Austin Birth Injury Attorneys

A birth injury is physical harm to an infant or mother caused during pregnancy, labor, delivery, or the newborn period. When that harm results from a provider’s failure to meet accepted medical standards, it becomes a health care liability claim under Texas law, governed by Chapter 74 of the Texas Civil Practice and Remedies Code.

Birth Injury Versus Birth Defect

These are different things, and the distinction usually determines whether a case exists.

A birth defect is a structural or genetic condition that formed during fetal development — a chromosomal disorder, a congenital heart defect, a neural tube defect. These generally are not caused by anything a provider did during delivery, though a failure to diagnose a treatable condition prenatally can sometimes support its own claim.

A birth injury is trauma or oxygen deprivation caused by events around the delivery itself. This is where obstetric negligence claims live.

An Honest Word About Cerebral Palsy

Most cerebral palsy is not caused by medical malpractice. According to the CDC and the NICHD, the majority of CP is congenital and traces to causes that develop before labor begins — infection, stroke in utero, genetic factors, prematurity.

We tell families this upfront because the alternative is worse: months of hope built on a case the medical evidence will not support.

That said, a meaningful subset of CP does result from preventable oxygen deprivation during labor and delivery. Distinguishing one from the other is not guesswork.

Why Timing Is the Whole Question

Nearly every contested birth injury case comes down to when the injury occurred. Was the insult acute and intrapartum — during labor, when the care team could have intervened — or was it a chronic process that began days or weeks earlier, before anyone at the hospital could have changed anything?

There is objective evidence that answers this. Fetal monitoring tracings, umbilical cord blood gas values, the timing and pattern of MRI findings, and placental pathology allow qualified specialists to date the injury rather than speculate about it.

That is what the investigation is for, and it is why these cases are decided by records rather than by how the delivery felt.

The Deadline Trap That Costs Texas Families the Most

Read this section even if you read nothing else on this page.

Most parents assume that because the injured person is a child, there is plenty of time. In Texas, that assumption is wrong in a specific and expensive way.

Your Claim Is Separate From Your Child’s Claim

Under Texas law, the claim for a child’s medical expenses incurred before the child turns 18 generally belongs to the parents, not the child. That is usually the single largest category of provable economic damages in a birth injury case — years of surgeries, therapy, equipment, and nursing care.

The parents’ claim is an adult’s claim. It is not extended by the child’s age. It runs on the standard two-year health care liability deadline.

So a family can wait, believing their child’s claim is safe, and discover that the parents’ claim for hundreds of thousands of dollars in medical expenses expired years earlier. This is the most common and most costly mistake we see in Texas birth injury matters, and almost no law firm page mentions it.

Your Child’s Deadline Is Legally Unsettled

Here is the honest picture, which most pages either skip or state with false confidence.

The statute, Section 74.251, says a minor under 12 has until the 14th birthday to bring a claim.

But the Texas Supreme Court held in Weiner v. Wasson (1995) that the predecessor version of that rule was unconstitutional as applied to minors under the Texas Constitution’s open courts provision, because a statute cannot extinguish a child’s claim before the child is legally able to bring it. Under that reasoning, limitations would not begin until the child turns 18.

The Texas Supreme Court has not squarely ruled on the current statute. Lower courts have applied Weiner’s reasoning to it, but the question is not definitively settled.

The Ten-Year Absolute Cutoff

Section 74.251(b) also contains a ten-year statute of repose: no health care liability claim may be brought more than ten years after the act or omission. The Texas Supreme Court has described a statute of repose as not subject to judicially crafted tolling, which makes it a far harder barrier than an ordinary limitations period.

Additional Deadlines That May Apply

• Public hospitals and governmental providers. Claims involving a public hospital district, a university-affiliated provider, or another governmental entity can carry notice deadlines as short as six months, and sometimes shorter under local charters.
• 60-day pre-suit notice. Written notice with a statutory medical authorization must be served on each provider before filing, and doing so correctly tolls limitations.
• 120-day expert report. After suit is filed, qualified expert reports must be served on each defendant within 120 days of that defendant’s original answer, or dismissal is mandatory and permanent.

What This Means You Should Actually Do

Never rely on the longer interpretation. Assume the earliest possible deadline applies and act accordingly. A family that plans around age 18 and is wrong has no remedy. A family that acts early loses nothing.

If your child was born more than a year ago, the practical question is no longer whether you have time. It is whether the parents’ claim is still alive, and that requires an actual review of your dates rather than a general rule from a webpage.

Types of Birth Injury Cases We Investigate

Hypoxic-Ischemic Encephalopathy (HIE)

HIE is brain injury caused when oxygen or blood flow to a baby’s brain is reduced around the time of birth. It is the injury most often at the center of a serious birth trauma claim, and it frequently leads to cerebral palsy, seizure disorders, and cognitive impairment.

Claims typically involve a fetal heart tracing showing distress that went unaddressed, a delayed decision to deliver, uterine rupture, placental abruption, or umbilical cord compression that was not recognized.

Failure to Provide Therapeutic Hypothermia

This one is under-recognized and worth understanding. For qualifying newborns with moderate to severe HIE, therapeutic hypothermia — controlled body cooling — is standard care and must generally begin within about six hours of birth to be effective.

When a hospital fails to identify a cooling candidate, fails to initiate cooling in time, or delays transfer to a facility that can provide it, the resulting worsening of brain injury can be a separate claim independent of whatever happened during delivery.

This matters practically because a family may be told the delivery itself was appropriate — and that may be true — while the newborn management was not.

Delayed or Failed Emergency Cesarean Section

When fetal distress appears, the response is time-sensitive. Claims arise from failing to recognize a Category III tracing, failing to escalate to the attending physician, an anesthesiologist or surgical team not being available, and prolonged decision-to-delivery intervals.

Staffing and call-schedule records often establish whether the delay was clinical judgment or resource availability, and those are two very different cases.

Fetal Monitoring Errors

Continuous electronic fetal monitoring generates a record of exactly what the care team could see and when. Late decelerations, prolonged decelerations, minimal or absent variability, and a rising baseline are recognized warning patterns.

Cases often turn on documented distress that nobody acted on for an hour or more, or on a nurse who escalated appropriately and a physician who did not respond.

Shoulder Dystocia and Brachial Plexus Injuries

When a baby’s shoulder lodges behind the mother’s pubic bone, there is an established sequence of maneuvers to relieve it. Excessive lateral traction on the head, or the use of fundal pressure — which is generally contraindicated in shoulder dystocia — can stretch or tear the brachial plexus nerves, causing Erb’s palsy or a permanent arm impairment.

Related claims include failure to anticipate dystocia risk in a large baby or a mother with gestational diabetes, and failure to offer a cesarean when risk factors were documented.

Vacuum Extraction and Forceps Injuries

Assisted delivery is appropriate in the right circumstances. It becomes negligent when used without proper indication, applied incorrectly, continued past accepted limits, or when vacuum and forceps are used sequentially. Injuries include subgaleal hemorrhage, intracranial bleeding, skull fracture, and facial nerve palsy.

Where the device itself malfunctioned rather than the technique, a defective product claim against the manufacturer may run alongside the malpractice claim.

Labor Induction and Oxytocin Mismanagement

Excessive oxytocin can cause tachysystole — contractions too frequent for the placenta to reoxygenate the baby between them. Failure to reduce or stop the infusion in the face of a deteriorating tracing is a recurring allegation, and the infusion record documents it precisely.

Untreated Maternal Conditions

Preeclampsia, HELLP syndrome, gestational diabetes, chorioamnionitis, and untreated Group B strep all carry established management protocols. Failure to screen, diagnose, or treat can injure the mother, the baby, or both.

Newborn and NICU Care Failures

Not every birth injury happens in the delivery room. Claims arise from untreated jaundice progressing to kernicterus, undetected neonatal hypoglycemia, missed sepsis, resuscitation failures, feeding tube misplacement, medication dosing errors in infants, failure to escalate a deteriorating newborn, and monitoring lapses in the NICU.

Kernicterus cases deserve particular mention because they are so preventable. Bilirubin screening, plotting against established thresholds, and timely phototherapy or exchange transfusion are well-defined steps, and a failure at any of them is documentable from the chart.

Maternal Birth Injuries and Death

Mothers are injured too, and their claims are frequently treated as an afterthought.

We investigate severe postpartum hemorrhage managed too slowly, undiagnosed uterine rupture, retained placenta, third and fourth-degree tears from improper delivery technique, anesthesia complications during cesarean section, undiagnosed preeclampsia progressing to eclampsia or stroke, and failure to recognize maternal sepsis.

Where a mother does not survive, the family may bring a wrongful death claim, and the estate may bring a survival claim.

The Evidence That Decides Birth Injury Cases

Birth injury claims are won or lost on objective medical evidence. These are the records that matter, and several of them are time-sensitive.

Electronic Fetal Monitoring Strips

The complete tracing, not a summary, and ideally in its native archived form rather than a printed excerpt. This shows what the team could see and precisely when. Archived monitor data sometimes contains more than what was printed to the chart.

Umbilical Cord Blood Gas Results

A low arterial pH and elevated base deficit at birth help establish that oxygen deprivation occurred around delivery rather than earlier. The absence of cord gases is itself notable, because obtaining them is routine in a concerning delivery.

Apgar Scores and the Resuscitation Record

Timing of interventions in the first minutes matters enormously — when bag-mask ventilation began, when intubation occurred, when a code was called, and who was present.

Neonatal MRI, and When It Was Performed

The pattern of injury on MRI, and the timing of the scan relative to birth, help experts date when the insult occurred. Certain patterns are associated with acute profound events and others with chronic partial hypoxia, which is exactly the question the case turns on.

Placental Pathology

Often decisive and often lost.

Examination of the placenta can distinguish an acute intrapartum event from a chronic process that began weeks earlier. Findings such as chorioamnionitis, funisitis, meconium staining, infarcts, or fetal vascular malperfusion all carry timing implications.

Many hospitals discard placentas after a set retention period. If your delivery was recent, ask in writing whether the placenta was sent to pathology and whether tissue blocks and slides are retained. This is one of the few things a parent can do today that a lawyer cannot do for them later.

Nursing Notes and the Electronic Chart Audit Trail

Audit metadata shows who viewed the monitor, who charted what, and whether entries were made or amended after the fact. In labor and delivery cases, late entries after a bad outcome are not unusual and are highly significant.

Staffing Records and Unit Census

Whether the labor and delivery unit was appropriately staffed that shift, whether the attending was physically present or on call from elsewhere, and how many patients the responsible nurse was covering.

The Mother’s Complete Prenatal Record

Documented risk factors that should have changed the delivery plan — estimated fetal weight, gestational diabetes, prior cesarean, prior shoulder dystocia, hypertension, or abnormal growth scans.

Getting the Records

Most families request far too little, and a general request produces a discharge summary that answers nothing.

• Request records for both mother and baby. They are separate charts, often at separate medical record numbers, and both are needed.
• Name the components explicitly — prenatal records, labor and delivery records, the complete fetal monitoring tracing, cord blood gas results, the delivery note, operative report if applicable, anesthesia record, neonatal resuscitation record, NICU records, all nursing notes, medication administration records, and lab results.
• Ask for imaging on disc, not just the radiology reports.
• Ask specifically about the placenta — whether it was sent to pathology, whether a report exists, and whether blocks and slides are retained.
• Ask for the electronic chart audit trail by name. It will not be included otherwise.
• Put everything in writing and keep a copy of what you sent and when.

Requesting records is not an act of hostility and it does not commit you to anything. It simply preserves your ability to have someone review what happened while there is still time to act.

The Hospital’s Own Review Is Probably Privileged

After a serious delivery outcome, hospitals investigate. A committee reviews what happened, sometimes identifies exactly what went wrong, and sometimes changes a protocol as a result. Families naturally assume that analysis will be available to them.

It generally will not be. Under Chapter 160 of the Texas Occupations Code and Chapter 161 of the Texas Health and Safety Code, medical peer review and medical committee proceedings and records are confidential and generally not subject to discovery without a written waiver from the committee.

The important exception is that the privilege does not reach records made or maintained in the regular course of business. The chart is a business record. So are the monitoring strips, nursing notes, medication records, lab results, and staffing assignments.

What is shielded is the committee’s analysis, not the underlying facts. That is why these cases have to be rebuilt independently from the primary record — and why nobody should wait for the hospital to explain itself. That explanation, if it exists, is not coming.

Why Birth Injury Claims Need More Than One Expert

Chapter 74’s expert report requirement is demanding in every medical case. In birth injury it is harder than anywhere else, and understanding why explains both the cost and the timeline.

The 120-Day Requirement

A claimant must serve each defendant with a qualified expert report and curriculum vitae no later than the 120th day after that defendant files an original answer. The report must identify the applicable standard of care, explain specifically how that defendant breached it, and connect the breach to the injury.

If the deadline is missed, dismissal is mandatory and with prejudice, and the court may award the defendant’s attorney’s fees against the family.

One Expert Is Not Enough Here

A typical birth injury case involves several defendants performing different roles — an obstetrician, one or more labor and delivery nurses, possibly a nurse midwife, an anesthesiologist, a neonatologist, and the hospital itself.

The report has to address each of them specifically. A single obstetrician’s report that speaks generally about “the defendants” will not support a claim against the nursing staff or the hospital. In practice this means assembling a coordinated team — commonly a maternal-fetal medicine physician or obstetrician, a labor and delivery nurse, a neonatologist, and a pediatric neurologist or neuroradiologist to address causation.

Expert Qualification Is a Separate Trap

Texas sets specific statutory requirements for who may opine against a physician versus another type of provider versus an institution. An otherwise excellent expert who does not meet those requirements produces a report that fails, and the failure is entirely avoidable.

The Cure Period and the Appeal

A court may grant one 30-day extension to cure a deficient report. Beyond that, an order denying a motion to dismiss over an expert report is immediately appealable, and defendants routinely challenge, lose, and appeal — adding a year or more before discovery meaningfully begins.

This is why credible firms decline cases they cannot support with expert testimony, and why the investigation phase takes many months rather than weeks.

What a Birth Injury Case Is Worth

There is no formula and no lawyer can responsibly quote a number before reading the records. What we can explain is how the value is built.

Economic Damages Are Not Capped

This matters more in birth injury than in any other malpractice case. Texas caps noneconomic damages — pain, suffering, mental anguish — at $250,000 against physicians and individual providers combined, and $250,000 per health care institution up to $500,000 across institutions.

Economic damages are not capped. In a case involving permanent neurological injury, economic damages are the case. They typically include:

• Lifetime medical care, surgeries, and therapies
• Attendant and skilled nursing care, often for decades
• Assistive technology, mobility equipment, and communication devices
• Home and vehicle modifications
• Special education and vocational services
• The child’s lost future earning capacity as an adult
• Care the parents provide themselves that would otherwise be paid services

Life Care Planning

Building this requires a life care planner, a pediatric specialist, an economist, and a vocational expert. It resembles the damages model in a catastrophic injury case, projected across a lifetime rather than a working career.

One difficulty specific to young children: the full scope of need is not knowable immediately. A child’s developmental trajectory becomes clearer over time, and settling before it does is how families end up undercompensated for the decades that follow.

Why Cases With Modest Damages Often Cannot Be Brought

Expert review, life care planning, and litigation costs in birth injury routinely run into six figures before trial. Where an injury resolved or the long-term needs are limited, the economics may not work no matter how clearly a provider erred.

We will tell you that directly rather than let you find out after a year.

What Happens to the Money: Protecting Your Child’s Benefits

This is the question parents ask us most, and almost no law firm page addresses it. It deserves a straight answer.

A recovery paid directly to a disabled child can disqualify that child from Medicaid, SSI, and waiver programs that may be funding their care. Families are sometimes shocked to learn that winning a case can cost them benefits they depend on.

That outcome is avoidable with proper planning.

Court Approval and the Guardian Ad Litem

Texas courts review and approve settlements involving minors, and a judge may appoint a guardian ad litem to represent the child’s interests independently of both the parents and the attorneys. That review is protective of your child, not adversarial to you.

Special Needs Trusts

Properly drafted, these hold funds for the child’s benefit without counting as the child’s resources for means-tested benefits. The drafting details matter, and this is specialist work that should be planned for rather than improvised at settlement.

Structured Settlements

Periodic payments timed to the child’s anticipated needs across their life rather than a single lump sum. Useful where care costs will escalate at predictable points, such as the transition out of school-based services.

Lien Resolution

Medicaid, ERISA plans, and health insurers may assert reimbursement rights against a recovery. These are negotiated, not simply paid, and reducing them is a meaningful part of what the family actually keeps.

Planning for all of this at the outset — not after a settlement is on the table — is part of doing the case correctly.

What the Defense Will Argue

Knowing the playbook in advance makes it far less unsettling when it starts.

• The injury was antenatal. The central defense: that the harm occurred weeks before labor from infection, a genetic cause, or a stroke in utero, and nothing the delivery team did or failed to do changed the outcome.
• Genetic testing. Expect the defense to seek genetic and metabolic testing of your child to identify an alternative cause. This is standard, and families should not be alarmed by the request itself, though the scope is worth having reviewed.
• Placental findings support a chronic process. The same evidence that can prove your case can be read the other way, which is why the pathology needs independent expert review rather than acceptance of the hospital’s interpretation.
• Prematurity explains the outcome.
• The tracing was reassuring, or its interpretation was within the range of reasonable clinical judgment.
• Earlier delivery would not have changed anything — the causation defense, and frequently the hardest one to overcome.
• The standard of care was met even though the outcome was poor.

Most of these are answered with evidence rather than argument, which is why the record work matters so much.

How We Investigate a Birth Injury Claim

1. Free, Unhurried Case Review

We listen to the full pregnancy, labor, and delivery timeline, identify every provider and facility, and flag deadline exposure immediately — including the separate parental claim discussed above.

2. Complete Record Collection

We request the entire prenatal, labor and delivery, newborn, and NICU record for both mother and baby, plus fetal monitoring data in its native archived form, imaging files rather than reports alone, placental pathology if it exists, and the chart audit trail.

3. Multi-Specialty Expert Review

Records go to a coordinated team selected to satisfy Chapter 74’s qualification requirements for each specific defendant.

4. Straight Assessment

If the experts conclude the injury was not caused by the delivery team, we tell you plainly and explain what the evidence showed. Many families tell us that answer had value in itself, even though it was not the answer they wanted.

5. Statutory Notice and Filing

When the case is supported, we serve the required 60-day notice and authorization, then file in the appropriate court — often through the Travis County District Clerk or the equivalent in Williamson, Hays, Bell, or Bastrop County.

6. Expert Reports, Discovery, and Resolution

We serve Chapter 74 expert reports within the statutory window, then move through discovery, depositions of the delivery team, and defense expert challenges. Most cases resolve at mediation. Preparing as though the case will be tried is what makes that resolution fair.

How a Birth Injury Case Proceeds

Months One Through Three

Records requested and collected for both mother and child. Deadline analysis completed, including the separate parental claim. Providers and entities identified.

Months Three Through Twelve

Multi-specialty expert review. This is the slowest phase and the hardest for families, because it looks like nothing is happening. It is where the case is actually decided.

Notice and Filing

The 60-day notice is served on each provider, then suit is filed. Defendants answer, starting the 120-day expert report clock.

The Expert Report Fight

Reports are served and challenged as to each defendant. Expect motions to dismiss, a possible cure period, and possible interlocutory appeals. This phase alone can add a year or more.

Discovery and Life Care Planning

Depositions of the delivery team and corporate representatives, alongside development of the damages case as your child’s needs become clearer.

Mediation and Court Approval

Most cases resolve at mediation. A settlement involving a minor then requires court approval, with a guardian ad litem frequently appointed. Overall timelines commonly run two to four years, longer where appeals occur.

Support Available to Your Family Right Now

Whether or not you ever bring a claim, these resources exist and are worth pursuing immediately. Early intervention has measurable effects on developmental outcomes.

• Texas Early Childhood Intervention (ECI). A statewide program for children from birth to 36 months with developmental delays, disabilities, or qualifying medical diagnoses. You can self-refer — you do not need a physician referral or a diagnosis in hand. Start at Texas HHS Early Childhood Intervention Services.
• School district services at age three. ECI transitions to school-based special education when your child turns three. Begin that transition planning early, because gaps in services are common at the handoff.
• Medicaid waiver programs. Texas operates several waiver programs for children with significant disabilities. Interest lists can be years long, so getting on them early matters a great deal.
• Provider licensing history. You can review a physician’s license status and public disciplinary record through the Texas Medical Board physician profile search.

Pursuing these services does not harm a legal claim. It helps your child, and it documents their needs, which strengthens the damages case if one is brought.

What to Do If You Suspect a Birth Injury

• Request the complete records in writing — prenatal, labor and delivery, newborn, and NICU — for both mother and baby.
• Ask specifically about the placenta if the birth was recent. Whether it went to pathology, and whether slides and blocks are retained.
• Write down what you remember now. Names, shift changes, times, what you were told and by whom. This fades faster than you expect.
• Keep every bill, EOB, therapy note, and evaluation. These become the economic damages record.
• Do not sign a release, waiver, or bill forgiveness agreement from the hospital, its insurer, or a patient relations representative without legal review.
• Keep pursuing treatment and early intervention. It helps your child and it documents need.
• Do not post about the delivery or your child’s condition on social media.
• Call a lawyer before your second anniversary of the delivery, given the separate parental claim deadline.

Questions Worth Asking Any Lawyer You Consider

• Is my own claim as a parent still alive? If a lawyer does not raise the separate parental deadline in the first meeting, that is a meaningful signal.
• Which experts will you retain, and are they qualified under Chapter 74 for each specific defendant?
• Who advances the expert costs, and what happens to them if we do not recover? These routinely reach six figures in birth injury.
• What is your read on causation, not just on whether the care was poor? Causation defeats more birth injury claims than breach does.
• How will you protect my child’s Medicaid and SSI eligibility? A lawyer thinking about this at the outset is thinking about your child’s whole life.
• Have you handled birth injury cases specifically, and will you associate counsel if needed? An honest answer is worth more than a confident one.
• Who will actually work my file, and can I reach an attorney?

Why Families Choose Kelley Wolff Injury Attorneys

• We check the parental deadline first, because it is the one families lose without knowing.
• Honest screening. We will tell you early whether the medicine supports a claim. We would rather deliver a hard answer in month one than in year two.
• Selective caseload. Birth injury cases demand sustained attention. We take few of them so each one gets it.
• Serious record work. We read the tracing, the nursing notes, and the audit trail — not just the discharge summary.
• Correctly qualified experts. Texas is strict about expert qualifications, and birth injury requires a coordinated multi-specialty team addressing each defendant separately.
• Benefits planning built in. We think about special needs trusts, structures, and lien resolution from the beginning, not after settlement.
• Central Texas practice. We know the courts and procedures across Travis and the surrounding counties.
• Contingency representation. No attorney’s fee unless we recover. We advance the case costs, which in birth injury are substantial.
• Direct attorney access. You will be able to reach Travis S. Kelley and Colin Wolff about your family’s case.

Talk to an Austin Birth Injury Attorney

If something about your child’s delivery has never sat right with you, the most useful thing you can do is have the records reviewed while the evidence still exists and the deadlines are still ahead of you.

Two of those deadlines are running right now, and they are not the same. Your child may have years. You may not.

We will look at what happened and give you a straight answer. If we take the case, you pay no attorney’s fee unless we recover for your family. If we do not, you will at least know what the medical evidence actually shows — and many families have told us that answer was worth having on its own.