Negligence Cause A Birth Defect? Consider Filing A Birth Defect Lawsuit

Expecting parents shouldn’t have to worry about filing a lawsuit over a birth defect. 

But each year, 3 percent of all babies born in the US have a birth defect of some sort. (Source: CDC)

And some of those defects are caused by negligence.

Pregnancy is both the most exciting and nerve-racking time in many women’s lives. Will the delivery process go smoothly? What happens if there are complications during pregnancy, labor, or delivery?

Then, there’s the questions that must be answered when there’s a birth defect.

We’ll focus on answering those questions today:

  • When is a lawsuit the best path forward?
  • How do you know you have a case?
  • What types of birth injury negligence should you be aware of?
  • What types of birth defects are often caused by negligence?
  • What causes birth defects?
  • Which medications can cause birth defects?

Let’s talk about that.

Birth defects caused by medical malpractice are much more common than we’d like to think. If you or your child has suffered a birth injury due to the negligence of a medical professional, reach out. Contact Hampton & King, to explore your options for filing a birth defect lawsuit. Keep reading to learn more.

Pregnant mother marking on a calendar, presumably her baby's due date.

When Is A Birth Defect Lawsuit Warranted?

Medical malpractice can occur at any stage of birth, from pregnancy to birth. It can also occur in a variety of ways. Whenever there’s a breach in the standard of care and an injury occurs, you may have a case of medical malpractice.

Here’s how medical professionals may act negligently during pregnancy:

  • Failing to perform a proper ultrasound
  • Reading an ultrasound incorrectly
  • Prescribing medication unsuitable for pregnancy
  • Failing to perform certain tests
  • Reading test results incorrectly
  • Failing to communicate any risks with patient

Doctors and nurses commit medical malpractice during labor and delivery too.

Here are a few examples of negligence during those times:

  • Failure to monitor baby’s heart rate
  • Surgical errors
  • Medication errors
  • Anesthesia complications
  • Delaying a c-section
  • Prolonging labor
  • Prescribing the wrong type of medication
  • Prescribing the wrong amount of medication
  • Misdiagnosing the mother or baby

These errors can result in birth defects and other injuries to the child. If a medical professional overlooks something or acts outside of the standard care, and that results in an injury, you may be able to file a claim. And if the injury causes a birth defect, you may want to file a birth defect lawsuit. 

What Are The Types Of Birth Defect Lawsuits?

A birth defect lawsuit is a birth injury lawsuit. And there are two types of birth injury lawsuits:

1. Medical Malpractice

When the doctor or another medical professional fails to uphold the proper standard of care, and the baby is injured as a result, this is medical malpractice. (Due to negligence.)

2. Wrongful Death

Wrongful death is basically the same thing, but instead of an injury, the result is death. When the doctor or another medical professional fails to uphold the proper standard of care, and the baby passes away as a result, this is wrongful death.

Both are legitimate reasons to seek justice in court. But what sorts of birth defects can be caused by negligence?

Common Malpractice Birth Defects

Anytime a birth defect occurs, it’s scary and tragic. And if the injury is one that’s easily preventable, it makes matters worse. Sometimes, these preventable injuries can result in a lifelong disability.

Some common birth defects that can be caused by negligence are:

  • Down syndrome
  • Spina Bifida
  • Congenital heart defects
  • Broken bones
  • Head deformities
  • Limb deformities
  • Cleft palate/lip
  • Neural tube defects
  • Erb’s palsy
  • Cerebral Palsy
  • Brachial palsy

According to the CDC, the most common birth defects are:

  • Down syndrome
  • Cleft palate
  • Clubfoot
  • Cleft lip with cleft palate
  • Gastroschisis (a hole in the baby’s belly)
  • Congenital heart defects (CHD)
  • Atrioventricular septal defect (a heart defect)
  • Limb defects
  • Hypospadias (a penis birth defect)
  • Atrioventricular septal defect (holes in the baby’s heart)
  • Pulmonary valve atresia and stenosis (a heart defect)
  • Coarctation of the aorta (an aorta defect)

Now the question is, beyond the negligence discussed above, what commonly causes these defects?

Common Causes of Birth Defects

In addition to the types of negligence we listed above, these things can cause birth defects:

Medication Errors

This is a big one. Many medical malpractice lawsuits arise from prescription drugs. In fact, we’ll dedicate an entire section to that below. 

Industrial Chemicals

Still widely used today, like the chemicals in solvents, paint thinners, cleaning fluids – these chemicals can cause serious health problems if an unborn baby is exposed to them through the mother.

Botched C-Sections

Failure to perform a proper, timely C-section can result in serious problems for the child, including birth defects or injuries.

Failure to Monitor

Failing to properly monitor fetal health can increase the risk of birth defects.

Lead Exposure

Exposure to the lead – which is toxic – can have dire consequences, and cause serious birth defects in a baby.  

Other Toxins

Environmental toxins can also pose a significant risk, and potentially cause birth defects. Pesticides and certain metals for example, are other toxins that can cause severe harm to a baby.

Now, let’s talk about medications.

Some Medications Can Cause Birth Defects. Did Your Doctor Prescribe Any Of These To You?

Many common medications used during pregnancy come with scary potential side effects. In severe cases, they can even result in birth defects and injuries that warrant birth defect lawsuits. Let’s take a look:


Approximately 1 million women who suffer from morning sickness and nausea take Zofran – or its generic version. Unfortunately, many of these women are unaware of the risks associated with the medication. In fact, Zofran has been found to increase the risk of severe birth defects. Cardiac malfunction and congenital deformities have been linked to taking Zofran during pregnancy.


Topamax is often prescribed to patients suffering from epilepsy and migraine headaches. It’s also used to treat alcoholism, eating disorders, obesity, diabetes, and some psychiatric disorders. Unfortunately, it has also been associated with birth defects such as:

Opioid pain relievers, antidepressants, antibiotics, and even some acne medications have also been linked to birth defects. Your doctor should communicate the risks and/or benefits of each medication.

Baby with birth defect crying.

Topamax manufacturers have paid millions of dollars in fines for marketing their drug illegally, failing to properly warn doctors of the birth defects risk. In addition to this, they had to pay multiple millions of dollars when they lost multiple lawsuits back to back. After this, they settled with many others.

Women including Czimmer and Gurley took them to court, claiming their children were born with birth defects because of the drug, and won. Janssen Pharmaceuticals was ordered to pay Czimmer’s family over $4 million, and Brayden Gurley’s just under $11 million.


This is arguably one of the worst drugs for pregnant women. If a mother takes Accutane while pregnant, her baby has a 35% chance of being born with a serious birth defect. There are a wide range of defects caused by this drug, including:

  • Brain deformities
  • Heart defects
  • Face deformities

Now, most Accutane lawsuits involve bowel disorders like Crohn’s disease. But for a pregnant woman taking this drug, the primary concern is the child.

If you’re pregnant and your doctor prescribed this drug, or failed to take you off of it, that’s a very serious problem. This drug is so risky that doctors generally advise women to stop taking the drug at least 3 years before trying to have a baby.


Using NSAIDs like Ibuprofen during pregnancy can increase your risk of birth defects. Based on a number of studies, the FDA, and successful birth defect lawsuits, NSAIDs are higher risk painkillers to take during pregnancy. Here’s a few NSAIDs that can potentially cause birth defects:

  • Aleve
  • Excedrin
  • Motrin Diclofenac
  • Lodine
  • Meloxicam
  • Ibuprofen
  • Diclofenac
  • Indomethacin
  • Piroxicam

If you’re pregnant and your doctor prescribes NSAIDs or neglects to advise against them, it could lead to serious problems for your developing baby.

So that’s that. Now that we’ve covered the drugs, let’s talk about the cases.

When Should You File A Birth Defect Lawsuit?

If you think you have a case, schedule a consultation with your attorney as soon as possible. Because there’s a time limit, called the statute of limitations. In some states, you have as many as 3 years to file a lawsuit. And in many other states, you have only one.

If you live in one of those states, it’s especially important to act as soon as possible, because a single year isn’t a long time at all. It can take much longer to process something as devastating as a birth defect. But sadly, in those states processing longer than a year before taking legal action just isn’t an option. So if you think you have a case, the sooner the better.

Filing A Birth Defect Lawsuit

To file a malpractice lawsuit to pursue justice and compensation for your child’s birth defect, take the steps below. 

How To Sue For A Birth Defect

  1. Check the statute of limitations for your state to make sure you still have time.
  2. Find a competent, experienced birth injury attorney and get a free consultation.
  3. File an official complaint against the hospital.
  4. Gather your witnesses and experts to testify alongside your evidence with your lawyer’s help.
  5. Negotiate a fair settlement (again, your lawyer’s help is key), or seek compensation by going to trial.
  6. If you go to trial, use evidence, witnesses, and/or expert testimony to prove that the standard of care was below what a competent medical professional would have provided.

Let’s take a closer look at the evidence you’ll need. When filing a birth injury lawsuit, the more the merrier. More information and more evidence, to prove negligence.

Successful Birth Defect Claims Show:

  • Proof showing there was a doctor-patient relationship.
  • The standard of care that the medical professionals treating you should have followed.
  • Proof of a breach in the standard of care before, during or after birth.
  • Proof of harm to the baby and the damages you’re claiming.

Now, strong evidence is about as clutch as it gets in these cases, but you know what’s just as important? A strong attorney. Let’s discuss the specifics of what to look for, and how to identify a strong attorney.

Finding The Right Attorney For Your Birth Defect Case

You know how we said more evidence is necessary? That goes for experience too. When an attorney with the right skillset and strong experience handles your case, you have a much better chance at winning.

They’ll help you make sure you have all of the right evidence and witnesses. They’ll navigate you around litigation pitfalls less experienced lawyers may be unaware of, and make sure you’re well-informed and prepared. But what are the characteristics of a strong attorney? 

What To Look For In A Birth Injury Lawyer

A competent attorney is vital to your claim – here’s what to look for:

  • A great reputation. This is easy to find using sites like Google, Facebook, and Yelp. Professional associations are great too. Bad reviews are a red flag, good reviews are a green light.
  • The right specialization. Choose a practice that specializes in birth injury and birth defects; medical malpractice
  • Works on a contingency basis. Find an attorney who works on a contingency fee basis, so you don’t have to pay any fees until you win your case.
  • Strong negotiation & communication. Communication is key. Look for a lawyer who communicates with you well, keeps you informed throughout, and negotiates well.
  • Good experience. Make sure your attorney has plenty of experience handling birth injury lawsuits and helping clients win compensation.
  • A good staff. Choose a law firm with a strong support staff, ideally including nurses or physicians who understand birth defects, and can make your case rock-solid.

Here at Hampton & King, our birth injury lawyers have handled numerous medical malpractice cases and can help you get the justice you deserve.

We understand the emotional toll birth issues can have on you and your family. Knowing that your child’s injury is due to negligence is a tough pill to swallow; even more so when it’s an injury that’s preventable. You don’t have to go through this alone.

With Hampton & King by your side, maneuvering a birth defect lawsuit will become easier. Let us help you. Contact us today to schedule a free consultation. Let’s begin this journey to justice together.