Birth Injuries

Below are the injuries that we see most frequently in Delaware birth injury malpractice lawsuits.

Cerebral Palsy: cerebral palsy is physical disability in which the brain is not able to transmit normal movement signals to certain muscles in the body. As a result, an individual with CP is not able to control those muscles like a normal person. Cerebral palsy is caused by damage to a baby’s brain triggered by oxygen deprivation during labor and delivery or earlier in pregnancy. There are a number of complications that can arise during childbirth that can cause oxygen deprivation. The doctor and the delivery team are supposed to prevent this from occurring by carefully monitoring the baby’s heart rate and intervening with an emergency C-section when a situation arises.

Erb’s Palsy: Erb’s Palsy is a common birth injury which leaves the child with partial or total paralysis in one arm. In some cases, the arm will remain permanently disabled. Erb’s Palsy occurs when nerves in the brachial plexus nerve junction (located where the neck meets the shoulders on both sides) are damaged from physical trauma during childbirth. Damage to these nerves disrupts the brain’s ability to control movement of the arm and hand.

HIE: hypoxic-ischemic encephalopathy (HIE) or perinatal encephalopathy is a very serious type of injury to the baby’s brain that can sometimes occur due to complication during birth. HIE is caused by an acute loss of oxygen and blood to the baby’s brain during delivery. Various complications such as compressed umbilical cord, ruptured uterus, or placental abruption can cause this type of oxygen deprivation and result in HIE.

Bone Fractures – Fracture of the clavicle or collarbone is the most common fracture during labor and delivery. This can occur when the physician pulls on the infant too hard or when the shoulder is forcefully pulled during a prolonged delivery.

Delaware Statute of Limitations in Birth Injury Cases

Under Delaware’s statute of limitations for medical malpractice claims, a birth injury lawsuit must be filed within 2-years after the causes of action “arises” (Del. Code § 6856). So when does the cause of action arise? Unlike many other states, Delaware does not follow the “discovery rule” for determining when a cause of action arises (and the SOL period begins). This means that Delaware’s 2-year deadline starts on the date that the alleged medical malpractice occurs (not when it was reasonably discovered).


In factual circumstances where the medical negligence could not possibly have been discovered within the 2 year period, Delaware law allows the limitations period to be extended by 1 year (Del. Code § 6856(1)). This makes Delaware’s statute of limitations one of the strictest in the country.

In a birth injury malpractice case, both the injured child and the child’s parents can assert their own separate causes of action against the defendants. The parents can sue for compensation for the expenses incurred in caring for the child until they turn 18 and for related pain and suffering. The child can sue for pain and suffering, future medical expenses (after they turn 18) and diminished earnings capacity over the course of their adult life (if the injury leaves them permanently disabled).

The separate claims of the parents in a birth injury will be governed by the general 2-year statute of limitations period for malpractice actions. In most cases, that 2-year period will begin to run from the date of the child’s birth (which is also the date of the injury in most birth injury cases).

The injured child’s separate malpractice claims in a birth injury case are subject to an extended statute of limitations. Under Delaware law, the injured child in a birth injury claim has until their 6th birthday to file a malpractice lawsuit.

What is Required to Prove a Birth Injury Malpractice Claim in Delaware?

To prove a birth injury medical malpractice claim under Delaware Medical Malpractice Act, the plaintiff needs to prove three key elements.

First, the plaintiff needs to establish what the applicable standard of medical care was under the circumstances. In other words, the plaintiff has to show what a reasonable doctor was supposed to do under the same circumstances.

Second, the plaintiff will need to prove that the actions of the defendants somehow deviated or failed to meet the applicable standard of care. This is where the plaintiff needs to show that the doctor or hospital staff made a mistake, or were negligent in some way.

Finally, the plaintiff must present evidence to show that the alleged birth injury was directly caused by the defendant’s error or medical negligence (and not by something else).

Delaware Medical Malpractice Damages Cap

Unlike many states, Delaware does not have a cap on damages in birth injury lawsuits. Having no cap on pain and suffering damages in birth injury lawsuits can significantly impact the birth injury settlement amounts in Delaware.

Without a cap on pain and suffering or any other damages, jurors have nearly unlimited power to award payouts that meet awful injuries our lawyers see in birth injury claims.  This leads to higher compensation amounts from defendants who are more motivated to avoid going to trial and facing the possibility of an even larger jury award.  Knowing that there is no maximum payout a jury can award makes defendants  more willing to settle for a higher amount to avoid the uncertainty of a trial verdict.

The Collateral Source Rule in Delaware Malpractice Lawsuits

Until recently, Delaware law allowed all victims in personal injury cases to request compensation for the full amount of the bills, even though only a small portion was actually paid and the rest was legally erased.  Under its modified collateral source rule, Delaware jurors were told about insurance payments (unlike most states) but were free to assume the victim was on the hook for the rest of the payments, even if the insurance company wrote off the rest of the bill.

In 2015, the court carved out an exception the Delaware Supreme Court carved out a specific exception when the advantage of the write-off is attributed to taxpayers in a government-sponsored health insurance programs such as Medicare and Medicaid.  They expanded the exception to include Tricare in 2022.

It is unclear if this logic extends to the future medical care, which is often biggest item of damages in almost every severe birth injury lawsuit in Delaware. This is only a concern the child is expected to use a government health insurance plan for the rest of the child’s life.

Certificate of Merit Required for Delaware Birth Injury Cases

In order to file a birth injury malpractice lawsuit in Delaware, the plaintiff must submit an “affidavit of merit” from a qualified medical expert (Del. Code § 6853). If a malpractice lawsuit is not supported by an affidavit of merit it will be automatically dismissed.

The affidavit of merit is essentially a written statement of opinion from another doctor of the same specialty as the defendant) which certifies that the plaintiff has “reasonable grounds” for his or her malpractice claims. This means that just to file a malpractice lawsuit in Delaware, a plaintiff first has to get another doctor to review the case and confirm that the doctors were negligent.

Settlement Value of Delaware Birth Injury Cases

Birth injury malpractice lawsuits in Delaware can be worth a great deal of money because the injuries are life-changing. Calculating a settlement amount for a birth injury case in Delaware can be a complex process. There are several factors to consider and the factors have varying weights.  So there is not a settlement calculator – determining what a Delaware birth injury lawsuit is worth is an art, not a science.  It is important to consult with an experienced birth injury attorney who can help you navigate the legal process and determine what is fair settlement amount for your case.

Here are some factors to consider when calculating a settlement amount of Delaware birth injury lawsuit:

  • Determine economic damages: Economic damages are the financial losses resulting from the birth injury. They can include past and future medical expenses, rehabilitation costs, and any necessary medical equipment or home modifications. These costs can be estimated by reviewing medical records and invoices, consulting with medical experts, and projecting future medical expenses based on the child’s needs and the expected cost of care. This is usually the primary driving force for the settlement amount of a birth injury claim in most jursidictions.   Delaware’s lack of a cap on pain and suffering damages in a birth injury lawsuit makes economic damages one of two driving forces in calculating expected payouts.
  • Calculate non-economic damages: Non-economic damages are the non-financial losses related to the birth injury. These can include pain and suffering, emotional distress, and loss of quality of life. Calculating non-economic damages can be challenging, as there is no set formula. It it what a jury decides.  An attorney may use past case settlements and jury payout and their own experience as a guide.  But, again, even the best birth injury lawyers can only provide you with a settlement value range.
  • The strength of the liability: To get a settlement, the hospital or insurance company has to know you can win at trial.  The strength of your case and the likelihood of a favorable verdict will drive the settlement amount. If you have strong evidence and a high chance of success in court, the defendant will make a larger settlement offer.
  • Jurisdiction: Settlement values vary by county in every state, including Delaware.  Settlement payouts in malrpractice claims will generally be higher in New Castle County than in more remote elements of the state.

Delaware Birth Injury Settlements & Verdicts

Below are several verdicts and reported settlements from birth injury malpractice cases in Delaware.  There are not many birth injury lawsuits in Delaware and even fewer that are not bound by confidentiality agreements for settlement amounts.  But these few results are still instructive along with other settlement determination tools to better understand the potential range of values for you and your child’s claim.

  • $4,000,000 Verdict: child suffered brain injury from loss of oxygen and was diagnosed with cerebral palsy. Birth injury lawsuit alleged that the hospital staff were negligent in failing to diligently monitor the fetal heart strips and call the doctor when warning signals appeared. The suit also alleged that the doctor failed to properly manage the pregnancy and treat the delivery as high risk.
  • $225,000 Settlement: defendant midwives failed to diagnose intrauterine growth retardation during plaintiff’s pregnancy or placental abruption the day before she delivered a stillborn child. In addition, plaintiff claimed emotional distress when defendant’s newsletter listed the stillbirth as a live one. Case settled for $225,000.
  • $3,535,000 Settlement: newborn male suffered cerebral palsy and severe mental deficiency from oxygen deprivation during childbirth at the defendant hospital. The lawsuit alleged that the defendants improperly diagnosed that the mother had suffered a miscarriage, administered medications to the mother that were contraindicated during pregnancy since they restricted blood flow to the uterus.

Contact Miller & Zois about Your Delaware Birth Injury Case

Miller & Zois handles birth injury claims. If you have a birth injury case call us today at 800-553-8082 or get a free consultation online.

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