When a baby is hurt during pregnancy, labor, or delivery, two questions consume the family: was this preventable, and is it too late to do anything about it. A birth injury claim in Florida exists when a doctor, nurse, or hospital failed to meet the accepted standard of medical care and that failure caused the harm. I am Prosper Shaked, the attorney behind Prosper Injury Attorneys. My office is in North Miami Beach, and I represent families in birth injury cases throughout Florida. This page explains how those two questions get answered, what Florida law does and does not allow, and how long you have to act.
The honest answer to both questions starts in the same place, and it is worth saying plainly. A serious diagnosis is not proof that anyone was negligent, and a deadline you assume has passed may not be gone. Which of those is true in your case is a question of fact and law that gets answered by obtaining the medical records and reading them closely, not by the diagnosis and not by the calendar.
When you call my office at (305) 694-2676, you talk to an attorney, not a screener, and most of the time that attorney is me, the person who will read your child’s records personally. If your child’s injury involves lifelong care, calling sooner matters more than it should have to, because records can be lost or become harder to obtain, monitoring data can be overwritten, and memories fade while you are still in the hardest part.
Birth Injuries at a Glance in Florida
| Question | The short answer |
|---|---|
| What kind of claim is it? | A birth injury claim against a provider is a form of medical malpractice, so Florida’s medical-negligence rules apply, including the presuit notice, the 90-day presuit screening period, and a medical expert’s corroborating opinion before a lawsuit can be filed (Fla. Stat. § 766.106) |
| What has to be proven? | That a provider departed from the accepted standard of care, that the departure caused or worsened the injury, and the resulting damages |
| How long do I have? | It depends on several rules that interact; a child’s claim is generally protected up to the child’s eighth birthday as an exception to Florida’s four-year outer limit, while a parent’s own claim generally runs two years (Fla. Stat. § 95.11(5)(c)), so the deadline has to be calculated on your facts |
| What records matter most? | The full labor-and-delivery chart, the fetal monitoring strips, cord blood gas results, nursing notes, medication records, and the newborn and NICU records |
| What does it cost to ask? | Nothing. The consultation is free and the fee is contingent, so there is no fee unless we recover for you |
How Do I Know if My Baby’s Injury Was Caused by Medical Malpractice?
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You usually cannot tell whether a birth injury was caused by medical malpractice from the diagnosis alone. A child can be diagnosed with cerebral palsy, a brain injury, or a nerve injury after a delivery that no one could have handled better, and a child can be seriously harmed by a mistake that looked minor at the time. Malpractice is a specific thing: a provider did something a reasonably careful provider would not have done, or failed to do something a reasonably careful provider would have done, and that choice caused the injury. Proving it means reconstructing the delivery and asking, at each step, what the medical team knew, what they should have done, and whether doing it would have changed the outcome.
That is why the records decide these cases and the label does not. Were there signs of fetal distress on the monitor, and how long did they go unaddressed. Was a cesarean delivery needed, and if so, how long did it take to happen. Was a medication like Pitocin used to drive contractions, and was the baby’s response watched carefully. Was the delivery managed with instruments, and were they used with the right judgment. Those answers live in the chart, and reading that chart against the standard of care is how a birth injury case is built.
What Are the Signs of a Birth Injury?
No sign by itself proves that an injury happened during delivery or that anyone was negligent. What the signs below do is give a parent a reason to have a child evaluated and, when the birth was difficult, a reason to have the delivery records reviewed. Many of these signs have causes that have nothing to do with the care a family received. Read them as questions worth asking, not answers.
Movement and Neurological Signs
Parents often notice that a newborn seems to favor one side of the body, keeps one arm limp or held against the body, or does not move a limb the way the other side moves. Persistent one-sided weakness can be associated with a nerve injury such as a brachial plexus injury, or with a brain injury such as cerebral palsy, and it is worth evaluating rather than waiting out. Later, some children show delayed or unusual motor development, difficulty coordinating the movements of speech (sometimes described as apraxia), abnormal stiffness or floppiness, or seizures. These are reasons to have a pediatric specialist look, and if the delivery was difficult, to have the records looked at too.
Feeding and Digestive Signs
Feeding and digestion can also be where something first shows. Parents ask about foul-smelling or greasy stools, an infant who cannot pass stool normally or shows signs of an intestinal blockage, and persistent trouble with feeding or swallowing. Some of these point to conditions unrelated to the delivery, and some can be connected to a difficult birth or to a problem a provider should have caught and managed. A symptom you can describe to a doctor, and to a lawyer, is one that can be checked against the record.
Head and Skull Signs After Delivery
The birth process puts real force on a baby’s head, and most of the time the baby is fine. Sometimes there is swelling, bruising, or a collection of blood under the scalp (a cephalohematoma) after a delivery, particularly one assisted by forceps or a vacuum. Trauma to the skull or head during delivery, a baby who develops signs of fluid building up on the brain (hydrocephalus), or a delivery complicated because the baby was too large to pass safely through the birth canal (cephalopelvic disproportion) are situations where how the delivery was managed can matter. Where a treatable problem went unrecognized or a warning sign went unanswered, that is the kind of thing a records review is meant to surface.
Birth Emergency Signs
Some concerns come from the delivery itself. An umbilical cord wrapped around the baby’s neck, a newborn who is unconscious or unresponsive and needs prolonged resuscitation, or a baby who goes straight to the NICU can involve the baby’s oxygen supply, where timing and judgment matter a great deal. Many of these situations are handled correctly and the baby recovers. Some are not, and where a delay or a missed warning sign deprived the baby of oxygen, the consequences can be permanent. These are among the most important deliveries to have reviewed, because whether an emergency was unavoidable or preventable is often documented, minute by minute, in the fetal monitoring record and the rest of the chart.
These signs can have genetic, congenital, infectious, or entirely unavoidable causes, and their presence does not by itself mean a mistake was made. What they justify is asking the question. If your child is showing developmental concerns and you are trying to sort out whether they signal something bigger, we have written about how to tell when developmental delays signal a larger issue.
What Types of Birth Injury Cases Do We Handle?
We handle all types of birth injury cases, whether the injury is to the child, to the mother, or to both, and whether it happened before, during, or shortly after delivery. The conditions below are the ones families ask about most, and several have their own dedicated page that goes deeper than this one.
- Cerebral palsy, a movement disorder that in some cases is linked to oxygen deprivation around the time of birth. If your child was diagnosed with cerebral palsy, our Miami cerebral palsy lawyer page explains how these cases are investigated and valued.
- Brachial plexus injuries, including Erb’s palsy, which can result from excessive traction or a poorly managed shoulder dystocia during delivery. Our brachial plexus injury attorney page explains how these nerve injuries happen and when they may reflect negligence.
- Spina bifida, a congenital condition, where a claim generally turns not on the condition itself but on a negligent failure to detect or counsel about it prenatally. See our Miami spina bifida attorney page.
- Injuries to mothers during labor and delivery, from postpartum hemorrhage to surgical injuries during a cesarean. Our page on injuries to mothers during childbirth addresses the maternal side of these cases.
Beyond those, we handle birth injury claims involving hypoxic-ischemic encephalopathy (HIE) and other oxygen-deprivation brain injuries, kernicterus and untreated newborn jaundice, skull fractures and other delivery trauma, hematomas, injuries from cesarean sections, and, in the worst cases, the wrongful death of a mother or child. If what happened to your family is not named here, it may still be a case, and the way to find out is to have the facts reviewed.
Is a Birth Injury Lawsuit the Same as a Medical Malpractice Claim in Florida?
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For the most part, yes. When a birth injury claim alleges that an obstetrician, nurse, hospital, anesthesiologist, or other provider failed to meet the accepted standard of care, it is a medical malpractice claim, which is why birth injuries are a specialized form of medical malpractice. Florida’s medical-negligence rules apply, including the presuit requirements: before a lawsuit can be filed, the law requires a presuit notice, a 90-day presuit screening period, and corroboration of the claim by a medical expert’s written opinion (Fla. Stat. § 766.106). You can read more about how we approach these cases generally on our Miami medical malpractice page.
Two clarifications matter here. A bad outcome is not automatically negligence, because some birth injuries happen despite careful, competent care. And a narrow category of severe neurological injuries follows a separate no-fault path instead of an ordinary lawsuit, explained next.
What Is NICA in Florida?
NICA is the Florida Birth-Related Neurological Injury Compensation Association, which administers a no-fault state plan that provides benefits, without anyone having to prove negligence, for a narrow and specifically defined category of catastrophic birth injuries (Fla. Stat. § 766.303). The definition is strict. Under Fla. Stat. § 766.302, a covered “birth-related neurological injury” generally requires all of the following:
- A live birth in a hospital.
- A birth weight of at least 2,500 grams for a single birth, or at least 2,000 grams for a multiple birth.
- An injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury.
- That occurred during labor, delivery, or resuscitation in the immediate period after delivery.
- Leaving the child permanently and substantially impaired both mentally and physically.
Because the definition is this narrow, many birth injuries fall outside it. An injury that does not meet every element is not a NICA claim, but that does not by itself make it a lawsuit either; a claim outside NICA would be pursued, if at all, as an ordinary medical malpractice case, which still requires proving negligence, causation, and damages. Whether NICA applies to a particular child is a legal question worth answering early, because it shapes everything that follows.
How Long Do I Have to File a Birth Injury Claim in Florida?
In Florida, a birth injury claim generally must be brought within two years of when the injury was or should have been discovered, but a child’s claim is generally protected up to the child’s eighth birthday as an exception to the state’s four-year outer limit (Fla. Stat. § 95.11(5)(c)). Because those rules interact, there is no single deadline. That protection for a minor lifts the four-year bar up to the eighth birthday; it is not a guarantee of a full window to age eight, because how the two-year period is measured still depends on the facts. A parent’s own claim, for their expenses and losses, generally runs on the two-year clock and does not get the child’s extension. So it is a mistake to assume you always have eight years, and equally a mistake to assume that because your child is past the newborn stage the window has closed.
| Issue | General Florida rule | Why the answer can change |
|---|---|---|
| The child’s claim | Generally protected up to the child’s eighth birthday, as an exception to the four-year outer limit | This protects a child’s claim from the four-year bar; it is not a promise of eight years in every case, because the two-year discovery rule can still control |
| Discovery period | Generally two years from when the malpractice was discovered or reasonably should have been discovered | When a family had enough information to be on notice is a fact question that is often disputed |
| Outer limit (repose) | Generally four years from the incident | Fraud, concealment, or intentional misrepresentation can change the analysis, as can the minor’s exception above |
| The parent’s own claim | Generally two years | The parent’s individual claim does not receive the child’s extension, so it can expire well before the child’s does |
| Presuit process | A presuit notice, a 90-day screening period, and a corroborating medical expert opinion are required before filing | These steps take time of their own, so a deadline that looks far away is closer in practice than it appears |
Florida birth injury deadlines are not one clock. A child’s claim is generally protected up to the eighth birthday as an exception to the four-year outer limit, but the two-year period can apply sooner depending on the facts; a parent’s own claim generally runs two years. Because the rules interact, the safe deadline is the earliest one that applies to your case.
Because the calendar is genuinely confusing, do not try to compute your own deadline from a page on the internet, including this one. Call and let us calculate it from the facts of your case. If your family’s window has truly closed we will tell you, and if it has not, we will tell you how much of it is left.
How We Investigate a Miami Birth Injury Case
My approach to a birth injury case is the same disciplined approach I use for any medical malpractice case, because that is what it is. It starts with you. I get as detailed a chronology as I can from the parents or guardians, in your own words, because you were there and the record was not written for a lawyer.
From there I turn to the records. I gather whatever the family already has so I can begin reviewing right away, and I request everything else that is needed: the complete prenatal and labor-and-delivery chart, the fetal monitoring data, the nursing and medication records, the operative and anesthesia records if there was a cesarean, the cord blood gas results, and the newborn and NICU records. Then I do my own review, in-house, before a family commits to the expense of outside experts. I read the timeline for myself and form a view of where the care may have gone wrong.
Only then do I determine which medical experts are needed, matched to the same specialty as the providers whose care is in question, an obstetrician to judge an obstetrician, a specialist to judge a specialist. I retain those experts to perform the formal review the law requires. That order means that by the time I ask a family to commit to a case, I have already read it closely myself, and the experts I bring in are answering questions I have already framed. It is more hands-on than a high-volume intake operation, and it is the reason that when you call my office, you are talking to the attorney who will actually work your case.
What Compensation Can I Recover in a Florida Birth Injury Case?
In a serious birth injury case the recovery has to reach across the child’s entire life, which is why Florida law recognizes three kinds of damages: economic, non-economic, and, where a mother or child does not survive, wrongful death. What no one can honestly give you is a reliable average settlement, because the value of a case depends on how severe and permanent the injury is, how clear the provider’s fault is, what the records actually show, and what insurance and other resources are available to pay it.
- Economic damages, the measurable costs. In a catastrophic case these are the largest part by far, and they run for the child’s lifetime: future medical and surgical care, physical, occupational, and speech therapy, medications and medical equipment, wheelchairs and assistive devices, home and vehicle modifications, in-home nursing or attendant care, special education, and lost future earning capacity. Where the injuries are permanent, I bring in a life care planner and an economist to build out what a lifetime of care actually costs, so the number is grounded in evidence.
- Non-economic damages, the human costs, including the child’s pain and suffering, disability and physical impairment, and loss of the normal enjoyment of life.
- Wrongful death damages, which follow separate rules under Florida’s medical malpractice and wrongful death laws, where a mother or child does not survive.
We have recovered millions of dollars for injured clients. The way to protect the value of your own case is the same as the way to prove it: get the investigation started while the records are complete and the memories are fresh.
Why Families Choose Prosper Injury Attorneys
When you hire my office, you are not handed off to a case manager you never chose. I am Prosper Shaked, my office is in North Miami Beach, and I represent families throughout Florida. Birth injury cases are medically complex, expensive to build, and hard-fought by hospitals and their insurers, and they reward the kind of close, personal attention that this practice is built to give. The attorney who reads your child’s records is the same attorney you deal with from the first call to the last, not a name on the letterhead.
Frequently Asked Questions
Is every birth injury the result of medical malpractice?
No. Some birth injuries happen despite careful, competent medical care, and a difficult or tragic outcome is not proof that anyone was negligent. A birth injury becomes a malpractice case only when a provider departed from the accepted standard of care and that departure caused or worsened the harm. That is what a records review is designed to determine, which is why the diagnosis is the starting point of the analysis and not the conclusion.
What is the difference between a birth injury and a birth defect?
A birth defect is generally a condition that develops before birth from genetic or developmental causes, and it usually is not anyone’s fault. A birth injury is harm that occurs during pregnancy, labor, or delivery; whether the care provided caused or worsened it is a separate question. The distinction matters, because a genuine birth defect is generally not a malpractice case, while a preventable injury may be. The two are sometimes confused, and a failure to diagnose or manage a known condition can itself be negligence. Sorting out which one you are dealing with is part of the review.
Can I still sue if my baby’s birth injury was not obvious right away?
Possibly, and it is worth checking rather than assuming. Florida law contains a specific protection for children: the four-year outer limit that can bar an adult’s claim does not bar a child’s claim brought on or before the child’s eighth birthday. That protection is not the same as unlimited time, because how the two-year period is measured still depends on when the injury and its possible connection to the care were or reasonably should have been discovered. Cerebral palsy and some other conditions are often not identified until a child is older and misses milestones, which is exactly why the deadline has to be calculated on your specific facts rather than assumed.
How much does it cost to hire a birth injury lawyer?
Nothing up front. We work on a contingency fee, which means the fee is a percentage of what we recover, and if there is no recovery there is no fee. Birth injury cases are expensive to investigate and build, and handling them this way means a family can pursue a serious claim without paying out of pocket while they are already carrying the cost of their child’s care. The initial consultation is free.
What should I bring to a birth injury consultation?
Bring whatever you already have and do not worry about what you are missing. Any medical records you were given, discharge paperwork, your child’s diagnoses and current treatment, and your own written or remembered timeline of what happened are all helpful. If you have very little, that is fine, because a large part of what I do is request the complete records for you. The most valuable thing you bring to that first call is your own account of the delivery.
Can you get the hospital records for me?
Yes. Obtaining the complete available record, including the parts hospitals do not always hand over on the first request, such as the actual fetal monitoring strips rather than just the typed summary, is a routine and essential part of the work. You do not need to fight the records department yourself. Getting the complete record is one of the first things we do, because the case is built from it.
Who can be held responsible for a birth injury?
It depends on who did what. Depending on the facts, a claim may involve the obstetrician, the delivering nurses, an anesthesiologist, other physicians, or the hospital itself, and often more than one of them. Part of the early investigation is identifying every provider involved and determining which of them are separate legal entities and which are employed by the hospital, because that affects how the claim is brought.
Talk to a Miami Birth Injury Lawyer
If you believe your child or you were injured by negligent medical care during pregnancy, labor, or delivery, the most useful thing you can do is get the facts reviewed before more time passes. Call me at (305) 694-2676. You will talk to an attorney, and you will get an honest read on your situation and what needs to happen next. My office, Prosper Injury Attorneys, is in North Miami Beach, and I represent birth injury families throughout Florida. We have recovered millions of dollars for injured clients. The consultation is free, and I do not charge a fee unless I recover money for you.