New York birth injury cases involving failure to act during labor must be commenced within two years and six months under CPLR §214-a, tolled during the child's minority but capped at 10 years for medical malpractice under CPLR §208 meaning most cases must be filed before the child's 10th birthday. Every settlement involving a minor requires judicial approval at an infant compromise hearing under CPLR §1207 and §1208, and attorney fees follow the sliding scale in Judiciary Law §474-a. Public-hospital cases require a 90-day Notice of Claim under GML §50-e, and the infancy toll does not extend that 90-day deadline. "Failure to act" cases — where the obstetric team failed to recognize fetal distress, abnormal labor progression, or maternal complications, or recognized them but failed to intervene in time are among the most common birth injury malpractice mechanisms because the standards of care are well-established and the failures are documented in the labor records. Porter Law Group represents New York families whose children suffered preventable injury when the obstetric team should have acted and did not.
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Failure to act cases are won in the labor record. Did the team interpret the fetal heart rate tracing per the 2025 ACOG Clinical Practice Guideline on Intrapartum Fetal Heart Rate Monitoring? Did they implement intrauterine resuscitation when Category II tracings appeared? Did they expedite delivery when Category III tracings were not responsive to resuscitation? Was the cesarean decision made when indicated, and was the decision-to-incision interval reasonable for the clinical urgency? Each of these is documented in the labor record, the fetal heart rate strip, the operative note, and the anesthesia record. Porter Law Group has recovered more than $500 million for seriously injured clients since 2009, including multiple pediatric recoveries exceeding $8 million for children with permanent labor-and-delivery-related disabilities.
Led by Harvard-educated attorney Michael S. Porter, a former U.S. Army JAG Corps Captain with over 20 years of trial experience, the firm retains maternal-fetal medicine specialists, neonatologists, pediatric neurologists, neuroradiologists, placental pathologists, and life care planners on every case. Seven of eight partner-level attorneys are recognized by Super Lawyers, a distinction earned by fewer than 5% of New York attorneys. For more on the procedural framework that governs these cases, see Porter's published article on the Certificate of Merit and Expert Testimony in NY Medical Malpractice and our Birth Injury Medical Malpractice practice page.
"Failure to act cases are documented in the labor record. The fetal heart rate tracing tells the story minute by minute. When the chart shows a Category III tracing for thirty minutes without intrauterine resuscitation, or shows the cesarean decision made and then a forty-minute delay before incision when the clinical urgency required faster action, the case is generally strong. The chart almost always shows where the team should have acted and didn't."
— Michael S. Porter, J.D., Porter Law Group
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"Failure to act during labor" is a legal characterization of a specific category of medical malpractice claim. The plaintiff alleges that the obstetric team, physicians, midwives, labor-and-delivery nurses, or hospital staff either failed to recognize a developing problem during labor, or recognized the problem but failed to intervene in a timely or appropriate manner.
The legal claim follows the four-element NY medical malpractice framework:
| Element | What Plaintiff Must Prove in a Failure-to-Act Case |
| Duty | The provider had a doctor-patient or hospital-patient relationship with the laboring mother and the fetus |
| Breach (deviation from standard of care) | The team failed to monitor, recognize, or respond to a documented obstetric concern in the manner required by accepted standards (typically established by reference to the 2025 ACOG Clinical Practice Guideline on Intrapartum FHR Monitoring, the AAP/ACOG Guidelines for Perinatal Care (8th edition), and peer-reviewed obstetric literature) |
| Causation | The failure was a substantial factor in causing the child's injury (NY's substantial factor causation standard) |
| Damages | Documented physical, cognitive, sensory, or developmental injury flowing from the failure |
The expert testimony required for each element comes from board-certified specialists typically maternal-fetal medicine, obstetrics-gynecology, neonatology, pediatric neurology, neuroradiology, and placental pathology who can testify that the team's documented conduct departed from accepted standards and that the departure substantially caused the child's injury.
Six recurring failure patterns establish liability in failure-to-act cases:
Failure 1 — Failure to recognize and respond to abnormal fetal heart rate (FHR) tracings. Per the 2025 ACOG Clinical Practice Guideline on Intrapartum Fetal Heart Rate Monitoring, FHR tracings are categorized in a three-tier system:
| FHR Category | Interpretation | Required Action per ACOG |
| Category I | Normal — strongly predictive of normal acid-base status | Routine intrapartum care |
| Category II | Indeterminate — not predictive of abnormal acid-base status, but requires evaluation, surveillance, and possible intervention | Initial intrauterine resuscitation: maternal position changes, amnioinfusion, IV fluid bolus, reduction or cessation of augmentation/induction agents, correction of maternal pathophysiology |
| Category III | Abnormal — predictive of abnormal fetal acid-base status; requires prompt evaluation | Expedited delivery if not responsive to initial intrauterine resuscitation |
A documented Category II tracing without any intrauterine resuscitation, or a Category III tracing without expedited delivery despite failed resuscitation, is the most common single failure pattern in HIE and oxygen deprivation malpractice litigation.
Failure 2 — Delayed cesarean decision when indicated. The decision to perform a cesarean for non-reassuring fetal status must be made in real time. When the chart shows a Category III tracing persisting for an extended period without a cesarean decision, or shows a cesarean decision delayed by hours after expedited delivery was indicated, the case for malpractice is generally strong. The clinical urgency standard — historically expressed as a "30-minute rule" but revised in the 2017 AAP/ACOG Guidelines for Perinatal Care, 8th edition now provides that "the decision-to-incision interval should be based on the timing that best incorporates maternal and fetal risks and benefits," with hospitals expected to have the capability of beginning emergency cesarean within 30 minutes when indicated. The 8th edition revision reflects current evidence that a strict 30-minute threshold is not supported by outcome data, but the principle that emergency cesarean must be rapidly available remains the standard.
Failure 3 — Failure to recognize abnormal labor progression. Prolonged labor, particularly prolonged second stage or arrest of descent is associated with increased risk of fetal acidosis, shoulder dystocia, and operative vaginal delivery complications. Failure to recognize abnormal labor progression and to consider operative or surgical delivery when indicated is a recognized basis for malpractice when the resulting injury is consistent with the prolonged labor.
Failure 4 — Failure to recognize and treat maternal complications affecting the fetus. Maternal hypotension, fever, infection (chorioamnionitis),preeclampsia, placental abruption, and uterine rupture all require prompt recognition and treatment. Failure to recognize these conditions or to treat them in accordance with the relevant ACOG guidance is a recognized basis for malpractice when the resulting fetal injury is consistent with the maternal condition.
Failure 5 — Failure to administer recommended interventions for the at-risk fetus. Per ACOG Committee Opinion No. 455: Magnesium Sulfate Before Anticipated Preterm Birth for Neuroprotection (March 2010, Obstetrics & Gynecology 115:669-671), magnesium sulfate should be considered for fetal neuroprotection in patients at imminent risk of preterm delivery. Per ACOG Committee Opinion No. 713: Antenatal Corticosteroid Therapy for Fetal Maturation (August 2017, Obstetrics & Gynecology 130:e102-e109), antenatal corticosteroids are recommended for women between 24 0/7 weeks and 33 6/7 weeks gestational age at risk of preterm delivery within 7 days. Failure to offer these interventions when indicated is a recognized basis for malpractice when the resulting preterm infant develops periventricular leukomalacia or other preterm brain injury.
Failure 6 — Inadequate communication and handoff failures. Birth injury claims frequently involve documented communication failures between the labor nurse and the attending obstetrician, between the resident and the attending, between the obstetric team and anesthesia, or between shifts at change of duty. When the chart shows a concerning fetal heart rate tracing communicated to a nurse who did not escalate to the attending, or shows a shift change without adequate handoff of an actively concerning labor, the resulting injury may be actionable on a communication-failure theory. Structured handoff communication is widely recognized in obstetric safety literature as a standard for high-acuity care transitions, and documented departures from structured handoff practice can support liability when paired with a substantively missed clinical concern.
The continuous fetal heart rate (FHR) tracing is the central piece of evidence in most failure-to-act cases. Per the 2025 ACOG Clinical Practice Guideline and consistent peer-reviewed obstetric literature including the 2024 PMC peer-reviewed review (PMC11019468), the tracing is interpreted across five parameters:
The five parameters are evaluated together to assign the FHR tracing to Category I, II, or III. A Category III tracing — defined per the 2025 ACOG Clinical Practice Guideline as showing absent baseline FHR variability and any of recurrent late decelerations, recurrent variable decelerations, bradycardia, or sinusoidal pattern — is predictive of abnormal fetal acid-base status and requires prompt evaluation and expedited delivery if not responsive to initial intrauterine resuscitation.
The peer-reviewed literature is candid about the interpretive complexity. Per the 2024 PMC review (PMC11019468), "the misinterpretation of CTG findings is the most common cause of medical-legal responsibility" in obstetric practice. This is precisely why failure-to-act cases turn on the documented response to the tracing rather than on the existence of the tracing itself.
New York places no statutory cap on damages in medical malpractice cases. The pending NY S1608 (2025-2026) Borrello-sponsored bill proposing a $250,000 cap on noneconomic damages remains pending before the Senate Judiciary Committee and has not been enacted. Recoverable damages depend on the resulting injury:
Future medical and custodial care is the largest category in catastrophic cases. Children with permanent neurologic injury from failure-to-act most commonly HIE leading to cerebral palsy, typically require lifelong physical, occupational, and speech therapy, durable medical equipment, surgical interventions, special education support, and assistance with activities of daily living. The CDC estimates the lifetime cost of care for an individual with cerebral palsy at approximately $1 million in 2003 dollars, with medical care costs running roughly 10 times higher than for children without CP. Adjusted for current medical inflation, life care plans in catastrophic failure-to-act cases routinely run to seven and eight figures.
Lost future earning capacity. A child with permanent cognitive, motor, sensory, or developmental impairment can recover the full projected lifetime earnings of a comparable uninjured peer.
Pain and suffering damages are not capped in New York. Juries consider the permanence of the injury, the child's life expectancy, and the loss of normal childhood, adolescent, and adult experiences.
Wrongful death. When the failure to act results in stillbirth or neonatal death, parents may pursue a wrongful death claim under EPTL §5-4.1 within two years of the death.
Parents' derivative claim. Parents can recover medical expenses they paid on the child's behalf and damages for loss of the child's services but under their own 2.5-year CPLR §214-a statute, which is not tolled by the child's infancy.
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Porter Law Group's published catastrophic case results include three pediatric birth injury settlements that demonstrate the firm's track record in complex delivery-related injury cases. View all case results →
$8,300,000 Settlement: A premature infant suffered profound permanent disabilities, including cerebral palsy, after physicians failed to properly manage the mother's pre-gestational diabetes. The structured settlement provides lifetime care and therapy funding.
$8,250,000 Settlement: An infant sustained permanent physical and cognitive disabilities after delayed response to fetal distress during labor — a classic failure-to-act fact pattern. Proceeds covered lifetime medical and educational needs.
$8,120,000 Settlement: An infant suffered permanent delivery-related injuries caused by mismanaged labor and delivery. The recovery funded a life-care plan built with the family's physicians and therapists.
Every case is different. Past results do not guarantee future outcomes.
| Category of Defendant | Statute of Limitations | Infancy Toll | Effective Deadline | Primary Statute |
| Private hospital / private physician | 2.5 years | Yes — but capped at 10 years from malpractice | Child's 10th birthday in most cases | CPLR §214-a + CPLR §208 |
| Public hospital (NYC Health + Hospitals, SUNY Upstate, SUNY Downstate, Stony Brook, county hospitals) | 1 year and 90 days after Notice of Claim | No — 90-day Notice of Claim NOT tolled by infancy | 90 days from injury to file Notice of Claim | GML §50-e |
| Wrongful death of infant | 2 years from date of death | N/A | 2 years from death | EPTL §5-4.1 |
| Parents' derivative claim | 2.5 years | No — not tolled by child's infancy | 2.5 years from malpractice | CPLR §214-a |
| Continuous treatment | 2.5 years from last treatment for same condition | Yes — 10-year cap still applies | Last treatment date + 2.5 years (subject to cap) | CPLR §214-a |
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Did Medical Staff Fail to Act During Labor in New York?
Find out whether oxygen deprivation, delayed delivery, or delayed cooling treatment may have contributed to your child’s hypoxic-ischemic encephalopathy.
1. Request the complete labor-and-delivery records — including the entire continuous FHR tracing. Under Public Health Law §18, you are entitled to your and your child's complete medical records within a reasonable time of a written request. The fetal heart rate tracing is the single most important document in a failure-to-act case request the complete continuous tracing, not selected portions.
2. Request the labor nursing flowsheet separately. The nursing flowsheet often contains real-time documentation of vital signs, contraction patterns, FHR observations, and communications with the attending physician that does not appear in the physician's note.
3. Preserve all imaging and pathology. Brain MRI between days 4 and 7 of life is the critical study for distinguishing acute intrapartum hypoxic injury from chronic antepartum injury. Cranial ultrasound, CT, placental pathology, and umbilical cord blood gas results should all be preserved indefinitely.
4. Document the timeline of events. Reconstruct the timeline from the records: when did the FHR tracing first show concerning features; when was intrauterine resuscitation initiated; when was the cesarean decision made; when did incision occur; when was the baby delivered; what were the cord blood gas values; what were the Apgar scores at 1, 5, and 10 minutes. The timeline is the central evidence.
5. Document developmental milestones. Keep a dated log of every pediatric, neurology, developmental pediatrics, therapy, and specialist visit. Missed milestones are core evidence of injury severity.
6. Act immediately if your child was born at a public hospital. The 90-day Notice of Claim deadline under GML §50-e is unforgiving and is NOT tolled by the child's infancy.
7. Consult a New York birth injury medical malpractice attorney promptly. Porter Law Group offers free consultations on a contingency-fee basis and handles every stage of the case.
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Porter Law Group represents families in failure-to-act and related birth injury malpractice cases throughout New York State, with a statewide practice reaching every county and jurisdiction. Our Syracuse headquarters serves Central and Upstate New York, while attorneys travel regularly to downstate courthouses for cases in the five boroughs, Westchester, and Long Island.
Serving Clients statewide, including HIE Attorney in Syracuse, New York City, Manhattan, Buffalo, Rochester, Albany, Yonkers, White Plains, Utica, Binghamton, Long Island (Nassau and Suffolk Counties), Saratoga Springs, Ithaca.
Wherever your child was injured in New York, call (833) PORTER-9 for a free consultation with an experienced HIE attorney.
"Failure to act during labor" is a category of medical malpractice claim in which the obstetric team either failed to recognize a developing problem during labor, or recognized the problem but failed to intervene appropriately in time to prevent injury. The legal claim follows New York's traditional four-element medical malpractice framework: duty, breach (deviation from accepted standards of care), causation (the failure was a substantial factor in producing the injury per New York's substantial factor causation standard), and damages. The "accepted standards of care" for labor management come from the 2025 ACOG Clinical Practice Guideline on Intrapartum FHR Monitoring, the AAP/ACOG Guidelines for Perinatal Care (8th edition), and peer-reviewed obstetric literature. Failure-to-act cases are among the most common birth injury malpractice mechanisms because the standards are well-established and the failures are documented in the labor record.
Per the 2025 ACOG Clinical Practice Guideline on Intrapartum FHR Monitoring, fetal heart rate tracings are classified into three categories: Category I (normal) strongly predictive of normal fetal acid-base status; routine intrapartum care is appropriate. Category II (indeterminate) not predictive of abnormal fetal acid-base status, but requires evaluation, surveillance, and possible intervention; ACOG recommends initial intrauterine resuscitation measures including maternal position changes, amnioinfusion, IV fluid bolus, reduction or cessation of augmentation/induction agents, or correction of maternal pathophysiology. Category III (abnormal) predictive of abnormal fetal acid-base status; ACOG recommends expedited delivery if the tracing is not responsive to initial intrauterine resuscitation. A documented Category III tracing without expedited delivery despite failed resuscitation is the most common single failure pattern in HIE malpractice cases.
Historically, the consensus was that hospitals should have the capability of beginning an emergency cesarean delivery within 30 minutes of the decision to operate — a standard codified in older editions of the ACOG Standards for Obstetric Services and the AAP/ACOG Guidelines for Perinatal Care. The current 8th edition of the Guidelines for Perinatal Care (2017) has revised this standard to acknowledge that "the scientific evidence to support this threshold is lacking" and that "the decision-to-incision interval should be based on the timing that best incorporates maternal and fetal risks and benefits," with reasonable tailoring to local circumstances and logistics. The principle that emergency cesarean must be rapidly available remains the standard. Substantial decision-to-incision delays — particularly when paired with documented Category III tracings, persistent fetal bradycardia, or other indications of fetal compromise that warranted expedited delivery — are commonly examined in failure-to-act malpractice analysis. The strict "30-minute rule" is no longer the canonical fixed threshold under current ACOG/AAP guidance, but the underlying principle that the decision-to-incision interval must be calibrated to the clinical urgency continues to govern the standard of care.
Intrauterine resuscitation refers to a set of interventions designed to improve fetal oxygenation when the FHR tracing becomes concerning (typically Category II), without yet proceeding to delivery. Per the 2025 ACOG Clinical Practice Guideline on Intrapartum FHR Monitoring, the initial intrauterine resuscitation measures include: maternal position changes (typically lateral decubitus), amnioinfusion (instillation of saline into the uterine cavity to relieve cord compression), IV fluid bolus (to address maternal hypotension), reduction or cessation of oxytocin or other labor augmentation/induction agents, and correction of maternal pathophysiology thought to be associated with the tracing changes. Notably, the 2025 ACOG Clinical Practice Guideline recommends against routine maternal oxygen administration for Category II or III tracings in the absence of maternal hypoxia — a meaningful change from prior practice. Failure to attempt these recognized resuscitation measures before declaring fetal status "non-reassuring" can be a basis for malpractice when the failure to attempt resuscitation contributed to the injury.
Failure-to-act birth injury claims are medical malpractice actions under CPLR §214-a, which imposes a 2.5-year statute of limitations. CPLR §208 tolls the deadline during the child's minority but caps the toll at 10 years from the malpractice — meaning most cases must be filed before the child's 10th birthday. Deliveries at public hospitals (NYC Health + Hospitals, SUNY Upstate, SUNY Downstate) require a Notice of Claim within 90 days of the injury under General Municipal Law §50-e, and the infancy toll does not extend the 90-day deadline. Parents' separate derivative claims follow their own 2.5-year statute and are not tolled by the child's infancy. Wrongful death claims for stillbirth or neonatal death follow a separate 2-year deadline under EPTL §5-4.1.
Failure-to-act settlement values vary based on the severity and permanence of the resulting injury. Cases involving full recovery resolve at modest values; moderate permanent injuries typically settle in the high six to low seven figures; catastrophic permanent injuries HIE, cerebral palsy, severe brain damage, wrongful death routinely settle in the seven to eight figures. The CDC estimates the lifetime cost of care for an individual with cerebral palsy at approximately $1 million in 2003 dollars, with medical costs running roughly 10 times higher than for children without CP meaning catastrophic case projections frequently exceed $10 million in 2026 dollars. New York places no statutory cap on damages in medical malpractice cases. Every settlement of a minor's claim must be approved by a judge at an infant compromise hearing under CPLR §1207, and attorney fees follow the sliding scale in Judiciary Law §474-a: 30% of the first $250,000, 25% of the next $250,000, 20% of the next $500,000, 15% of the next $250,000, and 10% of any amount over $1,250,000.
The continuous fetal heart rate (FHR) tracing is the central piece of evidence in most failure-to-act cases because it provides minute-by-minute documentation of fetal status throughout labor. The tracing is interpreted across five parameters — baseline rate, variability, accelerations, decelerations, and contraction pattern — to assign each segment to one of three categories per the 2025 ACOG Clinical Practice Guideline. Per a 2024 peer-reviewed PMC review (PMC11019468), "the misinterpretation of CTG findings is the most common cause of medical-legal responsibility" in obstetric practice. The tracing creates an objective, contemporaneous record that allows expert reviewers to determine when a problem was apparent, what the team did about it, and whether the response met the accepted standard. In failure-to-act litigation, the documented response to the tracing not the existence of the tracing itself is typically the central question.
Many failure-to-act injuries are not recognized until the developmental sequelae become apparent — sometimes months or years after birth. Hypoxic-ischemic encephalopathy (HIE) may not be definitively diagnosed until the child develops cerebral palsy at 12 to 18 months. Cognitive sequelae of mild HIE may not be apparent until school age. From a malpractice perspective, the discovery of the injury does not extend the New York statute of limitations under CPLR §214-a the clock generally runs from the date of the negligent act, not the date of diagnosis. This makes prompt consultation with a New York birth injury attorney critical when developmental sequelae become apparent, particularly in public-hospital cases where the 90-day Notice of Claim window may have already closed and a motion for leave to serve a late notice of claim under GML §50-e(5) may be required.
Michael S. Porter is the founder and managing partner of Porter Law Group, representing New York families in failure-to-act, birth injury, medical malpractice, and catastrophic injury cases. A graduate of Harvard University (B.A., 1994) and Syracuse University College of Law (J.D., 1997), Porter served four years as a Captain in the U.S. Army Judge Advocate General's Corps. Selected to Super Lawyers for 14 consecutive years (2012–2025), he holds a 10.0 Superb rating on Avvo and a Distinguished rating from Martindale-Hubbell.
Bar Admissions: New York State Bar | U.S. District Court, Northern and Western Districts of New York
Memberships: New York State Bar Association, Onondaga County Bar Association, New York State Academy of Trial Lawyers, Multi-Million Dollar Advocates Forum
If your child suffered a birth injury in New York due to medical negligence during labor, critical deadlines may run faster than you expect: public-hospital cases require a Notice of Claim within 90 days, parents' derivative claims are not tolled by the child's infancy, and the 10-year cap under CPLR §208 closes most birth injury windows before a child's 10th birthday.
Contact Porter Law Group today at (833) PORTER-9 for a free, no-obligation consultation. We operate on a contingency-fee basis, so you pay nothing unless you win.
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