Illinois Birth Injury Malpractice Law

This page will review Illinois medical malpractice cases involving birth injuries. We will explain some of the relevant laws in Illinois and look at the settlement value of Illinois birth injury lawsuits.

About Birth Injuries

The term “birth injury” simply refers to physical harm inflicted on a baby due to something that happens during the process of labor and childbirth. Unlike birth defects, birth injuries are not genetically inherited. Birth injuries are most often the result of medical negligence during delivery.

Common Types of Medical Negligence in Birth Injury Cases

The majority of birth injuries are the result of negligent medical care during the labor and delivery process. The most common types of medical negligence alleged in birth injury cases are described below.

Failure to Perform a C-Section

When things start to go wrong during labor and delivery, performing a C-section instead of a vaginal delivery is often the most effective tool that doctors have to avoid harm to the baby and prevent birth injuries. For this reason, the most common type of medical negligence alleged in birth injury cases is that the doctor negligently failed to perform a C-section delivery (either a scheduled C-section or an emergency C-section).

Fetal Monitoring Negligence

Fetal monitoring devices allowing the delivery team to track the baby’s heart rhythm throughout the labor and delivery process. The whole point of these monitoring systems is to alert the doctors when the baby is under threat. The device will alert the delivery team if the baby’s heart rate suddenly becomes abnormal so that the doctor can intervene with an emergency C-section to avoid birth injuries. For these devices to work, however, the delivery team must carefully monitor them and the doctor must properly interpret warning signs. Many birth injury cases involve allegations that the delivery team failed to monitor the fetal heart rate or ignored warning indicators.

Vacuum and Forceps Errors

Obstetrical forceps and vacuum extractors are instruments that doctors will sometimes use to grip a baby’s head and help maneuver it through the birth canal. These tools are only utilized in difficult vaginal deliveries in which the baby is stuck or not progressing through the birth canal normally. These instruments require a high degree of technical skill and technique. If the doctor does not use them carefully and correctly, these tools can easily cause serious injuries to the baby.

Failure to Diagnose and Manage Complications

When doctors fail to diagnose obstetric complications or mishandle them it can result in birth injuries. Complications that can result in birth injuries if not properly diagnosed and managed include prolapsed umbilical cord, fetal macrosomia, and preeclampsia.

Common Birth Injuries in Illinois

  • Erb’s Palsy: – Paralysis of the arm resulting from trauma the brachial plexus nerve junction at the base of the neck which allows the brain to control movement of the arms and hands.
  • Cerebral Palsy: Cerebral palsy is a physical disability in which the brain is not able to control the normal movement of muscles in the body. Cerebral palsy is one of the most serious types of birth injuries and it is caused by damage to the baby’s brain from oxygen deprivation during labor and delivery.
  • Brain Injuries – If the supply of oxygen to the baby is cut of or interrupted for even a short period of time during delivery cells in the brain will die, resulting in permanent brain damage.
  • Caput Succedaneum – Swelling of the soft tissue of the baby’s scalp caused by pressure on the head as it passes through the birth canal. This can occur when a physician improperly uses a vacuum extraction tool.
  • Cephalohematoma – bleeding just outside the baby’s skull which often appears as a raised bump several hours after birth. This can occur when physicians improperly use birth assisting tools.


Statute of Limitations for Illinois Birth Injury Claims (Minor Plaintiffs)

Under Illinois law, a birth injury lawsuit on behalf of a child must be filed within 8-years of the child’s injury. So when the injury occurs at birth, the birth injury lawsuit must be filed before the child’s 8th birthday. However, if the birth injury renders the child “disabled,” the statute of limitations on their birth injury claims can be extended until the child turns 22.

Section 735 ILCS § 5/13-212(b). These rules apply to birth injury claims brought on behalf of the injured child themselves.

Illinois Statute of Limitations for Malpractice Lawsuits (Parent Claims)

The claims of parents in Illinois medical malpractice cases involving birth injuries are subject to a 2-year statute of limitation. This means that all birth injury claims by the parents of the injury child in Illinois must be filed within 2 years of the date that the “claim accrues” or they will be legally barred and the plaintiff will lose their right to file suit. 735 ILCS § 5/13-212(a)

So when does the “claim accrue” in Illinois? Illinois follows the discovery rule, which means that the 2-year statute of limitation period begins to run when the plaintiff first knew or should have known that they had a injury that was possibly caused by malpractice. In birth injury cases, the claim generally accrues when the baby is diagnosed with a birth injury. This usually happens either in the first week or two after birth, or within the first year.

Illinois 4-Year Statute of Repose

Section 13-212(a) of the Illinois Code of Civil Procedure is “divided into two parts, containing both a statute of limitations and a statute of repose” for Illinois medical medical negligence lawsuits.  It is worth quoting the relevant part of the statute:

No lawsuit for damages due to injury or death against any licensed physician, dentist, registered nurse, or hospital in this state, based on tort, breach of contract, or any other cause arising from patient care, can be initiated more than two years after the claimant knew or should have known about the injury or death for which damages are sought, but under no circumstances can the action be brought more than four years after the act or omission that allegedly caused the injury or death occurred.

The medical negligence statute of limitations is interpreted within the context of the “discovery rule,” which means the two-year limitations period starts when the party knows or should know about their injury and that it was wrongfully caused. The purpose of a statute of repose in Illinois is to limit the extended liability that may result from the discovery rule.  So the statute of repose sets a cap on the applicability of the discovery rule.

Sections 13-211(a) and 13-212(c) of the Code establish tolling provisions applicable in negligence lawsuits. Section 13-211(a) applies to general negligence actions and states that if a person entitled to bring an action is under a legal disability at the time the cause of action accrues, they may bring the action within two years after the disability is removed. Section 13-212(c) applies to medical negligence claims and states that if a person entitled to bring an action is under a legal disability other than being a minor which is they key exception we talk about above, the limitations period does not start until the disability is removed. Id. § 13-212(c) (West 2018).

Proof Required in an Illinois Birth Injury Case

The plaintiff in an Illinois birth injury malpractice case will need to prove 3 basic elements to establish a successful claim:

  1. The plaintiff will need to show what the applicable standard of medical care was under the circumstances (i.e., what the doctor(s) should have done).
  2. The plaintiff must show that the defendant(s) actions did not meet the applicable standard of care (i.e., that the defendant provided negligent medical care).
  3. The plaintiff must show that the negligent medical care provided by the defendant(s) was the direct cause of the birth injury.

Establishing these elements in Illinois requires expert testimony from a qualified expert.

Steps to Filing a Birth Injury Case in Illinois

The process of filing a birth injury claim in Illinois involves several steps:

  1. Expert Affidavit: Before filing a birth injury lawsuit, the plaintiff must obtain an affidavit from a qualified healthcare professional stating that they have reviewed the relevant medical records and believe that there is a reasonable basis for the claim.
  2. Notice of Intent: The plaintiff must provide the healthcare provider with a written notice of intent to file a birth injury lawsuit at least 60 days before initiating the lawsuit.
  3. Filing the Complaint: The plaintiff or their attorney will file a formal birth injury legal complaint with the appropriate court, outlining the allegations of negligence, the injuries sustained, and the damages sought.
  4. Discovery: During the discovery phase, both parties gather and exchange information and evidence relevant to the case. This may include witness depositions, expert testimonies, and medical records.
  5. Pretrial Motions: Both parties may file pretrial motions, asking the court to make decisions on specific issues before the trial begins. These motions can include requests to dismiss the case, exclude evidence, or compel the other party to produce additional information. Often in Illinois birth injury lawsuits, the key to the case is what evidence gets admitted and what evidence gets excluded.
  6. Mediation or Settlement Negotiations: Many medical malpractice cases in Illinois are resolved through mediation or settlement negotiations before reaching trial. During this process, both parties attempt to reach an agreement on the damages and other terms to resolve the case without a trial. This is an off-ramp that parties often take to reach a settlement before a trial.
  7. Trial: If the case proceeds to trial, both parties will present their arguments, evidence, and witness testimonies before a judge or jury. The judge or jury will then determine whether the healthcare provider is liable for the plaintiff’s injuries and, if so, the amount of damages to be awarded.
  8. Appeal: If either party is dissatisfied with the outcome of the trial, they may appeal the decision to a higher court. The appellate court will review the case for legal errors and may uphold, reverse, or modify the trial court’s decision.

Comparative Negligence in Illinois Birth Injury Cases

Illinois follows a modified comparative negligence rule, which means that a plaintiff’s recovery may be reduced if they are found to be partially at fault for the injury. If the plaintiff is found to be more than 50% at fault, they are barred from recovering any damages. Obviously, in a birth case, the child is blameless.  But this rule applies if the mother’s actions during pregnancy or childbirth contributed to the injury. For example, if the mother failed to follow medical advice or did not disclose pertinent medical information that would have influenced the standard of care, her comparative negligence could impact the outcome of the case.

Experts in Illinois Birth Injury Claims

Expert witnesses play a critical role in birth injury lawsuits in Illinois, as they provide invaluable insights and testimony to help establish liability and prove the elements of a medical malpractice claim.

Proving liability in a birth injury case requires demonstrating that the medical professional breached the standard of care and that this breach directly caused the injury. Expert witnesses play a critical role in establishing liability, as they can provide testimony on the accepted standard of care and how the medical professional deviated from this standard.

Our law firm has spent years developing expert witnesses that have the background and credibility to earn trust from hospitals and insurance companies for settlement purposes and from juries if the case goes all the way to a verdict.

This is what our experts do:

  1. Establishing the standard of care: Expert witnesses, usually medical professionals with experience in the same field as the defendant, can provide testimony on what a good doctor should do in that situation.
  2. Identifying the breach of duty: After establishing the standard of care, expert witnesses can provide their opinion on how the defendant deviated from that standard. You need an expert who can explain in human terms why the doctor or nurse made a mistake and why a good doctor should not make that mistake.
  3. Demonstrating causation: Proving the doctor made a mistake is not enough.  You have to prove that mistake caused the birth injury. Expert witnesses can connect the defendant’s actions or inactions to the injury, explaining how their deviation from what a good doctor would do resulted in the harm suffered by the child. T
  4. Quantifying damages: Experts can also provide valuable input on the extent of the child’s injuries, the expected prognosis, and the future needs of the child. They can assess the costs of medical treatment, rehabilitation, and ongoing care, helping to establish the amount of economic damages being sought in the lawsuit.  Besides the medical doctors, these experts often include:
    • Life care planners: Life care planners are professionals who specialize in evaluating the long-term needs of individuals with disabilities. They can develop a comprehensive life care plan, detailing the future medical treatments, therapies, and support services required by the child. This plan can serve as a basis for calculating the economic damages associated with ongoing care.
    • Rehabilitation specialists: Rehabilitation specialists, such as physical therapists, occupational therapists, and speech therapists, can provide assessments of the child’s current and future therapy needs. They can outline the frequency and duration of therapy sessions, as well as the costs associated with these services.
    • Special education consultants: Children with birth injuries may require specialized educational support and accommodations. Special education consultants can evaluate the child’s educational needs, recommend appropriate support services, and estimate the costs of providing these services throughout the child’s educational journey.
    • Vocational experts: In cases where the birth injury will affect the child’s ability to work in the future, vocational experts can evaluate the child’s projected employability and earning capacity. They can provide testimony on the impact of the injury on the child’s ability to perform various types of work and estimate the potential loss of future wages.
    • Economists: Economists can help quantify the economic damages in a birth injury case by analyzing the costs associated with medical treatments, therapies, educational support, and lost future earnings. They can also calculate the present value of these future costs, taking into account factors such as inflation, interest rates, and life expectancy.

Damages for Birth Injuries in Illinois

Under Illinois law, both the injured child and the parents can seek compensation for a birth injury in the form of damages. Illinois law does not have any maximum limits or caps on the damages that can be recovered in birth injury medical malpractice cases. The categories of recoverable damages in an Illinois birth injury case include:

  • Economic Damages: economic damages include all past and future medical expenses related to the birth injury, as well as lost future earnings or reduced earnings capacity if the injury leaves the child unable to maintain normal employment as an adult. This can be a big category of damages in birth injury cases involving serious, lifelong injuries like cerebral palsy.
  • Non-economic Damages: non-economic damages basically refers to damages for mental pain & suffering caused by the birth injury. Both the child and the parents can get damages for pain and suffering.

How to Project Ilinois Birth Injury Settlement Amounts

One of the harder things a birth injury lawyer must do is project settlement amounts for a family’s lawsuit.  But you need to know what a settlement amount should be to advise the client on their settlement options.  Determining the settlement amount in a birth injury lawsuit can be a challenging task for attorneys, as there are many factors that can affect the final settlement amount. Birth injury cases can be particularly complex, and the amount of damages awarded can vary widely depending on the specific circumstances of the case.

Another challenge in projecting settlement amounts in birth injury cases is the complex legal and medical issues involved. Birth injury cases often require extensive medical testimony and expert analysis, and determining liability and the extent of damages can be a complicated and time-consuming process. Additionally, the laws and regulations governing birth injury cases can vary widely depending on the jurisdiction, making it difficult for attorneys to accurately predict the outcome of a case.

Finally, the emotional toll of birth injury cases can make it difficult to accurately project settlement amounts. Birth injury cases can be emotionally charged and highly stressful, and the impact of the injury on the child and their family can be significant. This emotional impact can make it difficult for attorneys to maintain objectivity and accurately project the amount of compensation that will be needed to provide for the child’s long-term needs.

In summary, projecting settlement amounts in birth injury cases can be a complex and challenging task for attorneys. The long-term nature of the injuries, complex legal and medical issues, and emotional toll of these cases can all make it difficult to accurately predict the outcome of a case and the amount of compensation that will be needed to provide for the child’s long-term needs.

There are several factors that may be considered when determining the settlement amount in an Illinois birth injury lawsuit. Some of the key factors include:

  1. The severity of the injury: The extent and severity of the injury suffered by the child will be a major factor in determining the settlement amount. In general, more severe injuries that require ongoing medical care and treatment are likely to result in higher settlements.
  2. The long-term prognosis: The long-term prognosis for the child will also be considered. If the child is likely to require ongoing medical care and treatment for years to come, the settlement amount may be higher. This is the main challenges in projecting settlement amounts in birth injury cases: the long-term nature of the injuries suffered by the child. In many cases, the child may require ongoing medical care and treatment for years to come, and the full extent of the financial and emotional impact of the injury may not be known for some time. This can make it difficult to accurately project the amount of compensation that will be needed to provide for the child’s long-term needs which is why you need to carefully drill down with the economic cost experts to get the number correct.  You need to figure out what to ask a jury for… and what a jury is most likely to ultimately find.
  3. The defendant’s liability: You need liability to get any payout at trial.  But if liability is extablished, the defendant’s liability and degree of both culpability and “dislikeability” before the jury impact jury payouts which informs expected settlement compensation.
  4. Economic damages: Economic damages such as medical expenses, lost wages, and the cost of ongoing medical care and treatment will also be considered in determining the settlement amount.
  5. Non-economic damages: Non-economic damages such as pain and suffering, emotional distress, and the loss of enjoyment of life will also be considered in determining the settlement amount.
  6. Punitive damages: In cases where the defendant’s conduct was particularly egregious, punitive damages may also be awarded, which can significantly increase the overall settlement amount. This is not the usual situation.  Our birth injury lawyers usually encounter well intentioned doctors who made a devestating but honest mistake. But there are also cases where the doctor simply did not care enough and juries push this with or without the vehicle of punitive damages.

Illinois Birth Injury Verdicts and Settlements

Below are summaries of jury verdicts and publicly reported settlements from recent Illinois birth injury malpractice cases.

  • $40,000,000 Verdict (2023): This is a delayed C-section case. The mother experienced a placental abruption, but the necessary medical intervention was significantly delayed. As a consequence, the child suffers from a seizure disorder, mild cerebral palsy, and speech and developmental delays.  The family filed a birth injury lawsuit and received a $3 million settlement offer. They choose trial instead.  A Coles County jury came back with a $40 million award.
  • $11,000,000 Settlement (2023): The plaintiff was delivered at the hospital. The fetal monitor tracings allegedly showed adverse changes, but the defendant obstetrician opted not to perform a Cesarean delivery but waited for the mother to deliver vaginally, causing a 30-minute delay and ongoing hypoxic-ischemic insults to the plaintiff. The plaintiff suffered hypoxic-ischemic brain damage leaving him with permanent disabilities and mental deficiencies.
  • $35,000,000 Settlement (2023): Premature twins were born at Evanston Hospital. The doctor was accused of leaving the hospital during his shift, being late for surgery, using a transverse incision instead of a vertical incision, and taking a stunning 14 minutes to deliver the second twin, who later had severe disabilities and cerebral palsy. The case went to trial but ended in a deadlocked jury. In an unrelated case, the pleaded guilty to sexual abuse, prompting the hospital to reach a $35 million settlement with the family to end the lawsuit.
  • $14,000,000 Settlement (2019): The plaintiff, a newborn female, allegedly suffered hypoxic ischemic encephalopathy, mental and motor deficits, including cerebral palsy, and emotional and psychological trauma after a vaginal delivery performed by the staff at the defendant Cook County Health and Hospital System. The lawsuit alleged that the defendant was negligent in failing to recognize and respond to signs of fetal distress and intervene with a C-section to avoid harm to the baby.
  • $48,195,000 Settlement (2019): A pregnant woman went to the hospital at 37 weeks with symptoms of preeclampsia but was sent home. She came back 3 days later with even more concerning signs of problems, including fetal heart tracings showing signs of stress, and was sent home again. She came back the next day and had an emergency C-section but the baby had already suffered significant oxygen deprivation and was born with very serious and permanent brain injuries. The case initially went to trial in Chicago and a jury awarded over $100 million, but the parties subsequently agreed to settle for $48.1 million to avoid a prolonged appeal.
  • $16,000,000 Settlement (2018): Baby suffered a subdural hemorrhage (brain bleed) during delivery at Swedish Covenant Hospital. The baby was eventually diagnosed with cerebral palsy and seizures as a result of the brain bleed. The lawsuit claimed that the brain bleed was caused by the doctor’s negligent attempt to use a vacuum pump extractor to facilitate vaginal delivery.
  • $12,000,000 Verdict (2016):  A lawsuit alleged that the defendants were negligent in failing to recognize the fetus was in distress during labor; failing to take appropriate steps to deliver the child once the fetus showed signs of fetal distress; negligently ordered or gave Pitocin in light of fetal distress and non-reassuring FHT patterns; and failed to timely perform a C-section. The baby suffered serious brain damage as a result of oxygen deprivation. A jury in Cook County awarded $12 million split between the hospital and the OB/GYN defendants.
  • $7,500,000 Settlement (2011): The plaintiffs alleged that the doctors negligently administered Pitocin to try to rush a vaginal delivery even though the fetal monitoring strips were showing warning signs from the very start of labor. The baby subsequently suffered oxygen loss and permanent brain damage during delivery. The defendants, a hospital and OB/GYN practice agreed to settle the case for $7.5 million.

 Contact Miller & Zois About Illinois Birth Injury Cases

Contact Miller & Zois today for a free consultation about potential birth injury malpractice cases in Illinois. Call us at 800-553-8082 or get a free online consultation.

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