When a preventable mistake during labor or delivery leads to a child’s injury, it may constitute medical malpractice. In West Virginia and Virginia, families have the right to seek compensation for the lifelong impact of these injuries—but strict procedures, expert certification requirements, and filing deadlines make these cases highly complex.
Understanding the legal framework is the first step toward protecting your rights and your child’s future.
Understanding Birth Injuries
Birth injuries refer to physical harm suffered by a baby—or sometimes the mother—during pregnancy, labor, or immediately after delivery. Not every injury is caused by negligence, but when a medical provider’s care falls below accepted standards and causes harm, that’s medical malpractice.
Common types of preventable birth injuries include:
- Cerebral Palsy – Often linked to oxygen deprivation during labor or delivery.
- Brachial Plexus Injury (Erb’s Palsy) – Caused by excessive pulling on a baby’s shoulders during birth.
- Hypoxic-Ischemic Encephalopathy (HIE) – Brain damage from inadequate oxygen or blood flow.
- Fractures or Nerve Injuries – Occurring when improper tools or excessive force are used.
- Delayed C-Sections – Leading to distress or trauma when the baby isn’t delivered promptly.
Each of these conditions may require extensive medical care, therapy, or lifelong support—making accountability and compensation crucial for affected families.
When a Birth Injury Becomes Medical Malpractice
Doctors, nurses, and hospitals are legally bound to meet a standard of care—the level of skill and diligence that a reasonably competent professional would exercise under similar circumstances.
A birth injury becomes malpractice when:
- A provider fails to meet that standard (for example, by ignoring signs of fetal distress), and
- That failure directly causes harm to the baby or mother.
Examples of negligent conduct might include:
- Failing to monitor fetal heart rate properly.
- Ignoring signs of preeclampsia or infection.
- Delaying emergency cesarean delivery.
- Using excessive force during delivery.
- Administering the wrong medication or dosage.
Proving these cases often requires detailed medical analysis and testimony from independent experts familiar with obstetric standards.
Proving Medical Malpractice in WV and VA
To build a strong case, your legal team must establish four elements:
- Duty of Care – The provider owed a legal duty to the patient.
- Breach of Duty – The provider’s actions fell below accepted medical standards.
- Causation – The breach directly caused the injury.
- Damages – The injury resulted in measurable harm (medical bills, therapy costs, pain and suffering, etc.).
Both West Virginia and Virginia require expert certification to confirm that malpractice likely occurred before or shortly after filing a lawsuit. This step ensures that only medically supported claims proceed to court.
Legal Process in West Virginia
Pre-Suit Requirements
Under West Virginia’s Medical Professional Liability Act (MPLA), plaintiffs must serve:
- A Notice of Claim to each healthcare provider at least 30 days before filing suit, and
- A Certificate of Merit from a qualified medical expert stating the standard of care, how it was breached, and how that breach caused harm.
These requirements are designed to filter out unsupported claims while preserving legitimate ones.
Filing Deadlines
- General Rule: A claim must be filed within two years of the injury or its discovery.
- For Minors: If the child was under 10 years old at the time of injury, parents generally have until the child’s 12th birthday to file, whichever is later.
- Statute of Repose: No medical malpractice claim can be filed more than 10 years after the act of negligence, regardless of discovery.
Missing these deadlines can bar your claim entirely, making early consultation with counsel essential.
Damage Caps in West Virginia
West Virginia limits non-economic damages (like pain, suffering, and emotional distress):
- $250,000 per occurrence for most cases.
- $500,000 for catastrophic injuries or wrongful death (such as permanent disability or loss of limb).
These caps adjust periodically for inflation. As of 2025, the low cap for non-economic damages is $375,000 and the high cap on non-economic damages is currently $750,000. However, economic damages—medical bills, therapy costs, and lost wages—are not capped. Oftentimes, in birth injury cases the child requires lifetime medical care. In such cases, the attorneys at Katz, Kantor, Stonestreet & Buckner will retain the services of a certified life care planner to determine the total future medical cost the child will need for his/her life expectancy. Since economic damages are not capped in West Virginia, you may be able to recover the future care costs that often exceed several million dollars.
Legal Process in Virginia
Virginia follows similar but distinct rules under the Virginia Medical Malpractice Act.
Expert Certification
At the time a plaintiff requests service of process, they must have obtained a written expert opinion from a qualified professional confirming that the provider deviated from the standard of care and caused the injury. This certification helps establish credibility at the outset of litigation.
Medical Review Panels
Either party may request a Medical Malpractice Review Panel within 30 days after the defendant files their response. The panel—composed of doctors and legal professionals—reviews the evidence and issues a non-binding opinion, which can influence settlement negotiations or trial outcomes.
Filing Deadlines
Virginia law also enforces strict time limits:
- General Rule: Two years from the date of the alleged malpractice.
- For Minors: If the child was under eight years old when the malpractice occurred, the claim can be filed up to the child’s tenth birthday.
Damage Caps in Virginia
Virginia imposes a single cap covering both economic and non-economic damages combined. The cap increases annually by $50,000:
- For cases tried between July 1, 2025, and June 30, 2026, the total limit is $2.70 million.
No matter how many defendants are involved, this cap applies per patient, per claim.
Differences Between West Virginia and Virginia Birth Injury Laws
While both states aim to balance patient protection with medical accountability, there are key distinctions:
| Legal Feature | West Virginia | Virginia |
| Expert Certification | Pre-suit certificate of merit required before filing. | Written expert opinion required at time of service of process. |
| Medical Review Panel | Not available. | Optional upon request of either party. |
| Damage Caps | Non-economic only; $350k–$750k. | Combined total cap; increases annually ($2.70M in 2025–26). |
| Statute of Limitations (Minors) | File by age 12 if under 10. | File by age 10 if under 8. |
| Statute of Repose | 10 years. | None specifically for malpractice, but 2-year base rule applies. |
Common Types of Malpractice Leading to Birth Injuries
Medical negligence during childbirth can take many forms. The most frequently litigated include:
1. Failure to Monitor Fetal Distress
Hospitals must continuously monitor fetal heart rate. Ignoring warning signs—such as oxygen deprivation or irregular heart rhythms—can result in irreversible brain injury.
2. Delayed or Improper C-Section
Delays in performing an emergency cesarean can deprive the baby of oxygen and cause HIE or cerebral palsy.
3. Improper Use of Delivery Tools
Incorrect application of forceps or vacuum extractors may fracture the baby’s skull or damage nerves.
4. Medication and Anesthesia Errors
Wrong dosages or timing of medications, such as Pitocin or anesthesia, can create dangerous complications for both mother and child.
5. Negligent Post-Delivery Care
Failure to diagnose or treat newborn jaundice, infections, or respiratory issues may cause long-term damage.
Evidence That Strengthens a Birth Injury Case
Building a strong malpractice claim requires meticulous documentation. Families often collect:
- Medical Records: Prenatal charts, labor and delivery notes, NICU records, and hospital discharge summaries.
- Diagnostic Tests: MRIs, CT scans, and EEG results showing brain or nerve damage.
- Witness Accounts: Notes from nurses or family members who observed the labor and delivery.
- Expert Evaluations: Pediatric neurologist or rehabilitation specialist opinions.
- Financial Documentation: Bills for current and projected care, therapy, and specialized equipment.
Your attorney can help secure certified copies and ensure all records meet evidentiary standards.
Compensation in Birth Injury Claims
Compensation in a successful birth injury claim generally covers both economic and non-economic losses.
Economic Damages
These include quantifiable costs such as:
- Medical and hospital bills
- Physical and occupational therapy
- Long-term care and home modifications
- Assistive devices
- Lost earning capacity (for parents or future loss for the child)
Non-Economic Damages
These address emotional and psychological harm, including:
- Pain and suffering
- Emotional distress
- Loss of companionship or quality of life
While Virginia has a hard cap on both non-economic and economic damages, in West Virginia there is no cap on economic damages and the total financial impact of birth injuries often reaches millions of dollars due to lifelong care needs.
Why Legal Representation Matters
Birth injury cases are among the most complex types of medical malpractice litigation. They demand not only legal skill but also deep medical understanding and access to credible experts.
A skilled attorney can:
- Analyze medical charts and hospital procedures.
- Work with obstetric and neonatal experts.
- Identify causation and damages accurately.
- Handle negotiations with hospitals and insurers.
- Represent your family in court if settlement fails.
At Katz Kantor Stonestreet & Buckner, PLLC, our team has decades of experience in personal injury and medical malpractice cases throughout West Virginia and Virginia.. We understand how to build evidence-backed cases that give families a fighting chance for justice.
What Families Should Do If They Suspect Malpractice
If you believe your child’s injury could have been prevented:
- Request All Medical Records – Get copies from every healthcare provider involved.
- Write Down Everything You Remember – Times, staff names, statements, or unusual delays can be critical.
- Track Your Child’s Progress – Document ongoing medical appointments, therapies, and diagnoses.
- Consult an Experienced Attorney Early – Legal deadlines start running immediately after the injury or discovery.
Frequently Asked Questions
Is every difficult birth considered malpractice? No. Some complications occur naturally even with excellent medical care. A case becomes malpractice when the provider’s negligence causes harm that could have been prevented.
Can parents file a claim on behalf of their child? Yes. Parents or legal guardians can pursue a malpractice claim to recover damages on the child’s behalf.
What if my baby’s injury wasn’t immediately apparent? Some conditions, such as mild brain injury or developmental delay, appear months later. West Virginia and Virginia allow limited exceptions when the injury’s cause wasn’t immediately discoverable—but prompt legal consultation is still critical.
Are there limits to how much we can recover? Yes. West Virginia caps non-economic damages at $350,000 ($750,000 for catastrophic cases), and Virginia imposes a total cap that increases annually.
The Emotional and Financial Toll of Birth Injuries
Beyond medical costs, these cases carry immense emotional burdens. Families often face:
- Unexpected long-term care responsibilities.
- Financial strain from lost wages and medical bills.
- Mental health challenges related to trauma or guilt.
Recognizing this hardship, West Virginia and Virginia courts allow compensation not only for financial losses but also for emotional suffering caused by medical negligence.
Seek Help from a Compassionate Legal Team
When a preventable medical mistake changes your child’s life, you deserve answers and accountability.
At Katz Kantor Stonestreet & Buckner, PLLC, we combine legal expertise with compassion for families enduring unimaginable challenges. Our attorneys handle each case with confidentiality and care—focusing on securing the resources your child needs for a better future.
If you suspect medical malpractice caused your child’s birth injury, contact us today through our contact page or call (304) 898-8499 for a free consultation.
We proudly serve clients across West Virginia and Virginia, helping families understand their rights, navigate complex laws, and pursue justice.
Disclaimer: This article is for informational purposes only and does not constitute legal advice. For legal guidance tailored to your specific situation, consult a licensed attorney.