HIE is a type of brain injury in newborns caused by a loss of oxygen and blood flow to the brain around the time of birth. According to a population-based study published in the Journal of Pediatrics, HIE occurs in approximately 1.7 out of every 1,000 live births in the United States. Not every case involves negligence. But when a delayed response to signs of fetal distress, a failure to perform an emergency C-section in time, or a failure to begin cooling treatment within the required window contributed to the injury, families in New York may have legal options. Porter Law Group represents New York families whose newborns suffered preventable HIE due to errors during labor, delivery, or the hours immediately following birth.
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HIE is a brain injury in newborns caused by a reduction in oxygen and blood flow to the brain at or around the time of birth. "Hypoxic" refers to insufficient oxygen. "Ischemic" refers to insufficient blood flow. When both happen at once, brain tissue can be damaged quickly. Most HIE cases trace back to events that occur during labor and delivery, the period doctors call "intrapartum," meaning happening during or in connection with childbirth.
HIE begins when something cuts off or severely reduces the oxygen supply to a baby's brain. This can happen suddenly, as in the case of a prolapsed umbilical cord (when the cord drops through the cervix ahead of the baby), or it can develop over time when warning signs on a fetal heart monitor go unrecognized or unaddressed. Common events that can trigger HIE include placental abruption (when the placenta separates from the uterine wall before delivery), uterine rupture, severely low maternal blood pressure, and prolonged or mismanaged deliveries involving complications like shoulder dystocia or breech positioning.
The brain injury does not always happen in a single moment. In many cases, an initial injury is followed by a second wave of cell damage over the hours that follow, which is exactly why the timing of treatment is so critical.
Clinical teams assess HIE severity using the Sarnat staging system, which evaluates a newborn across six categories including level of consciousness, muscle tone, reflexes, and seizure activity. The staging result determines whether the baby is a candidate for therapeutic hypothermia (cooling treatment), which is the only proven treatment for moderate-to-severe HIE.
| Sarnat Stage | Severity | What It Looks Like | Therapeutic Hypothermia Eligibility |
| Stage 1 | Mild | Alert but irritable, normal tone, normal reflexes, no seizures | Generally not eligible under current AAP guidance |
| Stage 2 | Moderate | Lethargic, low muscle tone, weak reflexes, possible seizures | Eligible, cooling indicated |
| Stage 3 | Severe | Unresponsive, absent reflexes, prolonged seizures | Eligible, cooling indicated |
Per the American Academy of Pediatrics Clinical Report on Therapeutic Hypothermia, an infant who shows moderate or severe findings in at least three of the six Sarnat categories is generally considered a candidate for cooling.
HIE is the acute brain injury that occurs at or near the time of birth. Cerebral palsy is the long-term movement and developmental disability that can result from that injury. Not every baby with HIE develops cerebral palsy. Children with mild HIE or those who received timely cooling treatment often have better outcomes. Equally, not every child with cerebral palsy had HIE. Many CP cases arise from prematurity, infection, or events that happened earlier in the pregnancy and have no connection to what occurred in the delivery room. When a child's cerebral palsy does follow an HIE event, establishing that connection typically requires the birth records, fetal monitoring strips, brain imaging obtained in the first week of life, and an expert evaluation of the developmental outcome.
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HIE has a medical explanation, but it sometimes has a legal one too. The two questions are not the same. A baby can suffer HIE from causes that no one could have prevented, and a baby can also suffer HIE from causes that were entirely preventable. Whether a specific case involves malpractice depends on whether the clinical team's decisions and actions fell below the accepted standard of care at each stage: during labor, at delivery, and in the hours after birth.
In New York birth injury malpractice litigation, HIE liability generally falls into one of two categories.
Category 1: Failure to prevent the hypoxic-ischemic event. The most common malpractice pattern in HIE cases is a failure to recognize and respond to warning signs on a fetal heart rate monitor. Fetal monitoring runs continuously during labor, and the tracings it produces tell the clinical team whether the baby is tolerating the labor process safely. A Category III tracing, characterized by absent variability with recurrent late or variable decelerations or a sinusoidal pattern, requires immediate intervention under the ACOG Clinical Practice Guideline on Intrapartum Fetal Heart Rate Monitoring. When that response is delayed or does not happen, the baby may suffer a brain injury that a timely C-section or other intervention could have prevented.
Other recognized Category 1 malpractice patterns include:
A sentinel event is a sudden, serious complication during labor, such as cord prolapse or uterine rupture, that raises immediate concern about the baby's oxygen supply. Its presence in the birth record is often one of the first markers a medical expert looks for when evaluating whether HIE was preventable.
Category 2: Failure to begin cooling treatment within the required time window. Even when the obstetric care during labor was appropriate, a separate malpractice claim can arise if the hospital failed to recognize the baby as a candidate for cooling and initiate treatment in time. Per the AAP Clinical Report, every facility involved in deliveries is responsible for having a plan to promptly identify HIE and either begin cooling or arrange a transfer to a center that can. Failing to do that is a distinct and independent basis for liability, regardless of how the delivery itself went.
Therapeutic hypothermia, commonly called cooling treatment, is the only proven neuroprotective therapy for moderate-to-severe HIE. The AAP Clinical Report confirms that treatment must begin within 6 hours of birth to meaningfully reduce the risk of death or severe neurodevelopmental disability. The protocol involves lowering the baby's core body temperature to 33.5°C and holding it there for 72 hours, which slows the second wave of brain cell damage that follows the initial injury.
After the 6-hour window closes, the treatment is no longer effective. That narrow timeframe is what makes delays in recognizing HIE, even short ones, so consequential.
Yes, and this is a recognized independent basis for a malpractice claim in New York. A failure to draw cord blood gases on a depressed newborn, a failure to document Sarnat staging in the first hours of life, a failure to recognize that the baby met cooling criteria, or a failure to begin cooling or arrange an appropriate transfer in time can each serve as a basis for a separate claim, even if the labor and delivery itself was handled without error.
Passive cooling refers to keeping the baby's temperature slightly below normal body temperature by removing warming blankets and limiting heat sources while transport to a cooling-capable facility is arranged. It is a temporary measure, not a substitute for full treatment, but it matters because the 6-hour clock starts at birth, not at arrival at the receiving hospital. Any delay in recognizing the situation, calling for transport, or beginning passive cooling can eliminate the treatment window.
Whether your child's HIE involved malpractice cannot be determined without a formal review of the medical records by a qualified expert. No attorney can answer that question before seeing the records.
The documents that matter most in an HIE malpractice evaluation are the full fetal heart monitoring strips from labor, the umbilical cord blood gas results, Apgar scores at 1, 5, and 10 minutes, the neonatal examination with Sarnat staging, NICU records documenting whether cooling was considered and initiated, and brain MRI obtained between days 4 and 7 of life. The MRI obtained in that specific window is particularly important because it can often distinguish a brain injury that occurred during labor from one that developed earlier in the pregnancy, which is frequently the central dispute in these cases.
You are entitled to complete copies of your and your child's medical records under New York Public Health Law §18. Submit a written request to the hospital as soon as possible.
Before a medical malpractice lawsuit can be filed in New York, the attorney must file a certificate of merit under CPLR §3012-a. This is a signed statement from a qualified medical expert, obtained and reviewed before the case is filed, confirming that there is a reasonable basis for the malpractice claim. It is a threshold legal requirement, not a formality. It is also why the evaluation process at any credible HIE firm takes time. At Porter Law Group, we retain maternal-fetal medicine specialists, neonatologists, pediatric neurologists, and neuroradiologists to review the records before any representation decision is made.
New York places no statutory cap on damages in medical malpractice cases, including birth injury cases. HIE cases that result in cerebral palsy, epilepsy, or significant cognitive disability are among the most substantial pediatric malpractice recoveries in the state, reflecting the genuine lifetime cost of care.
A life care plan is a document prepared by medical and economic experts that projects all of the treatment, therapy, equipment, and support a child will require over their lifetime. In catastrophic HIE cases, these plans must account for decades of physical therapy, occupational therapy, speech therapy, durable medical equipment, home and vehicle modifications, attendant care, skilled nursing, anti-epileptic medications, and any surgical procedures. The total figures in severe cases can be very substantial. They are built from current medical cost data and are specific to the child's condition, projected life expectancy, and geographic location.
Non-economic damages covering pain and suffering, loss of normal childhood and adult experience, and the permanent nature of the injury are not capped in New York. In severe HIE cases, these damages are often significant given the lifetime impact of a brain injury sustained in the first hours of life.
Parents can bring their own claim alongside their child's case. A derivative claim covers medical expenses paid on the child's behalf and damages for loss of the child's services. This claim carries its own statute of limitations under CPLR §214-a and is not tolled by the child's infancy. Parents have 2.5 years from the date of the malpractice to file, regardless of how old the child is at that point.
In most HIE cases involving a private hospital or physician, the child has until their 10th birthday to file a claim. However, the deadline depends heavily on where the baby was born. Families who delivered at a public hospital face a far shorter and unforgiving cutoff.
| Category | Deadline | Key Detail | Governing Law |
| Private hospital or private physician | Child's 10th birthday in most cases | 2.5-year statute tolled during the child's minority, but capped at 10 years from the malpractice | CPLR §214-a + CPLR §208 |
| Public hospital (NYC Health + Hospitals, SUNY Upstate, SUNY Downstate, Stony Brook, county hospitals) | 90 days from the date of the injury to file a Notice of Claim | The child's infancy does NOT extend this 90-day deadline | General Municipal Law §50-e |
| Wrongful death of an infant | 2 years from the date of death | Separate statute governs | EPTL §5-4.1 |
| Parents' derivative claim | 2.5 years from the date of malpractice | Not tolled by the child's infancy | CPLR §214-a |
The 90-day Notice of Claim deadline for public hospital births runs from the date of the injury, not from the date a family first understood that something went wrong. Many parents do not recognize the full severity of their child's brain injury until the child begins missing developmental milestones at 12 to 18 months. By that point, the 90-day window has almost always already closed. The only option at that stage is to ask a court for permission to file a late notice of claim under GML §50-e(5). That permission is discretionary, and it is never guaranteed.
New York's public hospital network is large. It includes NYC Health + Hospitals facilities across the five boroughs, SUNY Upstate Medical University Hospital in Syracuse, SUNY Downstate Medical Center in Brooklyn, Stony Brook University Hospital on Long Island, and county-operated medical centers throughout the state. If your baby was born at any of these facilities, contact an HIE attorney as soon as you have reason to believe something may have gone wrong, even if the full clinical picture is not yet clear.
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Step 1: Request the complete birth and NICU records. Under New York Public Health Law §18, you are entitled to your and your child's full medical records. Submit a written request to the hospital's medical records department. The records you need include the full fetal heart monitoring strips from labor, cord blood gas results, Apgar scores at 1, 5, and 10 minutes, the neonatal exam with Sarnat staging notes, NICU documentation on cooling decisions, and all imaging studies.
Step 2: Preserve all brain imaging. MRI of the brain obtained between days 4 and 7 of life is the most diagnostically significant imaging study in HIE cases. Request copies on disc and do not assume the hospital will retain them indefinitely.
Step 3: Find out if cooling was discussed or initiated. The medical record should reflect a documented decision point about therapeutic hypothermia: whether the baby was evaluated, whether they met the criteria, whether cooling was started, when target temperature was reached, and whether passive cooling was used during transport if the baby was transferred to another facility. If that documentation is absent or incomplete, it may itself be significant.
Step 4: Keep a developmental record. Start a dated log of every pediatric, neurology, developmental pediatrics, physical therapy, occupational therapy, and speech therapy appointment from this point forward. Document the milestones your child reaches and those they have not. The trajectory of a child's development is core evidence of how severely and permanently the injury has affected them.
Step 5: Act immediately if your baby was born at a public hospital. The 90-day Notice of Claim deadline is strict and real. Do not wait to see how things develop clinically before consulting an attorney.Step 6: Talk to an HIE attorney. Porter Law Group handles every stage of an HIE case, from obtaining and reviewing the medical records, through expert consultation and case filing, to litigation and trial. Every settlement involving a minor also requires judicial approval at an infant compromise hearing, which our team manages on your behalf. There is no fee unless we recover compensation for you.
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HIE cases are medically and legally complex in ways that most malpractice cases are not. Building a viable claim requires lawyers who understand fetal heart rate monitoring, cord blood gas interpretation, Sarnat staging, and the clinical sequence of a cooling-eligible newborn, because that is exactly where the defense will focus its argument. Michael S. Porter, founder and managing partner of Porter Law Group, describes how his team approaches these cases:
"HIE cases are won on three documents: the fetal heart tracing, the cord blood gas, and the neonatal Sarnat exam. If those records show a Category III fetal heart pattern that went unaddressed, a cord pH below 7.0 with a base deficit of 12 or higher, and a baby who met cooling criteria but never got cooled within the 6-hour window, the case is very strong. The defense will argue the injury occurred before labor, but the records usually tell us exactly when the brain injury happened."
What that means in plain terms: the fetal heart tracing shows how the baby was tolerating labor; the cord blood gas measures the acid level in the baby's blood, which rises when oxygen is cut off; the Sarnat exam documents the baby's neurological status in the hours after delivery. Together, those three records establish the timeline of what happened and what the clinical team knew, or should have known, at each point.
Porter Law Group retains maternal-fetal medicine specialists, neonatologists, pediatric neurologists, neuroradiologists, and life care planners to build the medical and economic foundation of each case. Seven of eight partner-level attorneys are recognized by Super Lawyers, a distinction reached by fewer than 5% of New York attorneys.
Porter Law Group has recovered more than $500 million for seriously injured clients since 2009. Our birth injury results include multiple settlements exceeding $8 million for children with permanent disabilities.
$8,300,000 Settlement: A premature infant suffered profound and permanent disabilities, including cerebral palsy, after physicians failed to properly manage the mother's pre-gestational diabetes during pregnancy. The structured settlement funds the child's lifetime care and therapy needs. Read the full story of this recovery.
$8,250,000 Settlement: An infant suffered permanent physical and cognitive disabilities after the clinical team failed to respond to signs of fetal distress during labor in time to prevent the hypoxic-ischemic injury.
$8,120,000 Settlement: An infant suffered permanent delivery-related injuries caused by mismanaged labor and delivery. The recovery funded a life care plan developed alongside the family's own medical team.
$6,700,000 Settlement: An infant suffered permanent injuries after physicians failed to diagnose and treat a condition in a timely manner.
Every case is different. Past results do not guarantee future outcomes.
Whether your child's HIE involved malpractice can only be determined after a formal review of the birth records by a qualified medical expert. Under CPLR §3012-a, a New York HIE lawsuit cannot be filed without a certificate of merit, which is a signed statement from a physician expert confirming there is a reasonable basis for the claim before the case is ever filed. The review typically focuses on the fetal heart monitoring strips, cord blood gas results, Apgar scores, neonatal Sarnat exam, NICU documentation, and brain MRI. Two malpractice categories can apply: failure to prevent the hypoxic event by responding to warning signs during labor, and failure to identify the baby and begin cooling within the 6-hour window. Both require expert analysis.
Therapeutic hypothermia is the only proven treatment for reducing long-term injury from moderate-to-severe HIE. The protocol, confirmed in the AAP Clinical Report, is to cool the baby to a body temperature of 33.5°C within 6 hours of birth and continue for 72 hours. Eligibility generally requires gestational age of 36 weeks or more, evidence of an acute event around the time of delivery, biochemical evidence of oxygen deprivation (typically a cord pH below 7.0 or a base deficit of 12 millimoles per liter, meaning elevated acid levels in the blood), and clinical evidence of moderate-to-severe encephalopathy on the Sarnat exam. If your baby met those criteria but cooling was not started within 6 hours, that failure may form the basis of a separate malpractice claim.
HIE is the acute brain injury that occurs at or near birth when oxygen and blood flow to the brain are cut off. Cerebral palsy is the chronic, lifelong motor and developmental disability that can result from that injury. Not every baby with HIE goes on to develop cerebral palsy, particularly those with mild HIE or those who received timely treatment. Many children with cerebral palsy did not have HIE. When CP follows an HIE event, the connection is typically established through birth records, imaging, and developmental outcomes evaluated against clinical criteria developed by the ACOG/AAP Task Force on Neonatal Encephalopathy.
Most HIE cases fall under the medical malpractice statute of limitations in CPLR §214-a, which sets a 2.5-year deadline. For a child's claim, CPLR §208 pauses that deadline during the child's minority but caps the pause at 10 years from the date of the malpractice. In practice, this means most HIE claims must be filed before the child's 10th birthday. Cases involving public hospitals require a Notice of Claim within 90 days of the injury under General Municipal Law §50-e, and the child's infancy does not extend that 90-day period. Parents' derivative claims carry their own 2.5-year deadline that runs from the date of the malpractice and is not paused regardless of the child's age.
Settlement and verdict values in HIE cases vary significantly based on the severity and permanence of the resulting disability, the strength of the malpractice evidence, and the total projected cost of lifetime care. Cases involving catastrophic outcomes, particularly those in which HIE progresses to cerebral palsy or significant cognitive impairment, tend to produce the largest recoveries because the lifetime medical costs alone can be very substantial. New York places no cap on damages in medical malpractice cases. Every settlement of a minor's claim must be approved at an infant compromise hearing under CPLR §1207, and attorney fees in New York follow a sliding scale under 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 above $1,250,000.
A normal 5-minute Apgar score makes intrapartum hypoxia-ischemia a less likely primary cause of any subsequent encephalopathy, but it does not rule it out. Per the ACOG/AAP Task Force on Neonatal Encephalopathy, the Apgar score is a general indicator of newborn condition rather than a definitive diagnostic tool. Cord blood gas analysis, the Sarnat exam, EEG monitoring, and brain MRI obtained between days 4 and 7 of life are far more diagnostically useful. A baby with a normal Apgar but a cord pH below 7.0 and clinical signs of moderate-to-severe encephalopathy may still meet HIE criteria and may still have qualified for cooling treatment.
The 6-hour cooling window starts at birth, not at arrival at the receiving hospital. Many babies with HIE are born at facilities that do not have full cooling capability and need to be transferred to a regional center. Per the 2026 AAP Clinical Report, the hospital where the baby was born is responsible for recognizing HIE eligibility, beginning passive cooling (removing warming blankets and limiting heat sources to keep the baby slightly cooler than normal while transport is arranged), and facilitating a prompt transfer. Any delay in recognizing the condition, calling for transport, or initiating passive cooling can cost the baby the treatment window. A failure by the originating hospital to take those steps is a recognized basis for a malpractice claim, independent of what occurred during labor.
Yes, and the difference is significant. Births at New York public hospitals, including NYC Health + Hospitals facilities, SUNY Upstate Medical University Hospital in Syracuse, SUNY Downstate Medical Center in Brooklyn, Stony Brook University Hospital on Long Island, and county-operated medical centers throughout the state, are subject to the 90-day Notice of Claim requirement under General Municipal Law §50-e. The child's infancy does not extend this deadline. Families who delivered at a public hospital should consult an HIE attorney as soon as they have reason to suspect negligence, even if the long-term outcome is still developing, to protect their right to file a claim.
Michael S. Porter is the founder and managing partner of Porter Law Group, representing New York families in umbilical cord-related, 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 newborn was diagnosed with HIE in New York and you believe that something during labor, delivery, or the hours that followed may have contributed to the injury, the time to act is now. Cases involving public hospitals require a Notice of Claim within 90 days of the injury. Parents' derivative claims are not tolled by the child's infancy. And the 10-year cap under CPLR §208 means most birth injury windows close long before a child reaches their teenage years.
Porter Law Group offers free, no-obligation consultations. We handle every stage of the case from initial record collection through expert review, litigation, and trial. There is no fee unless we recover compensation for you. Call (833) PORTER-9 or contact us online.
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