The Difference Between a Birth Injury and a Birth Defect

The Difference Between a Birth Injury and a Birth Defect

The birth of a new member into your family should be a joyous occasion, and one that is filled with hope and celebration. However, nothing is scarier than learning that your new baby is sick or injured. This comes with stress, worry, and despair for your family. There are two kinds of medical issues that newborns may suffer from that can be caused by a doctor, medical staff, or third-party healthcare personnel: a birth injury or a birth defect.

Parents and family members of children who are victims of these preventable injuries at birth due to negligence of the medical staff during pregnancy, labour, or delivery have the right to pursue legal action.

To understand what your legal options are when it comes to these conditions, you need to recognize the differences between birth injuries and birth defects.

What are birth injuries and birth defects?

In Canada, there are around 1 in 25 babies born every year with a birth defect, and around 2 out of every 1000 babies that are born may suffer from a birth injury. The nature and cause of the baby’s injury or disability will help determine whether a family has an obstetric malpractice claim.

Birth Defects

Birth defects are injuries or health conditions that occur when a baby is still in the womb. About 3% to 4% of babies are born with birth defects, and embryos and fetuses are particularly vulnerable to harmful environmental factors at certain stages of development.

During the first 13 to 60 days, the baby’s major structures are developing, including the organs, and this time period is when the embryo is the most sensitive. During weeks 5 to 7, the central nervous system is being developed, and a birth defect during this stage is the most serious type. During the fetal stages, the baby will be less vulnerable, but they can still be affected by contaminants that cross through the placental-blood barrier.

Birth defects range in causation as well as severity. They can range from mild to moderate, while others are more serious. Severe birth defects might mean that the baby only has a few weeks or months to live.

Many birth defects are caused by a mix of environmental and genetic circumstances. About 70% of birth defects do not have a known cause, and the other 30% are due to chromosome abnormalities, single gene defects, multifactorial inheritance, and teratogens.

If the birth defect was caused by a genetic factor, there will be no legal grounds to file a claim against another party. On the other hand, if it can be proven that a birth defect was caused by a physician or another person, then you could be entitled to legal compensation.

Examples of common types of birth defects include:

  • Anencephaly;
  • Hemoglobin disorders;
  • Neural tube disorders;
  • Down syndrome;
  • Sickle cell disease;
  • Thalassemia; and
  • Upper and lower limb reduction defects.

What causes an increased risk of a birth defect?

Many factors contribute to the risk of a birth defect. Some environmental factors are out of our control and other factors are not. In a claim, if any of these factors are relevant, they could reduce the chances of legal compensation. They include:

  • Smoking;
  • Drinking any amount of alcohol;
  • Abusing recreational drugs like heroin or methamphetamine;
  • Using certain types of prescription medication;
  • Being obese or diabetic before or during pregnancy;
  • Having birth defects that run in the family; and
  • Conceiving at an older age (over 34 years old).

When can physicians or hospitals be held accountable for causing birth defects?

Unfortunately, many birth defects are preventable. Approximately 70% of major heart defects go undetected by physicians, 75% of babies missing limbs also go unnoticed, and over half of Down syndrome cases will also go unnoticed.

With the correct screening processes and medical care, physicians should be able to identify a problem and take action early through preventative measures for the best possible outcome in the future.

Screening can give healthcare workers notice of a birth defect that could cause potential issues during birth and which might need to be treated immediately to avoid injury. Preventative measures that should take place include ensuring mothers take enough folic acid, early detection, and surgery. Examples of preventative treatment include:

  • Aborting a pregnancy once Down syndrome is detected;
  • Surgery to fix specific types of spina bifida; and
  • Avoidance of shock or oxygen starvation caused by a heart problem unknown to doctors during birth.

Medical workers are held to a strict standard of care when giving their patients treatment. If that standard of care is broken, then a physician can be held liable for the damages they caused, including the pain and suffering, emotional distress, medical costs, and more

Birth Injuries

Like birth defects, birth injuries can also range in severity and cause. These injuries can include fractured bones, dislocation, brain damage, spinal cord damage, lacerations, contusions, and oxygen deprivation. Broken bones can be fixed, but strangulation due to the umbilical cord can result in brain damage or death.

Some birth injuries cannot be prevented, while others can and a doctor should be held accountable. Even during difficult or complex deliveries, it is the doctor’s responsibility to identify possible complications or be able to adapt to the situation when needed. Any doctors or hospital staff who act carelessly or recklessly can lead to a birth injury. When the standard of care has not been upheld, that party should be held liable for damages.

Differences Between Birth Defects and Injuries

The terms “birth defect” and “birth injury” are used interchangeably, and their meanings look quite similar; however, there are critical differences between them. A birth defect occurs before the baby is born, during its development in the womb. On the other hand, a birth injury happens during the delivery of the baby or immediately after.

If you or a loved one have experienced a cerebral palsy birth injury or birth defect, call Sommers Roth & Elmaleh at 844-777-7372.

Disclaimer and Liability Exclusion

The information on this page is provided for general information purposes only. It should not be construed as legal advice. It does not constitute legal or other professional advice or an opinion of any kind. Readers should seek specific legal advice regarding any specific legal issues. We do not in any way guarantee or warrant the accuracy, completeness or quality of the information on this page. The posts on this page are current as of their original date of publication, but they should not be relied upon as timely, accurate or fit for any particular purpose.

Accessing or using this web site or the content herein does not create a lawyer-client relationship.

This page may contain links to third party web sites. We are unable to, and do not, monitor and guarantee the quality of the information disseminated and accessible through those links, which are provided for convenience only. We do not endorse the information contained in linked web sites nor guarantee its accuracy, timeliness or fitness for a particular purpose.

    If you have been affected by medical malpractice anywhere in Canada contact us for a free consultation.
    You pay us nothing unless we win.

    A lawyer from Sommers Roth & Elmaleh will be in touch with you as soon as possible. Please note that no lawyer-client, advisory, or fiduciary relationship is created by your inquiry. All information provided is confidential.

    The above information is not legal advice. Past results of cases and recoveries by our medical malpractice lawyers against hospitals, doctors, midwives, nurses and other healthcare professionals are not necessarily indicative of future results. The amounts recovered and other litigation outcomes will vary according to the facts in individual cases.

    See Our Lawyer's Reviews

    Hilt this Tamrate
    Hilt this Tamrate
    23 May 2023
    Dear Mr Hilik Y. And Jeremy Syrtash. I would like to express my deepest gratitude to you and Sommers Roth and Elmaleh Professional Corporation staff for all you have done with respect to my wife case. My wife was a victim of Medical Malpractice after giving birth to our daughter. She become legally disabled both physically and mentally. The entire family devastated emotionally as my wife struggle to cope with the new reality. The case of Medical Malpractice is quite often a complex case to prove. However, due to your strong commitment, knowledge and dedication combined with strong professionalism the case was successfully won after a long arduous fight. The victory would not have been possible without your dedication and thorough research in the implementation of the standards of the Sommers Roth and Elmaleh Professional Corporation. Justice prevailed at last which in turn allowed my vulnerable wife to feel more optimistic about her future and that of our family. The positive outcome of this case has changed our lives forever. It would not have been possible without the excellent representation of Sommers Roth and Elmaleh Professional Corporation and its legal counsel. My wife and I will be deeply grateful for the successful outcome of this case for many years to come. Solomon Regassa
    Hector Cardenas
    Hector Cardenas
    4 January 2023
    I would like to take this opportunity to express my most sincere gratitude towards Sommers Roth & Elmaleh, from the day I met with Hilik and his team, they been not only highly knowledgeable but also extremely sensitive towards me and my family, providing us with the best legal service possible. It goes without saying, that I strongly recommend them to anyone looking for a charismatic, quality and result oriented legal team.
    10 October 2022
    We deeply appreciate Sommers Roth & Elmaleh for their professional skills and hard-working through the whole process of my son’s case. I still remember the first conversation we took with Mr. Hilik Y Elmaleh in his lawyer office sixteen years ago. From then on, your dedication, patience, understanding and continuous communications kept our encouragements and expectations for my son and our family. With the case settled down, my son can receive the full financial support, continuous therapies and finishing his university course. It is no doubt to say that Sommers Roth & Elmaleh not only changed our family’s life but also did contributions to the society, because my son can grow in a happy and health way in his teenage and receive university education from this autumn. Again we hereby strongly recommend the services provided by the lawyer office Sommers Roth & Elmaleh to those who needs the similar legal consultation and support. Even the door of your family was closed by some unfortunate events, there are more windows can be opened. The lawyers in Sommers Roth & Elmaleh are exactly the people who can open the windows and convert the sun-shine again to your family: Mr. Hilik Y Elmaleh,Mr.Jeremy Syrtash, Miss Fanny Peter ...etc. Finally, we express the deepest gratitude and appreciation again to Mr. Hilik Y Elmaleh and lawyer office Sommers Roth & Elmaleh. Wish a brighter future of Sommers Roth & Elmaleh !
    Meggie Zhangkrk6hdjybfjt
    Meggie Zhangkrk6hdjybfjt
    6 October 2022
    I am so glad that my son's CP medical case was completely successful. I appreciate lawyer Hilik Elmaleh, Jeremy Syrtash, Fanny Peter and their team's hard work. They are so knowledgeable, responsible and reliable. Thanks is not enough to express my gratitude. Mr. Hilik Elmaleh deserves "The Best Lawyer in Canada" award.
    Tony Zhou
    Tony Zhou
    29 September 2022
    I would like to extend my gratitude towards Mr. Hilik Elmaleh, Jermey Syntash, and Fanny Peter for their dedication, time, effort, and knowledge invested into my case. This is honestly the best team of lawyers in Canada. I would highly recommend them for any of your cases.
    Dianne Keckes
    Dianne Keckes
    18 July 2022
    I would like to take this opportunity to thank our daughter's "Dream Team", Hilik Elmaleh, Jeremy Syrtash and Fanny Peter. The compassion, dedication, knowledge, experience and their recognition in the legal community have ensured us that we were on the right track working with the firm Sommers, Roth and Elmaleh. Words cannot express enough my gratitude! I will be forever grateful!
    Ivica J Sokic
    Ivica J Sokic
    6 June 2022
    Thank you does not begin to express the depth of gratitude I have for Sommers Roth & Elmaleh Professional Corporation. From the first day I sat in Hilik's office, not once did I feel apprehensive. My concerns and worries were put at ease due to the kindness and compassion of Hilik, Jeremy and Fanny and their relentless persistence to secure my daughter's future. This has been a long but successful endeavor during some difficult times and through it all, the Team has been resilient, informative and were always available. I highly recommend this dedicated and professional law firm and I will be forever in their debt.
    Arden Melnechuk
    Arden Melnechuk
    1 December 2021
    I was in a serious horse accident where the horse was injured and should never have been ridden. The owner of the horse was aware that the horse had chronic arthritis issues and the veterinarians at Guelph had told him the horse could decompensate at any time and could cause serious injury whether being led or ridden and could never be jumped again. The horse had been shown at the grand prix level and the owner had payed quite a bit of money for him. After consulting with several lawyers and having one that did represent me at the discoveries who later quit, Jeremy Syrtash took on the case and followed through with guelph university. That is how we found out that the vets had recommended the above. Without Jeremy's efforts and follow through the case would never have continued on. Because of these efforts the case was successful. Thank you so much Jeremy. You are a dedicated, thorough, excellent lawyer and it's been a pleasure to have you as my lawyer!!
    Megha Sharma
    Megha Sharma
    16 April 2021
    Mr. Elmaleh and his team are very professional and experts in their field. Recommend to everyone who has suffered medical negligence.
    Nick & Whitney Maraschiello-Basnett
    Nick & Whitney Maraschiello-Basnett
    18 July 2020
    We want to start by saying how much we highly recommend Sommers, Roth and Elmaleh for anyone who is dealing with a situation involving medical malpractice. Hilik and the entire firm have allowed us the opportunity to give our little girl the life she deserves. There is no taking back what happened, but they truly turned such a tragedy into a victory. They fought long and hard, and put forth so much time and effort into making the individuals accountable and responsible for the mistakes that were made. They always showed true compassion for our family, guided us with ease, and supported us through every step. This was such a life changing experience with the firm, and honestly we will always be forever grateful and thankful.