Birth Injury Lawsuits in West Virginia: HIE, Cerebral Palsy, and Erb’s Palsy

The first hours after a hard delivery rarely feel like the start of a legal question. A baby goes to the NICU, a nurse mentions cooling therapy, and months later a pediatrician in Charleston or Morgantown says the words cerebral palsy. A West Virginia birth injury lawsuit asks a narrow question about those hours: did the care during labor and delivery meet the standard the law requires, and did a failure to meet it cause this child’s condition?

Most of the time, the answer is no. Sometimes the monitoring strips and delivery notes tell a different story, and a family learns that only because someone with medical and legal training read them line by line. At Powell & Majestro, P.L.L.C., we know how much rides on that reading, and on deadlines that run quietly while parents focus on therapy appointments.

West Virginia gives parents far less time than most expect. The clock does not wait for a diagnosis.

What counts as a birth injury under West Virginia law?

A birth injury is harm to a baby caused during labor, delivery, or the hours right after, as distinct from a birth defect that formed earlier in pregnancy. In West Virginia, claims involving obstetric care fall under the Medical Professional Liability Act, which sets its own deadlines and proof requirements.

A birth defect develops in the womb, often for reasons no physician could have predicted. A birth injury happens to an otherwise healthy fetus because something went wrong in how labor was managed or how the newborn was treated. The Medical Professional Liability Act, at Chapter 55, Article 7B of the West Virginia Code, governs claims against hospitals, obstetricians, nurse-midwives, and delivery nursing staff. The patterns we see most often:

• Failure to recognize or respond to a non-reassuring fetal heart rate pattern
• Delay in ordering or performing an emergency cesarean section
• Improper use of forceps or vacuum extraction
• Excessive uterine stimulation from oxytocin
• Mismanagement of a shoulder dystocia
• Failure to treat newborn encephalopathy, infection, or severe jaundice

What is hypoxic-ischemic encephalopathy?

Hypoxic-ischemic encephalopathy is brain injury caused by a loss of oxygen or blood flow around the time of birth. It occurs in roughly one to three of every 1,000 live births in developed countries and is a leading cause of permanent neurological disability in full-term newborns.

HIE is an oxygen problem that becomes a brain problem, and the damage keeps unfolding for hours after blood flow is restored. Diagnosis rests on two findings together: significant acidosis, typically a cord blood pH below 7 or a base deficit of 10 or more, and clinical encephalopathy such as poor tone, depressed consciousness, or seizures. Population research published through the National Institutes of Health uses that same pairing to identify perinatal HIE. The events behind it are usually sudden:

• Placental abruption
• Umbilical cord prolapse or compression
• Uterine rupture
• Prolonged fetal bradycardia
• Maternal hemorrhage or cardiovascular collapse

Why do the first six hours after birth matter so much?

Therapeutic hypothermia, the controlled cooling of a newborn, is the standard treatment for moderate to severe HIE, and it must begin within about six hours of birth for the greatest chance of limiting brain damage. Once that window closes, the opportunity does not come back for that child.

Cooling is not available everywhere. Three West Virginia hospitals operate the highest levels of neonatal intensive care: WVU Medicine Children’s in Morgantown, which runs a fifty-bed Level IV NICU; CAMC Women and Children’s Hospital in Charleston; and Hoops Family Children’s Hospital at Cabell Huntington in Huntington. A baby born elsewhere has to reach one of them, and the window does not pause for the drive. The timeline in these cases starts at delivery: when the condition was recognized, when the blood gas was drawn, when transport was called, and when cooling began.

Does cerebral palsy always mean a doctor made a mistake?

No. Cerebral palsy is the most common motor disability in childhood, and the CDC reports that a lack of oxygen during birth causes only a small number of cases. Abnormal brain development and prenatal injury account for most. A claim succeeds only when the records show that obstetric care caused the harm.

A diagnosis by itself proves nothing about the delivery. The Centers for Disease Control and Prevention reports that 85 to 90 percent of cerebral palsy is congenital and that oxygen loss during birth, long assumed to be the primary cause, is now believed to explain only a small share of cases.

What separates the cases is the record read alongside the imaging. Neonatal MRI often reveals both a pattern and an approximate timing of injury, and an acute insult to the basal ganglia looks nothing like the diffuse white matter changes associated with prematurity. When imaging points to an injury during labor and the strips show warning signs that went unanswered, the claim has a foundation. When it does not, families are better served hearing that early.

What is Erb’s palsy, and when does it point to a delivery error?

Erb’s palsy is weakness or paralysis in a newborn’s arm caused by damage to the brachial plexus nerves, often during a shoulder dystocia delivery. Most infants recover within a year. The cases that raise legal questions involve excessive traction, delayed recognition of a stuck shoulder, or an undocumented emergency.

Erb’s palsy involves the upper brachial plexus nerves at C5 and C6 and produces a recognizable posture: the arm hangs limp and rotated inward, what clinicians call the waiter’s tip position. Published research puts the incidence at roughly 1.74 per 1,000 live births. The dominant risk factor is shoulder dystocia, where the shoulder lodges behind the mother’s pubic bone after the head delivers. Other recognized risks:

• Fetal macrosomia, generally a birth weight above 8 pounds 13 ounces
• Maternal diabetes, including gestational diabetes
• Forceps or vacuum-assisted delivery
• Breech presentation
• A prior delivery complicated by shoulder dystocia

Liability is never automatic. About three-quarters of these injuries occur without any documented shoulder dystocia, and the forces of labor alone can injure the nerve. What decides a case is whether the risk was foreseeable, which maneuvers were used, and whether the delivery note records any of it.

How long do parents have to file a birth injury lawsuit in West Virginia?

For a child under 10 at the time of injury, West Virginia Code § 55-7B-4(c) requires suit within two years of the injury or before the child’s 12th birthday, whichever period is longer. Because a newborn is injured at age zero, the 12th birthday usually controls, though waiting that long is risky.

West Virginia Code § 55-7B-4 sets the deadline, and subsection (c) holds the rule for young children. The statute also imposes an outer limit measured from the date of injury, and the periods pause only where a provider concealed or misrepresented material facts. The twelfth birthday is a deadline, not a starting line, and the work that comes first takes months:

1. Obtain the complete labor, delivery, and neonatal records, including the raw monitoring data
2. Have qualified physicians review them and reach opinions on breach and causation
3. Serve a notice of claim and screening certificate of merit on every provider to be sued
4. Wait the statutory 30 days before the complaint can be filed

Can a family wait until the child turns 18?

No. West Virginia’s general rule pausing deadlines for minors does not rescue a medical malpractice claim. In Osborne v. Mace, decided in November 2025, the Intermediate Court of Appeals upheld the Medical Professional Liability Act’s separate, shorter deadline for injured children and affirmed dismissal of a claim filed after it expired.

Osborne involved a sixteen-year-old whose fractured leg was splinted in an emergency department. He developed compartment syndrome and sued within two years of turning 18, relying on the general tolling statute for minors. The Circuit Court of Harrison County dismissed the case, and the Intermediate Court of Appeals affirmed, holding that the Act’s specific deadline controls over the general rule. The court pointed to Cartwright v. McComas, where a four-year-old plaintiff’s period ran only until her twelfth birthday.

What has to happen before a birth injury lawsuit can be filed?

Before filing, a family must serve every provider they intend to sue with a notice of claim and a screening certificate of merit, sent by certified mail at least 30 days in advance. The certificate is a sworn opinion from a qualified physician identifying the breach and how it caused the injury.

West Virginia Code § 55-7B-6 treats this as a prerequisite, not a formality. The certificate must be sworn by a physician who qualifies as an expert under the rules of evidence and who devoted at least 60 percent of professional time to clinical practice or teaching in the relevant field. Each one must state, with particularity:

1. The basis for the physician’s familiarity with the applicable standard of care
2. The physician’s qualifications
3. How the applicable standard of care was breached
4. How that breach resulted in injury or death
5. Every medical record and source the physician reviewed

A separate certificate is required for each provider sued, and the signing physician can hold no financial interest in the claim. In a birth injury case, that usually means opinions from more than one field.

What do parents have to prove to win?

West Virginia Code § 55-7B-3 requires proof that the provider failed to meet the applicable standard of care and that the failure was a proximate cause of the injury. Both elements depend almost entirely on testimony from qualified medical witnesses who can read fetal monitoring strips and neonatal imaging.

Causation is where these cases are usually won or lost. Defense counsel will argue that the harm was done before the mother reached the hospital, that a genetic or infectious process explains the outcome, or that no different decision would have changed the result. West Virginia also recognizes a loss of chance theory: a family proceeding that way must prove, to a reasonable degree of medical probability, that meeting the standard of care would have produced a greater than 25 percent chance of improved recovery or survival.

What compensation is available, and what does West Virginia cap?

Economic damages, including lifetime medical care, therapy, equipment, home modifications, and lost earning capacity, are not capped in West Virginia. Non-economic damages are. Section 55-7B-8 sets limits of $250,000, or $500,000 for catastrophic injury and death, with inflation adjustments that cannot exceed 150 percent of those figures.

The economic side carries most of the value in a catastrophic case, and no statutory limit applies to it. A child with spastic quadriplegic cerebral palsy may need decades of nursing, therapy, equipment, and a modified home. Recoverable categories:

• Past and future medical treatment, therapy, and nursing care
• Assistive equipment, adaptive technology, and home modifications
• The child’s lost earning capacity across a working lifetime
• Pain, suffering, and loss of enjoyment of life, subject to the statutory cap

West Virginia Code § 55-7B-8 caps noneconomic damages at $250,000 per occurrence, rising to $500,000 where the loss involves wrongful death, permanent and substantial physical deformity, loss of use of a limb or bodily organ system, or a permanent injury that prevents the person from independently caring for himself or herself. Both figures adjust for inflation, and no adjustment may exceed 150 percent of the base amounts. A child who will never live independently falls in the higher category.

A separate provision, § 55-7B-9c, places a tighter limit on total damages for good faith emergency care at a hospital designated as a trauma center, a defense worth anticipating early.

Which records and evidence decide these cases?

The fetal heart monitoring strips, nursing notes, delivery summary, cord blood gas results, Apgar scores, and neonatal MRI usually decide a birth injury case. Timing matters more than any single document: what the strip showed, when the physician was notified, and how long the response took.

The discharge summary carries less weight than the raw data behind it:

• Continuous fetal heart rate tracings with time stamps intact
• Nursing notes showing what was observed and who was notified
• Physician orders and the decision-to-incision interval
• Cord blood gas values and initial newborn laboratory results
• Apgar scores at one, five, and ten minutes
• Neonatal MRI and the radiologist’s interpretation

Late entries, gaps in the tracing, and notes charted hours after the fact deserve close attention. Requesting the electronic monitoring data early, rather than a printed summary, preserves the ability to answer the causation question.

How do West Virginia’s labor and delivery closures affect birth injury claims?

West Virginia has lost more than half its hospital obstetric units since 2005, leaving 16 hospitals delivering babies and only 14 of 55 counties with a birthing facility. Longer drives, transfers between hospitals, and emergency deliveries at facilities without a NICU create the conditions where things go wrong.

Greenbrier Valley Medical Center stopped delivering babies in 2026, and Mon Health Stonewall Jackson Memorial Hospital ended obstetric services the same year. WVU Medicine consolidated Jefferson Medical Center’s labor and delivery into Berkeley Medical Center in Martinsburg. Families now drive an average of 44 minutes to reach a delivery room, and some drive over an hour. A mother who arrives further along in labor, at a hospital with thinner staffing and no NICU down the hall, has less margin when something goes wrong.

Under West Virginia Code § 56-1-1, a claim is filed in the circuit court of a county where a defendant resides or where the cause of action arose, which in practice means the county of the hospital. Kanawha County Circuit Court hears cases from Charleston deliveries, Monongalia County from Morgantown, and Cabell County from Huntington.

Talk With a Charleston Birth Injury Attorney About Your Child’s Case

If your child was diagnosed with hypoxic-ischemic encephalopathy, cerebral palsy, or a brachial plexus injury after a difficult delivery, the most useful step is having the records reviewed while the deadline is still well ahead of you. A review that turns up nothing costs an afternoon. A review that turns up something can change what is possible for the next fifty years.

The attorneys at Powell & Majestro, P.L.L.C. handle complex, medically intensive litigation for families throughout West Virginia from our office on Capitol Street in Charleston. Call (304) 346-2889 or (800) 650-2889 to schedule a free, confidential consultation. There is no charge for that conversation and no obligation, and if we take the case, we walk you through the fee agreement and case costs in plain language before you sign anything.