What Should I Do If I Suspect My Baby Was Injured During Childbirth?

Something feels off. Your baby’s arm hasn’t moved the same way since delivery. Or you’re watching other babies at the pediatrician’s office reaching milestones yours hasn’t. Or you keep replaying the last few hours of labor – the rush of people into the room, the monitor that kept alarming, the explanation that didn’t quite make sense – and you can’t stop asking yourself whether something went wrong. That feeling, sitting in the space between what happened and what you can prove, is one of the hardest places a parent can be.

You deserve a straight answer. Here it is: some birth injuries are caused by medical negligence, and Virginia law gives families the right to pursue accountability. But Virginia also has a specific legal program – one that most parents have never heard of – that applies to the most severe neurological birth injuries and changes the legal path in ways that matter enormously. Understanding that program, and whether it applies to your situation, is the first thing any family in Virginia needs to know.

This post explains what birth injury claims in Virginia actually look like – the warning signs, the legal framework, the deadlines, and what to do right now.

First: Understanding the Difference Between a Birth Defect and a Birth Injury

A birth defect develops during pregnancy. It’s typically genetic or environmental in origin – conditions like spina bifida, cleft palate, or chromosomal differences. Birth defects are generally not caused by anything that happened during labor or delivery, and they don’t create a medical malpractice claim.

A birth injury is different. It occurs during labor, delivery, or the immediate newborn period – as a result of something that happened in the birthing process. Cerebral palsy is caused by oxygen deprivation. Erb’s palsy from excessive pulling force during delivery. Skull fractures from improper forceps use. Hypoxic-ischemic encephalopathy, known as HIE. These are injuries, not developmental conditions, and they raise a distinct legal question: did the medical team fail to meet the standard of care that a competent provider should have met in those circumstances? That question – not simply whether harm occurred – is what drives a medical malpractice claim.

Warning Signs That a Birth Injury May Have Occurred

Some signs appear during or immediately after delivery. An emergency C-section following a period when fetal distress signals were not addressed. A prolonged labor where intervention was delayed. A baby who needed resuscitation at birth. Low Apgar scores at 5 minutes. Admission to the NICU without a clear explanation given to you. Jaundice severe enough to require treatment beyond normal newborn monitoring. Unusual marks, swelling, or asymmetry on the baby’s head or shoulders consistent with forceps or vacuum extraction.

Other signs emerge in the weeks and months after birth. One arm that hangs limply or doesn’t move the way the other one does – this is often the first visible sign of Erb’s palsy or a brachial plexus injury, and it’s usually noticeable within days of delivery. Abnormal muscle tone, either stiffness or unusual floppiness. Seizures in the newborn period. Difficulty feeding. Asymmetrical facial movement. Eyes that don’t track normally. Delayed motor milestones – not holding the head up on schedule, not sitting, not reaching. Cerebral palsy in particular is typically not formally diagnosed until 12 to 18 months of age, and sometimes later.

Noticing these signs doesn’t mean a birth injury definitely happened. It doesn’t mean someone was definitely negligent. What it means is that the situation warrants a professional evaluation – both medical and legal. Those two processes can happen at the same time, and neither one has to wait for the other to be complete.

Virginia’s Birth Injury Legal Landscape – What Makes It Different From Other States

Virginia created a no-fault compensation program specifically for the most severe birth-related neurological injuries. It’s called the Virginia Birth-Related Neurological Injury Compensation Act – the VBNICA, codified at Va. Code § 38.2-5000 et seq. – and it’s administered by the Virginia Workers’ Compensation Commission. The program covers brain and spinal cord injuries caused by oxygen deprivation or mechanical injury during labor and delivery that leave the infant permanently and substantially impaired. If the delivering physician and the delivering hospital both participate in the VBNICA program, and the baby’s injury meets that definition, the program provides lifetime medically necessary care coverage on a no-fault basis. No one has to prove negligence.

But there’s a trade-off that families need to understand before they do anything. If the VBNICA applies to your case, it’s the exclusive remedy. Participating providers are immune from malpractice lawsuits for qualifying injuries. That means no jury verdict. No recovery for pain and suffering, emotional distress, or the full damages a court might award. The program covers what it covers – medically necessary care – and nothing more. Families who don’t know the program exists sometimes pursue a malpractice lawsuit against a participating provider and discover that the immunity applies. Others accept program benefits without fully understanding they’ve waived their right to sue.

Most birth injuries don’t fall within the VBNICA’s scope. Erb’s palsy caused by physical force, brachial plexus injuries, fractures, medication errors, and infections are not qualifying neurological injuries under the Act. For those injuries – and for any injury at a provider who doesn’t participate in the program – the standard medical malpractice framework applies. You can sue. You must prove negligence. And the statute of limitations governs the timeline.

The intersection of the VBNICA and the malpractice system creates an election-of-remedies problem that families cannot navigate alone. Filing in the wrong forum, or pursuing the wrong path, can foreclose the right one entirely. An attorney who knows Virginia’s birth injury system must evaluate which path applies before any filing or claim is made – before anything is signed, submitted, or settled.

The Virginia Statute of Limitations for Birth Injury Claims

Virginia’s general medical malpractice statute of limitations is 2 years from the date of the injury (Va. Code § 8.01-243). In a standard adult malpractice case, that deadline runs strictly. But birth injury cases involving children have a meaningful exception: for a child under the age of 8 at the time of the injury, Virginia extends the filing deadline to the child’s 10th birthday. A baby injured at birth has until that birthday to file a malpractice lawsuit – nearly a decade.

The VBNICA has its own deadline: claims must be filed before the child’s 10th birthday as well. Missing that deadline forfeits the program benefits, regardless of the merits of the claim.

The extended deadline exists for a specific reason. Cerebral palsy and other neurological birth injuries often aren’t diagnosed until toddlerhood. Virginia’s legislature recognized that families can’t sue over a condition they don’t yet know exists. But “you have time” and “you should wait” are not the same thing. Medical records become harder to obtain. Nurses and physicians move on. Fetal monitoring strips and electronic records are subject to retention schedules. The strongest birth injury cases are built from investigations that start early – not ones that start at year nine.

What to Do Right Now

1.   Get a complete copy of your medical records from the delivery. Request the full hospital records – labor and delivery notes, fetal monitoring strips, nursing notes, NICU records if applicable, and the operative note if a C-section occurred. These records are the foundation of any birth injury investigation, and you’re entitled to them.
2.   Don’t discuss your suspicions with the hospital or the delivering provider. What you say to the hospital can be used to complicate your claim. You don’t need to be adversarial – simply request your records without explaining why. Your conversations with an attorney are protected by privilege; your conversations with hospital staff are not.
3.   Document what you’re observing in your baby. Keep a written log and dated, specific – of any developmental delays, physical asymmetries, seizure activity, or other symptoms. Short videos on your phone can capture movement differences that are difficult to describe in words. This record is evidence that’s hard to reconstruct later.
4.   Get a second medical opinion on your baby’s diagnosis and prognosis. If your child has been diagnosed with cerebral palsy, Erb’s palsy, HIE, or another neurological condition, a second opinion from a pediatric specialist at an academic medical center can clarify both the diagnosis and whether the clinical picture is consistent with a birth injury. VCU Health/MCV in Richmond and Children’s Hospital of The King’s Daughters in Norfolk are two credible regional options for families in Virginia.
5.   Contact a Virginia birth injury attorney as early as possible. The VBNICA election-of-remedies question, the evidence preservation window, and the specific standard-of-care analysis in birth injury cases all require specialized legal review that begins with the delivery records. Geoff McDonald & Associates offers free consultations with no obligation – it’s the step that tells you whether you have a claim and which legal framework governs it.

Frequently Asked Questions

How do I know if my baby’s condition was caused by something that went wrong during delivery?

You won’t know for certain without a medical and legal evaluation. A birth injury attorney works with medical experts – typically obstetricians, neonatologists, and pediatric neurologists – who review the delivery records and compare the care provided against the standard a competent provider should have met. If the records show fetal distress that wasn’t acted on, a delayed C-section, or improper use of delivery instruments, those are the starting points for a malpractice analysis.

Does Virginia’s birth injury program (VBNICA) mean I can’t sue the doctor who delivered my baby?

It depends on two things: whether the delivering physician and hospital participate in the VBNICA program and whether your baby’s injury meets the program’s specific definition of a qualifying neurological injury. If both are true, participating providers are immune from malpractice lawsuits, and your remedy is through the program. If the provider doesn’t participate, or if the injury doesn’t qualify under the Act’s narrow definition, standard malpractice law applies and you can sue. An attorney must evaluate these facts before any claim is filed.

My baby was diagnosed with cerebral palsy at 18 months – is it too late to consult an attorney?

No. Virginia’s statute of limitations for minors extends the deadline to the child’s 10th birthday for injuries occurring before age 8, so an 18-month diagnosis doesn’t mean you’ve missed your window. But earlier is always better: records are easier to obtain, witnesses have clearer memories, and fetal monitoring strips are more readily available. An attorney can begin investigating right after diagnosis.

What compensation is available in a Virginia birth injury case?

In a medical malpractice lawsuit outside the VBNICA, Virginia allows economic damages – lifetime medical costs, rehabilitation, special education, assistive devices, and lost earning capacity – as well as non-economic damages for pain and suffering. Virginia doesn’t cap compensatory damages in medical malpractice cases, which matters enormously given the lifetime care costs of severe neurological injuries. Under the VBNICA program, families receive coverage for medically necessary care but can’t recover pain and suffering or other non-economic damages.

 

Suspecting that something went wrong during your child’s birth is one of the most isolating feelings a parent can face. It sits at the intersection of love, fear, and the slow realization that the people you trusted may have failed you. Virginia law provides a path to answers and to accountability. The first step is just asking the question.

Caring for a child with a serious diagnosis while also carrying the question of whether it could have been prevented is an enormous weight to hold. Geoff McDonald & Associates handles birth injury cases specifically – familiar with the VBNICA, experienced with the standard-of-care questions, and focused on reviewing the delivery records to give you an honest picture of your options. Reach out for a free consultation when you’re ready.

Call Geoff McDonald & Associates at 804-888-8888 – we’re available 24/7.