Recovering for a Birth Injury in Ohio: Compensation can provide for extensive care needs

Elk & Elk Partner Marilena DiSilvio recently shared her extensive experience in the area of birth injuries in an interview with Super Lawyers. This article originally appeared on  

By Judy Malmon

babyAwaiting the birth of a baby is an exciting time that brings with it countless things to think about, including planning for labor and delivery. In an ideal world, the worst thing that happens at your baby’s birth is that your carefully organized playlist doesn’t make it to the delivery room. In some cases, however, much more serious problems occur.

Marilena DiSilvio represents families who have suffered an injury during birth due to medical malpractice. She draws on her background as a neonatal intensive care unit nurse to understand and explain to clients and juries the medical complexities of these cases. Continue reading “Recovering for a Birth Injury in Ohio: Compensation can provide for extensive care needs”

The Rise In Infant Mortality Rate In Ohio

A new report by the Ohio Health Department reveals that the infant mortality rate rose slightly in 2016 when compared to the previous year.  In 2016, 1,024 babies died within their first year of life: That’s 19 more than in 2015.  Continue reading “The Rise In Infant Mortality Rate In Ohio”

Do you know the warning signs of post-birth complications?

post-birth complicationsThe United States lags behind the world in mother and child safety during delivery. Despite steep declines in the global rate of maternal mortality, it is one of the few countries reporting increases in pregnancy-related deaths, making it an outlier among developed nations. Continue reading “Do you know the warning signs of post-birth complications?”

5 Birth Injuries for Which You May be Entitled to Legal Compensation

Although some birth defects occur due chromosomal abnormalities or genetics, others can birth injuries, which are the result of poor prenatal care or medical malpractice. Your baby may suffer from lifelong physical, emotional and mental issues as a result of the negligence of a healthcare provider that you trusted. In such a case, working with a medical malpractice attorney may help you get compensation under the law for your baby’s injuries.

Here are five common birth injuries for which you may be entitled to compensation:

Hypoxic-Ischemic Encephalopathy

Hypoxic-Ischemic Encephalopathy is caused by a lack of oxygen to the baby’s brain during delivery, and it can lead to life-long mental retardation or even cerebral palsy. As many as 9,000 newborns suffer from this condition each year.

Brachial Plexus Injuries

The brachial plexus is a bundle of nerves around the shoulder. A brachial plexus injury occurs when the nerves are damaged during delivery. Sometimes this occurs when the baby becomes stuck in the birth canal, usually the shoulder getting stuck on the pelvic bone. When the baby is pulled out with a vacuum or forceps, or is pushed out by the mother, it can stretch or tear brachial plexus. Since  these nerves control movement and feeling in the arm, damage to the nerves can result in long-term paralysis.

Cerebral Palsy

Cerebral palsy involves a variety of neurological disorders that permanently impair movement or muscle function. Lack of oxygen to the brain due to improper monitoring of the fetal heart rate and other poor choices made by healthcare providers during labor and delivery can lead to one of the neurological disorders that is behind cerebral palsy.

Erb’s Palsy

Also known as Erb-Duchenne Palsy, Erb’s palsy is also caused by damage to the brachial plexus nerves and can lead to long-term paralysis. The condition can also be caused by shoulder injuries during childbirth.

Broken Bones

A difficult birth can also lead to broken bones in a newborn. Improper management of labor and delivery can cause the baby to be stuck in a bad position or to be handled too roughly, leading to the injuries.

If your baby has suffered one of these injuries and you believe it to be the result of negligent care, call an experienced malpractice attorney to discuss your case. Children with birth injuries frequently require a lifetime of special care.

Brain Damaged Baby Result of Poor Staff Decisions

Ohio medical malpractice lawyer Jay Kelley recalls the tragedy of one family whose infant suffered brain damage due to a birth injury.

The birth of a child should be one of the most exciting and happy times in a family’s life. Unfortunately, sometimes happiness turns to tragedy when a baby is harmed in the birthing process.

Such is the case for one of our clients, their precious baby suffered severe brain damage during delivery. It was expected to be a routine Caesarean Section delivery, but the process took much longer than normal.

Typically, doctors complete this type of delivery in 20 minutes, but our client’s delivery took nearly an hour. Compounding this issue was a change of personnel during the delivery process—the hospital staff in the room left, and new personnel were brought in. It is typically protocol to keep the same staff on a case during delivery especially during such a surgical procedure.

When the staff that started the delivery was placed in other areas of the hospital, our client’s delivery became less of a priority. In the room now was an employee who had not performed certain procedures in nearly two decades. Due to a lack of training, the child was not getting enough oxygen and began to turn blue. The baby developed profound respiratory problems, had to be resuscitated and put in an incubator.

Of course, no delivery is without risks and it’s not uncommon for a baby to need to be placed in an incubator. In fact, when reading the medical records and charts of our client, they seemed to state everything went well. However, it was only during the discovery phase of the litigation process in which the lack of qualified staff in the room and how the child’s injury actually occurred was finally revealed. Had a claim never been filed, they family never would have known their child’s suffering and future health problems were the result of negligence. It takes an experienced attorney to uncover the truth and help families receive compensation for the pain and suffering caused by this lack of medical care.

To learn more about personal injury law, I encourage you to watch the video above and to explore our educational website at If you have legal questions, please call us at 1-800-ELK-OHIO. I welcome your call.

Jay Kelley


Mismanagement of Birth Leads to Cerebral Palsy

Attorney Jay Kelley recalls one traumatic case in which twins were born to thrilled parents. One infant was born healthy, but the other suffers from a lifelong medical condition due to the negligence of hospital staff.


For many, one of the happiest times in our adult lives is the day our child is born. Bringing a new life into the world should be a joyous and miraculous occasion. Unfortunately, that is not always the case.

While there have been many medical advances to protect both mother and child, each birth presents its own unique challenges that require competent care.

For example, medical professionals frequently use monitoring equipment during the delivery. Fetal monitoring strips show the fetal heart rate and the mother’s contractions. Prompt action in the event of fetal distress can reduce the risk of serious medical conditions and infant deaths; but what happens when the equipment used to help save babies’ lives is not monitored properly?

The results of a mismanaged birth can be devastating. Babies who are not tragically lost at birth are often born with debilitating conditions such as cerebral palsy and brachial plexus injuries. In some instances, these types of serious medical injuries may indicate negligence by your doctor or nursing staff during delivery.

Early signs of cerebral palsy and Erb’s palsy (another birth injury) are seizures, spastic or tight muscles, limp arms, difficulty controlling the head and the inability for the baby to sit up, crawl and walk at the correct milestone time of their infancy. Children who suffer these injuries can incur a lifetime of medical costs including doctor visits, hospital stays, and other medical treatments. Your family should not be forced to handle the burden of these injuries due to the negligence of others. In cases of malpractice, you deserve to be fully compensated for not only the injury during birth, but also the future costs of the harm done to your child.

To learn more about birth injury law, I encourage you to watch the video above and to explore our educational website at If you have legal questions, please call us at 1-800-ELK-OHIO. I welcome your call.

Jay Kelley

Lack of Oxygen at Birth Caused by Human Error

baby and dadA 15-year Norwegian study published in a journal of the Nordic Federation of Societies of Obstetrics and Gynecology indicates that human error is the most common cause of infant asphyxiation at birth.

Birth asphyxia occurs when a baby doesn’t receive enough oxygen before, during or immediately after birth. Without oxygen, cells cannot work properly. Waste builds up in the cells and cause temporary or permanent damage. Birth asphyxia can lead to brain damage and death.

Estimates have put lifelong compensation for injury caused by birth asphyxia averages about €430,000 ($574,000) in Norway, with costs exceeding $5 million in the United States.

While fetal brain injury or death is uncommon during childbirth, when it occurs the effects are devastating,” explains Dr. Stine Andreasen with the Department of Obstetrics and Gynecology at Nordland Hospital in Bodø, Norway. The study investigated claims made for neurological injury or death following birth asphyxia.

Researchers analyzed 161 cases associated with birth asphyxia in which compensation had been awarded. In those cases, 107 infants survived, with 96 having neurological injury, and 54 children who died.

Study Results: Human error was the most common cause of birth asphyxia

  • 50% attributed to inadequate fetal monitoring
  • 14% lack of clinical knowledge
  • 11% non-compliance to clinical guidelines
  • 10% failure to ask for senior medical assistance
  • 4% errors in drug administration

“In most compensated cases, poor fetal monitoring led to an inadequate supply of oxygen to the infant,” said Dr. Andreasen. “Training for midwives and obstetricians, along with high-quality audits, could help to reduce claims for compensation after birth asphyxia.”

Birth asphyxia may lead to cerebral palsy, Hypoxic-Ischemic Encephalopathy, developmental disabilities, Attention Deficit Hyperactivity Disorder (ADHD) or impaired sight. In the most severe cases, asphyxia can lead to organ failure and death.



Human Error Most Common Cause of Birth Asphyxia” by Stine Andreasen, Bjørn Backe, and Pål Øian, Acta Obstetricia et Gynecologica Scandinavica, November 17, 2013, DOI: 10.1111/aogs.12276

Medical Mistake Leads to Infant Death



The birth of a baby should be a joyous occasion. However, sometimes things do not go as planned.

Each pregnancy has its own challenges, such as health risks and the possibility of complications. Ideally, doctors and nurses should provide competent care, addressing issues as they arise and bringing the baby safely into the world. Unfortunately, health care professionals can make mistakes, placing mothers and their vulnerable infants at risk.

Such was the case for one of our clients. In her ninth month, she was brought to the hospital after going into labor but was told by her doctor that she wasn’t ready yet. He assured her everything would be okay and sent her home with a fetal monitor in place. Yet, when the doctor went home, he inexplicably ordered the fetal monitor to be turned off and the baby died that very night. Had the fetal monitor been turned on, it would have alerted medical staff to the situation.

Birth injury cases

Through the use of expert testimony and diligent preparation, we were able to prove that the doctor failed to provide an acceptable standard of care, not only for the baby, but also for the mother. He put them both at risk and in the end, this family lost their child due to the doctor’s negligence and carelessness. While no amount of money can fully compensate a family for the loss of their child, we were able to help this young couple achieve financial security so they can focus on recovering. Aside from restitution, jury awards and settlements serve another purpose: they put doctors and hospitals on notice, allowing them to learn from their mistakes in order to spare other families the same heartache.

In addition to inadequate fetal monitoring, causes of birth injuries may also include inadequate prenatal or postnatal care, mistakes made during birth, or reactions to drugs taken during pregnancy. Injuries to the mother or baby may be caused by the medical mistakes of physicians, nurses, health care facilities, or other medical care service providers.

To learn more about personal injury law, I encourage you to watch the video above, read our blog, or explore our educational website at If you have legal questions, please call us at 1-800-ELK-OHIO. I welcome your call.

David J. Elk

Ohio birth injury lawyers explain most serious types of injuries

Pregnancy and the birth of a child should be one of the happiest times in a parent’s life. But sometimes complications occur during birth and children are left with birth injuries such as cerebral palsy, bell palsy, brachial plexus injury or hypoxic-ischemic encephalopathy.

While not all birth injuries are preventable, actions by the medical staff may have been negligent. Negligence could be a misdiagnosis or failure to follow proper medical procedures designed to minimize the risks involved in a diagnosed condition.

Three of the most serious types of birth injuries are cerebral palsy, brachial plexus injury and hypoxic ischemic encephalopathy. Here is some information about each type of injury and what causes them.

Cerebral palsy

Cerebral palsy is one of the most serious health problems caused by birth injuries. An estimated 800,000 individuals in the U.S. have been diagnosed with cerebral palsy and worldwide there are an estimated 17 million cases.

The term cerebral palsy refers to any one of a number of neurological disorders appearing in infancy or early childhood that permanently affect a person’s movement and muscle coordination. Cerebral palsy does not worsen over time and, although it may affect muscle movements, it isn’t a problem of the muscles or nerves. Most children who have cerebral palsy have had it since birth, often due to a lack of oxygen to the brain (called hypoxia) or to the body (asphyxia), premature delivery, or birth trauma – sometimes because of medical malpractice and delivery mistakes during labor or child birth.

There are four different types of cerebral palsy:

  • Spastic cerebral palsy: Some muscles are tight, stiff and weak, making control of movement difficult.
  • Athetoid cerebral palsy: Control of muscles is disrupted by spontaneous and unwanted movements. Control of posture is also disrupted.
  • Ataxic cerebral palsy: Problems include difficulty with balance and speech and shaky movements of hands or feet.
  • Mixed cerebral palsy: a combination of all three.

Hypoxic-ischemic encephalopathy

Hypoxic-ischemic encephalopathy is caused by a lack of oxygen to the brain during birth. While this type of injury is rare, the consequences are serious, causing life-threatening and sometimes permanent brain damage.

Lack of oxygen frequently damages not only the brain, but other organs as well. Often these include heart damage with abnormal blood pressures or heart rhythms, liver damage with elevated liver enzymes, kidney damage with low urine output and abnormal kidney function, gastrointestinal problems with abnormal feeding, low or high tone with floppy or stiff muscles and/or impaired control of breathing often requiring ventilation.

In the United States, as many as 9,000 newborns are affected by HIE each year, according to the U.S. Food and Drug Administration. The mortality rate is 25 to 50 percent, and most deaths occur in the first week of life due to multiple organ failure or redirection of care (moving to a new unit or hospital). The condition is also a frequent cause of mental retardation, epilepsy, learning disabilities and cerebral palsy.


Brachial plexus injury

Brachial plexus injury is caused by birth trauma, usually the child’s shoulder becoming stuck on the mother’s pelvis. The resultant stretch from the forces of labor, operative delivery (vacuum or forceps) and obstetrical traction can lead to a stretch or tearing of a group of primary nerves, called the brachial plexus, which supply movement and feeling to the arm. Paralysis can be partial or complete and the damage to each nerve can range from bruising to tearing.

Some babies recover on their own; others may require specialist intervention. Pediatric neurosurgery or nerve grafting is often required for a tear. Lesions may heal over time and function may return in total or partially. Although many children less than 1 year old recover range of motion, individuals who have not yet healed after this point rarely gain full function in their arm. Early intervention with neurology, neurosurgery and orthopedics can maximize recovery through therapies, nerve grafting and tendon transfers.

If your child has suffered a birth injury, contact us today and see how we can help. The birth injury lawyers of Elk & Elk have the experience you need to get the results you deserve. Our dedicated attorneys and qualified medical professionals will help you determine the best course of action for your needs. You can either fill out the online consultation form or call us at 1-800-ELK-OHIO today and get the process started.