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Which Birth Injury Element Is Hardest To Prove?

Quick Answer

When it comes to winning a birth injury medical malpractice case, the hardest element to prove is usually the 2nd element, that the medical provider’s actions breached the duty of care they owed to the patient at the time. However, to prove medical negligence occurred, your attorney must be able to prove all four elements of negligence.

Contact Peter Angelos Law Today

If your newborn baby has been injured during your pregnancy or during the labor and delivery process, and you have reason to believe the injuries could have been preventable, you should contact one of our team here at Peter Angelos Law immediately.

Our team has been fighting on behalf of injury victims for over 60 years, giving us the experience and the knowledge to pursue all forms of medical malpractice claims.

We take time to build an attorney-client relationship based on trust and confidence. We will listen to your story with a compassionate ear, and as we fight your case, we will keep you informed and educated throughout, ensuring you are never left in the dark.

Call us today at 410-216-0009.

The Four Elements Of A Birth Injury Case

When it comes to medical malpractice cases involving negligence, there are four elements that will need to be proven if you want your case to be a successful one. This is why, before any attorney takes on a medical malpractice case, they will arrange a sit-down meeting with their potential clients.

This free initial consultation will usually include a free case evaluation. This meeting allows you to ask the important questions you need to ask about your potential birth injury lawsuit. It also allows your potential attorney to evaluate your case, ensuring it is valid.

For it to be a valid one, they must ascertain that they will be able to prove the four elements of a negligence case, which are:

Duty of Care

The first element of any negligence case is proving that at the time of the incident, the at-fault party owed the injured party a duty of care. A duty of care is a legal obligation to act reasonably to protect another party from harm. You might assume a duty of care to another person for many reasons.

They include the duty of care that all road users assume to other users of the road when they get behind the wheel of a car, the duty of care that private property owners owe to visitors to their property, and of course, the automatic duty of care that a medical provider owes to their patients.

Because all medical providers automatically owe their patients a duty of care, this is normally the easiest element to prove in a medical malpractice case.

Breach of Duty of Care

The second element, and almost always the most complicated element to prove, is that the at-fault party, i.e, your medical providers, acted unreasonably, breaching their duty of care to the victim.

For the at-fault providers to have acted unreasonably, your attorney will need to consider whether their actions differed from how a trained and reasonable person would have acted if they were placed in the same circumstances.

With birth injury cases, the medical providers responsible for looking after you and your child during your pregnancy and birth have been taught to adhere to strict medical practices, and this means if they have deviated from these practices, they have breached their duty of care.

They may also have breached their duty of care to you and your child if they did not perform adequate fetal monitoring or pay the due care and attention expected of them.

In a medical malpractice lawsuit, your attorney may need to work with medical experts and seek expert witness testimony that can prove that the actions of your medical provider did indeed breach their duty of care owed to you and your newborn child.


The third element to prove is causation, and proving causation is to prove that the medical negligence of your provider has directly caused your child’s birth injuries. This is usually pretty straightforward in a birth injury claim, as the injuries had to have been caused during the pregnancy or the labor and delivery process.

Your attorney will be able to use both your medical records and your child’s medical records to prove the injuries were directly caused by the medical malpractice.


The final element of a negligence case is proving that the injuries caused by the malpractice have led to the victims suffering economic and noneconomic damages they need to recover.

These damages include:

Economic Damages

Economic damages suffered by the newborn child and their parent relate to anything that is going to result in a physical sum or expense, including:

Medical Expenses

Following a birth injury, there may be the need for further medical treatment, procedures and medication, and this may continue long into the future. You should not be responsible for covering the costs of the treatment your child needs when they have suffered at the hands of a negligent medical provider.

Fortunately, if your birth injury malpractice case is successful, your attorney may be able to help you recover all of your medical expenses, from treatment to transport to and from the hospital. They may need to work with medical experts who can help them look to the future and assist them in calculating a sum that will cover all of the future medical costs that your child’s injuries may incur.

This is one of the reasons you should always discuss any settlement offers with your attorney, as the other party may attempt to get you to settle for a sum that seems attractive, but does not accurately cover the long-term scope of your child’s injuries.

Lost Wages/Income

If you or your spouse have had to take time off to deal with the injuries your child has suffered, you should not be left out of pocket for lost income as a result.

In a successful medical malpractice claim, you will be able to recover all of the wages that you have lost while you have been caring for your child. If your child’s injuries are severe enough, and you will not be able to return to work in the same capacity, your birth injury lawyer may look to financial experts who can help them to place a sum on your long-term losses.

Changes to The Household

If the newborn child’s injuries are going to require modifications to the house, such as the need for stair-lifts or specialist equipment, this should be covered.

Noneconomic Damages

Noneconomic damages are usually less tangible and will not have a clear figure attached, it will be down to your attorney to consider what they are worth.

Pain and Suffering

Pain and suffering damages compensate victims for the physical pain, emotional distress and mental trauma they have been subjected to due to their injuries.

This can include the physical pain of the injury itself and any psychological distress that may be associated with the injury. Pain and suffering damages can also include the physical and emotional discomfort associated with medical treatments and therapies and any pain related to physical limitations.

Pain and suffering can also cover the mental trauma and distress you have been put through as a parent having to watch your child suffer through their injury.

Loss of Companionship

In the most tragic of cases, your child may lose their life because of the negligent behavior of the medical providers responsible for their well-being. In these cases, parents may be able to pursue compensation for the loss of companionship.

Choosing The Right Maryland Birth Injury Lawyers

In order to ensure you have the most favorable chance of pursuing a successful case against your negligent medical providers, you will need to obtain legal representation from a skilled attorney.

Choosing an attorney with a reputation for winning cases will ensure that the other party treats you fairly and will make it more likely that they are willing to work with you in settlement negotiations as they will want to avoid a lengthy court battle with a strong litigator.

If you have never required legal representation before, you may not know where to begin when it comes to researching and choosing an attorney to represent you in your case.

Here are some things to look out for:

  • Experience – All medical malpractice claims are complicated. The laws are complex, and the insurance companies that defend medical providers will employ the most capable and skilled legal teams to reduce their payout. This means that your best option is to find an attorney that has a proven track record for winning cases similar to yours.
  • Legal Expertise – Your attorney must have a significant understanding of how personal injury, medical malpractice and birth injury cases work in terms of state law. They should be able to quickly assess your case and let you know whether they believe you have a valid claim and what your next steps should be.
  • Medical expertise – Your attorney is not likely to have medical training. Still, they should have a full understanding and strong knowledge of the medical field and access to various medical experts who can provide expert witness testimony.

Our Goal At Peter Angelos Law

We want all victims to have the opportunity to hold their medical providers responsible when they have acted negligently. For this reason, we take medical malpractice cases on a contingency fee basis and offer all potential clients a free initial consultation and case evaluation.

This means you can obtain our representation without any upfront costs, and if we cannot win your case, you won’t owe us a penny. This leaves you free to pursue your case confidently, without fear of being left worse off if you lose your case.

If we win your case, we take a flat percentage, as previously agreed upon, from any settlement that we win on your behalf.

Maryland Birth Injury FAQs

Are all birth injuries actionable?

Unfortunately, childbirth will always carry some risk, and sometimes a child is injured during the pregnancy or labor and delivery through no fault of their medical providers. If this is the case, and your medical providers followed the standard practices and gave you and your child their full due care and attention, you may not have a case against them.

However, if your medical provider has acted negligently by deviating from the standard practices, failing to carry out adequate fetal monitoring, or through a lack of due care and attention, and your child has suffered an injury, it was most likely preventable.

If your child has suffered a preventable birth injury, then you may have a case against the medical provider responsible.

How long do birth injury cases take?

Countless variables in a medical malpractice case make every case unique. These variables will control the length of time your case takes to reach its conclusion. Some cases may settle early, outside of court. This may be because the other party knows they will likely lose a court case against your attorney, for example.

Sometimes, the insurance company will opt to drag the battle out and fight you in court, as there is a chance they may win and will not have to pay out.

While every case is unique, medical malpractice cases of all types will usually take over a year to settle, with many lasting several years.

Do all birth injury cases go to court?

It is always within the best interests of both parties to come to an arrangement outside of court, which is why around 70% of cases will settle without the need for litigation in front of a judge.

30% of cases do end up in the courtroom, however, which is why you should always ensure that the attorney you have chosen to represent you is a skilled and aggressive litigator.

Contact A Maryland Birth Injury Lawyer Today

When your child has suffered a birth injury that may have been preventable, you are likely angry at your medical provider. You should not be left out of pocket, facing economic damages as a result of their negligence, and both you and your newborn child deserve to pursue compensation for the trauma you have been through.

For reliable and knowledgeable representation, contact Peter Angelos Law today. We have fought numerous cases and won numerous fair settlements in highly complex cases utilizing our years of experience in Maryland.

Call us today and arrange a free consultation at 410-216-0009.