by Needle & Ellenberg, P.A.
If your child suffered a birth injury in Florida caused by medical negligence, you may be entitled to compensation. Florida law also gives families more time to pursue these claims than almost any other kind of medical malpractice case, and may preserve claims on behalf of a minor up to the child’s 8th birthday.
Birth injury cases are a specialized area of medical negligence. The clinical issues span obstetrics, neonatology, and pediatric neurology. Because the adverse effects and injuries from a birth injury may not be apparent immediately, under certain circumstances the deadlines that apply to these cases may differ from those that apply to medical malpractice claims involving adults, but the statute of limitations remains as two years from the time that the parents knew or reasonably should have known of injury due to potential medical malpractice.
Both founding partners at Needle & Ellenberg, P.A. have handled Florida birth injury malpractice cases for decades. Our free case evaluations can give families a clear picture of which legal path may fit their situation.
Why Choose Needle & Ellenberg, P.A.
Founding partners Andrew Needle and Andrew Ellenberg bring more than 70 years of combined experience in Florida medical negligence and plaintiffs’ injury law. Both handle plaintiffs’ injury and death cases exclusively.
Practice Focus
Andrew Ellenberg focuses on plaintiffs’ injury and medical negligence cases, with practice concentrations that include obstetrical malpractice, brachial plexus and shoulder dystocia injuries, birth-related neurological injuries, and anesthesia complications. He earned his J.D. cum laude from the University of Miami School of Law in 1988. Martindale-Hubbell rates him AV Preeminent. Florida Super Lawyers has listed him every year since 2005, and The Best Lawyers in America has listed him every year since 2009 for plaintiffs’ medical malpractice and personal injury work.
Andrew Needle is Board Certified in Civil Trial Law by The Florida Bar. His practice concentrations include obstetrical malpractice, birth-related neurological injuries, and complex medical negligence cases that have tested the outer boundaries of existing Florida legal precedent. He holds a J.D. cum laude from the University of Miami School of Law (1977) and a B.S. from Cornell University (1974). He is a charter member of the Miami chapter of the American Board of Trial Advocates. Best Lawyers in America named him “Lawyer of the Year” for Medical Malpractice Law, Plaintiffs, in Miami for 2020 and 2025.
Verdicts and Settlements
Needle & Ellenberg, P.A. has recovered hundreds of millions of dollars for clients across all practice areas, including multiple eight-figure results in medical malpractice matters. Many of the healthcare cases involved birth injuries, delayed diagnosis, surgical errors, anesthesia complications, and health system negligence. Our fees are contingent. You pay nothing unless we recover compensation for you.
What Our Clients Say
⭐⭐⭐⭐⭐
“Needle and Ellenberg has an excellent team. Our family experienced patience and care as we charted through a long process. The success of our project supports our heartfelt thanks for everything to Andrew Needle and Team.”
– Phoenix Star
Types of Birth Injury Cases We Handle in Florida
The CDC identifies cerebral palsy as the most common motor disability in childhood, with about 1 in 345 U.S. children diagnosed, and birth-related complications can account for a meaningful share of cases. Failure to diagnose and delayed response to obstetric complications are among the most common allegations in this category.
- Hypoxic-ischemic encephalopathy and cerebral palsy. When a baby is deprived of oxygen during labor or delivery, the resulting brain injury can produce cerebral palsy and lifelong disabilities. Electronic fetal monitoring is one of the “early warning” systems to help healthcare providers know that the baby is doing well during labor and delivery. In HIE claims there is frequently an issue of whether the hospital and healthcare providers failed to recognize and/or timely respond to changes in the fetal heart rate that may or do reflect a baby in distress.
- Brachial plexus injuries from shoulder dystocia. These injuries are overwhelmingly the result of inappropriate traction on the baby’s head when its shoulder is behind the area of the mother’s pubic bone. There are well accepted maneuvers, including the McRoberts maneuver and suprapubic pressure, that should be used by the providers to address a shoulder dystocia. Fundal pressure should be avoided because it can further impact the shoulder. The delivering provider should always avoid traction on the fetal head during a shoulder dystocia. If the healthcare providers fail to do the maneuvers and/or do them incorrectly and/or improper traction is applied, the baby can suffer severe, permanent injury to the nerves that power and provide sensation to an arm. This is called a brachial plexus or Erb’s palsy.
- Neonatal resuscitation failures. When a newborn arrives in distress, the response window can be measured in seconds. Delayed intubation, inadequate ventilation, and failure to recognize early signs of sepsis or hypoglycemia can turn a recoverable event into permanent injury.
- Forceps and vacuum extraction injuries. Operative vaginal delivery instruments can cause skull fractures, intracranial bleeding, and nerve damage when they are misapplied or when the underlying clinical situation did not support their use.
- Failure to diagnose maternal conditions. Preeclampsia, gestational diabetes, placental insufficiency, and intrauterine growth restriction can all harm the baby if they are not recognized and managed prenatally. Missed diagnosis of these conditions can be a recurring theme in birth injury claims.
- Failure to perform a timely C-section. Many birth injury cases involve the timeliness of performing a C-section, or the failure to perform a C-section. The evidence typically involves fetal heart tracings, lab testing, placental pathology, provider notes, and the decision-to-incision interval measured against what a reasonably prudent obstetrician would have done.
- Physician discharge without review of fetal monitoring. In one documented Florida AHCA investigation at Baptist Hospital of Jacksonville, an obstetrician discharged a laboring patient by telephone without reviewing the electronic fetal monitoring tracings, despite the hospital’s remote access capability. The patient experienced a stillbirth. CMS cited the facility at the Immediate Jeopardy level, the most severe designation available, reflecting its determination that the practices represented an immediate and serious threat to patient health and safety.
Florida Legal Requirements for Birth Injury Malpractice
Birth injury cases in Florida are governed by the Florida medical malpractice laws that apply to all medical negligence actions, which includes proving a breach of the standard of care, causation, and damages.
Standard of Care
Florida law defines the standard of care as what a reasonably prudent health care provider would have done under the circumstances. The standard is specialty-specific. What is expected of a radiologist reading a scan is not what is expected of a primary care physician, and neither is what is expected of an emergency physician evaluating acute symptoms. That specialty framing matters when multiple providers across multiple encounters contributed to the injury.
In birth injury cases, the reasonableness of the actions of obstetricians, labor and delivery nurses, neonatologists, and NICU nurses can require the testimony of experts. As well, the evidence may involve guidelines or standards of professional bodies such as AWHONN, the American College of Obstetricians and Gynecologists (ACOG) and the American Academy of Pediatrics (AAP), as well as a hospital’s standards, policies, procedures and protocols for labor, delivery and neonatal care.
NICA: Florida’s No-Fault Program for Certain Birth Injuries
Florida operates a no-fault compensation program administered through the Florida Birth-Related Neurological Injury Compensation Association (“NICA”). The program is widely viewed by families whose children have suffered birth-related neurological injuries, and the lawyers who represent those families, as a deeply problematic system. Hospitals and doctors directly involved in the labor, delivery or resuscitation of a baby who has suffered a birth-related neurological injury often want these claims to be forced into NICA, as that program then becomes the exclusive remedy for the family. That can mean the family is stripped of the right to bring a traditional medical malpractice lawsuit in which they can seek full damages, and they are instead funneled into an administrative compensation system that frequently provides far less than what catastrophically injured children actually need over a lifetime.
NICA generally applies when there is an injury to the brain or spinal cord of a live infant, weighing at least 2,500 grams (or 2,000 grams for multiples), caused by oxygen deprivation or mechanical injury during labor, delivery, or immediate post-delivery resuscitation in a hospital, that renders the infant permanently and substantially mentally and physically impaired. As lawyers for families in this situation we look for, if possible and appropriate, ways to keep a case out of NICA. These may include failure to meet the criteria that would force a claim into NICA, or whether there may be evidence of bad faith, malicious purpose, or willful and wanton disregard of the mother and/or baby.
There are several scenarios where NICA may not apply. NICA does not cover genetic or congenital abnormalities, injuries to infants below the weight thresholds, injuries occurring outside the immediate birth period, or injuries that do not result in both mental and physical impairment. NICA also may not apply when the physician was not a NICA participant or when the hospital or physician failed to provide the statutorily required notice of NICA participation before delivery. Stillbirth is not a NICA claim because the program requires a live infant. A stillbirth caused by negligence may be a wrongful death case that may be pursued in court.
Whether a particular injury falls within NICA or proceeds as a tort claim is itself a legal determination, made by an administrative law judge in the Florida Division of Administrative Hearings. Families considering their options should have that determination made with the help of lawyers who are familiar with the intricacies of the system, as the decision about whom to hire can have a significant impact on the family’s long-term financial security.
Electronic Fetal Monitoring and the Chain of Command
The standard of care for intrapartum fetal monitoring requires continuous EFM for high-risk patients and regular documented assessment of tracings for lower-risk labors. When a concerning fetal heart rate pattern is identified, the standard generally requires nursing notification of the attending physician, escalating intervention up to and including emergency cesarean section, and documentation of the steps taken in response.
Nursing obligations can be equally specific. Nurses may be expected to document assessment of the fetal tracing at defined intervals, identify and communicate any deterioration to the responsible physician, and escalate through the chain of command if a physician’s response to a deteriorating pattern is inadequate. Chain-of-command failures in obstetric cases can be a frequent malpractice issue.
Why Every Difficult Birth Does Not Equal a Case
Not every bad outcome may be malpractice. Diagnoses can be missed or delayed by healthcare providers acting reasonably under the circumstances. For example, some cerebral palsy cases may have genetic or prenatal causes that are not linked to care during labor or delivery. As with all types of medical malpractice cases, Florida law requires the patient/claimant prove that the healthcare provider’s conduct fell below what a reasonably prudent provider would have done under the circumstances, and that the failure caused the injury.
Statute of Limitations and Presuit Notice
Florida imposes strict deadlines on medical malpractice claims, and missing the deadlines can result in a potentially viable case being barred from court. Our lawyers can help you determine whether your potential case is within Florida’s statute of limitations.
Before any medical malpractice lawsuit can be filed in court, Florida law requires that the Claimant send the potential defendant healthcare providers a Notice of Intent, after which there is a 90-day presuit screening period for the exchange of information between the parties. With rare exception, the Claimant’s attorney must include with the Notice of Intent a verified affidavit(s), from a qualified expert(s), who under oath says what were the actions and/or omissions of the potential defendant healthcare provider(s) that caused injury and damage to the Claimant.
What Damages Are Recoverable in Florida Birth Injury Cases?
Economic Damages
Economic damages can include the financial losses that were sustained and/or that reasonably will be suffered in the future, due to the malpractice. These can include lost wages, diminished earning capacity, past and future care, treatment, therapies and services. Economic damages in birth injury cases can often dwarf those in other medical malpractice claims because the injured child may require care for a lifetime. Past and future medical care, therapy, adaptive equipment, home modifications, special education services, in-home nursing, and diminished earning capacity all may fall within this category. Life care plans prepared by qualified professionals can be central to calculating these damages, and the numbers may run into the tens of millions in severe cases.
Non-Economic Damages
Non-economic damages include pain, suffering, mental anguish, loss of enjoyment of life, scarring and disfigurement since the time of the alleged malpractice and into the future. While there was once a limit on the amount that could be recovered for this category of damages, those caps were overruled by Florida’s highest court. Some healthcare providers claim that the caps on non-economic damages still apply to a certain category of claimants who receive health insurance through Medicaid, but this is regularly disputed by lawyers for victims of malpractice. Florida’s high court has not yet ruled on this issue.
Wrongful Death Damages
When a birth injury results in the death of a newborn or the mother, Florida’s wrongful death statute can control who can recover and what. Parents of a deceased child under the age of 25 may recover for mental pain and suffering. When a mother dies as a result of obstetric malpractice, her surviving spouse and children under the age of 25 may have their own claims under the Florida Wrongful Death Act.
Florida’s Wrongful Death Act contains a significant restriction that applies only to medical negligence cases. Under Florida’s wrongful death statute, children of the deceased who are not under 25, and parents of a child who is not under 25 and unmarried, cannot recover non-economic damages when the death was caused by medical malpractice. This law often referred to as Florida’s “Free Kill” law is a sad and unfortunate reality for people who have lost loved ones due to malpractice, but fall within a legal protection that exists only for healthcare providers.
Contact Needle & Ellenberg, P.A.
If you believe a Florida healthcare provider caused serious harm to you or a family member through a birth injury, the first step is a free case evaluation. Medical malpractice cases are fact-intensive and deadline-driven. Early review by experienced counsel makes a difference in what the records show and what the timeline preserves.
We offer free, no-obligation case evaluations. Our staff speaks Spanish, and we represent clients in Miami, Fort Lauderdale, Orlando, Tampa, and throughout Florida. Contact us to schedule your consultation. There is no fee unless we recover compensation for you.