When a vaginal birth after cesarean (VBAC) attempt doesn’t go as planned, the consequences can be devastating. Failed VBAC deliveries carry significant risks of birth injuries, particularly brain damage caused by oxygen deprivation during emergency complications like uterine rupture.
If your child suffered a brain injury during a failed VBAC delivery in New York, you may have grounds for a medical malpractice claim. Understanding the connection between failed VBAC attempts and brain injuries is crucial for families seeking answers and justice.
What Is a Failed VBAC and Why Does It Happen?
A failed VBAC occurs when a woman attempts a vaginal birth after a previous cesarean section (C-section) but ultimately requires an emergency C-section to deliver the baby. According to NCBI StatPearls, VBAC attempts have a success rate of 60-80%, meaning 20-40% of VBAC attempts fail and require emergency surgical intervention.
Among low-risk candidates specifically selected for VBAC, approximately 25% still experience failure (1 in 4 attempts). This high failure rate becomes particularly dangerous when emergency interventions are delayed or complications arise unexpectedly.
⚠️ Time-Critical Emergency: When uterine rupture or fetal distress occurs during a failed VBAC, brain damage can begin within 15-18 minutes without oxygen. After 30-35 minutes, fetal death becomes almost inevitable. Every second counts in these emergencies.
Common Causes of VBAC Failure
Research published in the National Library of Medicine identifies the most important causes of VBAC failure:
- Prolonged labor: The strongest predictor of VBAC failure (odds ratio = 4.70)
- Fetal heart rate decline: Indicating oxygen deprivation (odds ratio = 5.31)
- Complete arrest of labor: When labor progression stops entirely (odds ratio = 2.70)
- Uterine rupture: The most dangerous complication, occurring in 0.2-1.4% of VBAC attempts
- Cephalopelvic disproportion: When the baby is too large for the birth canal
- Macrosomia: Babies weighing over 4,000 grams (approximately 9 pounds)
Understanding VBAC: From Trial of Labor to Delivery
Before a VBAC can occur, women must undergo what’s called a Trial of Labor After Cesarean (TOLAC). This is the attempt to deliver vaginally after a previous C-section. Not all TOLACs result in successful vaginal births—some require conversion to emergency cesarean delivery.
VBAC Eligibility Requirements
According to medical guidelines, only 20-30% of women who have had C-sections qualify as low-risk candidates for VBAC. Eligibility criteria include:
| Eligibility Factor | Requirement |
|---|---|
| Type of prior incision | Low-transverse (“bikini cut”) only—NOT classical vertical |
| Number of prior C-sections | Maximum of 2 prior cesareans |
| Time since last C-section | At least 18-24 months for uterine healing |
| Current pregnancy | Single baby (not twins or multiples) |
| Baby’s position | Head-down (vertex) presentation |
| Estimated fetal weight | Less than 4,000 grams (avoid macrosomia) |
| Gestational age | Not exceeding 40 weeks significantly |
| Hospital capability | Emergency C-section available within 15-30 minutes |
đź’ˇ Key Insight: According to March of Dimes data, U.S. VBAC rates increased from 12.4% in 2016 to 13.3% in 2018, showing growing acceptance—but also increasing risk exposure if proper protocols aren’t followed.
The Connection Between Failed VBAC and Brain Injury
The most serious complication of a failed VBAC is oxygen deprivation to the baby’s brain, medically known as birth asphyxia. When a VBAC attempt fails, especially due to uterine rupture or prolonged fetal distress, the baby can suffer severe and permanent brain damage within minutes.
How Failed VBACs Cause Brain Damage
There are two primary mechanisms by which failed VBACs lead to brain injuries:
1. Uterine Rupture and Placental Separation
When the uterus tears during labor—particularly at the site of the previous C-section scar—the baby can be pushed into the mother’s abdominal cavity. This catastrophic event causes immediate placental abruption (separation), cutting off the baby’s oxygen supply entirely. Without the placenta-uterus connection, the baby cannot receive any oxygen, leading to acute profound asphyxia.
2. Prolonged Labor Without Intervention
Even without complete rupture, a failing VBAC often involves prolonged labor with declining fetal heart rates. If medical staff fail to recognize warning signs or delay emergency C-section, the baby experiences progressively worsening hypoxia (low oxygen) and ischemia (reduced blood flow). This gradual oxygen deprivation can cause equally severe brain damage.
⚠️ Medical Emergency Timeline:
- 0-15 minutes: Immediate emergency C-section may prevent brain damage
- 15-18 minutes: Brain damage begins; permanent injury likely
- 30-35 minutes: Fetal death becomes almost inevitable
Studies confirm that if the baby is not delivered within approximately 15 minutes of complete oxygen deprivation, catastrophic brain damage is highly likely.
Types of Brain Injuries from Failed VBAC
Failed VBAC attempts can result in several types of severe brain injuries, all stemming from oxygen deprivation:
Hypoxic-Ischemic Encephalopathy (HIE)
HIE is a brain injury caused by oxygen deprivation and reduced blood flow to the brain. According to the Cleveland Clinic, HIE occurs in 1.5 to 2.5 per 1,000 live births in developed countries.
The prognosis for HIE is grave:
- 40-60% of affected infants die by age 2 or have severe disabilities
- 20-50% mortality rate among HIE cases
- 25-60% of survivors develop long-term neurological conditions including cerebral palsy, epilepsy, and cognitive disabilities
In uterine rupture cases, babies typically suffer from acute profound asphyxia—the most extreme form of HIE involving complete, sudden, and prolonged oxygen deprivation. This is the most common form of birth asphyxia in uterine rupture scenarios and frequently results in fetal death or catastrophic brain damage.
Cerebral Palsy
Cerebral palsy (CP) is a permanent movement disorder caused by brain damage during birth. Research shows CP affects 2 per 1,000 births, making it one of the most costly neurologic disabilities due to its frequency and lifelong persistence.
When uterine rupture causes oxygen deprivation, babies are at extremely high risk of developing cerebral palsy. The condition manifests as:
- Difficulty with muscle control and coordination
- Speech and swallowing problems
- Intellectual disabilities (in some cases)
- Seizure disorders
- Vision and hearing impairments
HIE Symptoms in Newborns
- Seizures within 24 hours of birth
- Abnormally low Apgar scores
- Difficulty breathing or respiratory failure
- Weak muscle tone (hypotonia)
- Poor feeding and sucking reflexes
- Abnormal consciousness or coma
- Organ dysfunction (kidneys, liver, heart)
Long-Term Effects of CP
- Lifelong mobility challenges
- Need for assistive devices (wheelchairs, walkers)
- Multiple surgeries and therapies
- Special education requirements
- Reduced life expectancy in severe cases
- Estimated lifetime costs exceeding $1 million
- Permanent impact on family quality of life
Other Neurological Injuries
Beyond HIE and cerebral palsy, failed VBAC brain injuries can include:
- Neonatal stroke: Blood clots or bleeding in the brain during birth
- Periventricular leukomalacia (PVL): White matter damage in premature or oxygen-deprived infants
- Intraventricular hemorrhage (IVH): Bleeding into the brain’s ventricles
- Developmental delays: Missed milestones in cognitive, motor, or social development
- Epilepsy and seizure disorders: Affecting 25-60% of HIE survivors
Medical Malpractice in VBAC Cases
Not all failed VBACs constitute medical malpractice, but negligent care before, during, or after a VBAC attempt can form the basis of a legal claim. Medical malpractice occurs when healthcare providers fail to meet the accepted standard of care, resulting in preventable harm.
Common Forms of VBAC Malpractice
1. Failure to Obtain Informed Consent
Medical providers must adequately inform patients of VBAC risks, including:
- 0.2-1.4% risk of uterine rupture with low-transverse scars
- Higher risk of emergency C-section (20-40% failure rate)
- Potential for catastrophic complications requiring hysterectomy
- Risks of oxygen deprivation, brain injury, and infant death
Failure to provide comprehensive risk disclosure before obtaining consent can constitute negligence.
2. Poor Candidate Selection
Encouraging or permitting VBAC for patients who are poor candidates violates medical standards. High-risk factors that should disqualify VBAC attempts include:
- Previous classical (vertical) C-section incision
- More than 2 prior cesarean deliveries
- Less than 18 months since last C-section
- Macrosomia (baby over 4,000 grams)
- Multiple pregnancy (twins, triplets)
- Breech or transverse fetal position
- Previous uterine rupture or surgery
- Hospital without immediate C-section capability
3. Delayed Emergency Intervention
The most critical form of VBAC malpractice involves failure to perform emergency C-section when warning signs appear. Medical teams must immediately respond to:
- Declining fetal heart rate patterns
- Sudden, severe abdominal pain (potential rupture)
- Loss of fetal heart tones
- Vaginal bleeding or hemorrhage
- Maternal shock symptoms
- Labor arrest or failure to progress
Delays of even 15-20 minutes in performing emergency C-section can mean the difference between a healthy baby and catastrophic brain damage.
4. Inadequate Hospital Facilities
Attempting VBAC in hospitals not equipped to perform emergency C-sections within 15-30 minutes constitutes negligence. All VBAC attempts require:
- On-site anesthesia capability 24/7
- Operating room immediately available
- Obstetric surgeon on premises or within minutes
- Neonatal resuscitation team available
- Blood bank access for potential hemorrhage
5. Improper Fetal Monitoring
Continuous electronic fetal monitoring is essential during VBAC attempts. Negligence includes:
- Intermittent monitoring instead of continuous
- Failure to interpret concerning heart rate patterns
- Ignoring signs of fetal distress
- Inadequate staff training on monitoring equipment
đź’ˇ New York Case Study: In Romanelli v. Jones (2017), a 39-year-old New York mother died from uterine rupture during a VBAC attempt at home under a nurse midwife’s care. The baby, estimated at 4,799 grams (over 90th percentile), was delivered stillborn at Putnam Hospital Center. Notably, the rupture was posterior (not at the C-section scar), a very rare complication. This case highlights the dangers of VBAC attempts outside hospital settings and with macrosomic infants.
New York Laws Governing VBAC Brain Injury Claims
If your child suffered a brain injury during a failed VBAC delivery in New York, understanding the state’s medical malpractice laws is essential to protecting your legal rights.
Statute of Limitations
New York has specific deadlines for filing medical malpractice claims, governed by Civil Practice Law & Rules § 214-a:
For Adults: Medical malpractice actions must be commenced within 2 years and 6 months of the act, omission, or failure complained of (or from the last treatment date for continuous treatment of the same condition).
For Minor Children (Birth Injuries): New York provides extended protection for injured children. Medical malpractice claims for minors have a deadline of whichever comes first:
- 10 years after the injury occurred, OR
- 30 months (2.5 years) after the child turns 18
For example, if a newborn suffered brain damage at birth in 2024, the parents have until the child’s 10th birthday in 2034 to file suit—they cannot wait until the child turns 18 and then have additional time.
⚠️ Important Exception: The discovery rule applies in birth injury cases. If a brain injury is not immediately apparent and is only discovered months or years later when the child misses developmental milestones, the 2.5-year statute begins running from the date the injury was discovered or reasonably should have been discovered—not from the birth date.
Certificate of Merit Requirement
New York law requires all medical malpractice plaintiffs to obtain a Certificate of Merit from a qualified medical expert within 90 days after filing the lawsuit. This certificate confirms that a medical professional has reviewed the case and believes there is a reasonable basis for the malpractice claim.
Key points about the Certificate of Merit:
- No exceptions or extensions available
- Must come from a qualified medical expert in the relevant specialty (obstetrics for VBAC cases)
- Failure to file within 90 days can result in case dismissal
- The expert must review medical records and confirm deviation from standard of care
Claims Against Municipal Hospitals
If the failed VBAC and resulting brain injury occurred at a city-run or government facility (such as NYC Health + Hospitals locations), special rules apply:
- You must file a formal Notice of Claim with the proper municipal agency
- Deadline: 90 days from the date of the medical error
- Much shorter timeframe than the standard 2.5-year statute
- Failure to file within 90 days typically bars the claim entirely
Government hospitals in New York include NYC Health + Hospitals (Bellevue, Woodhull, Jacobi, Lincoln, and others across NYC’s five boroughs), SUNY hospital facilities, and county-operated medical centers.
Proving Medical Negligence in Failed VBAC Cases
To succeed in a New York medical malpractice claim for a failed VBAC brain injury, you must prove four essential elements:
1. Doctor-Patient Relationship (Duty of Care)
You must establish that a doctor-patient relationship existed, creating a legal duty for the medical providers to meet professional standards of care. This is typically straightforward in birth injury cases—admission to the hospital for delivery creates this relationship.
2. Breach of Standard of Care
You must prove the healthcare providers deviated from accepted medical standards. In VBAC cases, this might include:
- Approving VBAC for a contraindicated patient
- Failing to monitor fetal heart rate continuously
- Ignoring signs of uterine rupture or fetal distress
- Delaying emergency C-section beyond reasonable timeframes
- Attempting VBAC in a facility without emergency surgical capability
- Inadequate informed consent process
Expert medical testimony is required to establish what the standard of care was and how the defendants violated it.
3. Causation
You must prove the breach of care directly caused your child’s brain injury. This requires showing:
- The baby was healthy before the negligent act
- The brain injury occurred during or immediately after the negligent care
- The injury would not have occurred but for the negligence
- The harm was a foreseeable result of the negligent actions
Medical records, fetal monitoring strips, and expert analysis are crucial evidence. The timing of events is critical—if fetal heart rate showed distress at 2:00 PM but C-section wasn’t performed until 2:45 PM, and the baby was born with HIE, causation becomes clear.
4. Damages
You must demonstrate actual harm and losses resulting from the brain injury. In failed VBAC cases, damages typically include:
Economic Damages:
- Past and future medical expenses (therapy, surgeries, medications)
- Special education costs
- Home modifications for accessibility
- Assistive devices and wheelchairs
- Lost earning capacity (if the child cannot work as an adult)
- Parental lost wages for caregiving
Non-Economic Damages:
- Pain and suffering of the child
- Loss of quality of life
- Emotional distress
- Loss of enjoyment of normal childhood activities
Life care plans prepared by medical economists often project lifetime costs exceeding $1 million for children with severe cerebral palsy or HIE-related disabilities.
đź’ˇ Evidence Critical to VBAC Cases:
- Fetal monitoring strips: Showing when distress began and when intervention occurred
- Labor and delivery notes: Documenting decision-making and timing
- Operative reports: Details of emergency C-section
- Neonatal records: Apgar scores, resuscitation efforts, HIE diagnosis
- Consent forms: What risks were disclosed before VBAC attempt
- Prenatal records: Showing contraindications were known or should have been
- Hospital policies: VBAC protocols and emergency response capabilities
Comparative Negligence in New York
New York follows a pure comparative negligence rule. Even if the mother is found partially at fault (for example, by insisting on VBAC against medical advice), she can still recover damages reduced by her percentage of fault.
For instance, if total damages are $2 million and the mother is found 20% at fault, the recovery would be $1.6 million (80% of total damages).
Taking Action After a Failed VBAC Brain Injury
If your child suffered a brain injury during a failed VBAC delivery in New York, taking prompt action is essential:
- Obtain all medical records: Request complete records from the hospital, obstetrician, and any specialists involved in care.
- Document your child’s condition: Keep detailed records of diagnoses, treatments, therapies, and developmental assessments.
- Preserve evidence: Save any communications with medical staff, consent forms, and discharge instructions.
- Consult a birth injury attorney early: Don’t wait until the statute of limitations is approaching. Early consultation allows time for thorough investigation.
- Get a case evaluation: Most birth injury attorneys offer free consultations to review your case.
- Don’t discuss the case publicly: Avoid posting about potential legal claims on social media, as this can be used against you.
An experienced New York birth injury attorney can help you navigate the complex medical and legal issues involved in failed VBAC brain injury claims, working to secure the compensation your child needs for lifelong care and support.
Free Attorney Connection Service: We connect New York families affected by birth injuries with qualified medical malpractice attorneys at no cost. Attorneys work on contingency—you pay nothing unless they win your case. Connect with a qualified NY attorney today for a free case evaluation.
Frequently Asked Questions About Failed VBAC Brain Injuries
What is the difference between VBAC and TOLAC?
TOLAC (Trial of Labor After Cesarean) is the attempt to deliver vaginally after a previous C-section. VBAC (Vaginal Birth After Cesarean) is the successful outcome when TOLAC results in vaginal delivery. Not all TOLACs result in VBACs—approximately 20-40% fail and require emergency C-section.
How common is uterine rupture during VBAC attempts?
Uterine rupture occurs in approximately 0.2% to 1.4% of VBAC attempts with low-transverse incisions. For women who have never had a C-section, uterine rupture is extremely rare (about 1 in 1,400 pregnancies). The risk increases with certain factors like previous classical incisions, multiple prior C-sections, and use of Pitocin for labor induction.
Can all women who have had a C-section attempt VBAC?
No. Only about 20-30% of women who have had C-sections qualify as low-risk VBAC candidates. Contraindications include classical (vertical) uterine incisions, more than 2 prior C-sections, previous uterine rupture, multiple pregnancy, macrosomic baby, and insufficient time since last C-section (less than 18 months).
What is HIE and how is it related to failed VBAC?
Hypoxic-Ischemic Encephalopathy (HIE) is a brain injury caused by oxygen deprivation and reduced blood flow. When uterine rupture occurs during VBAC, the baby’s oxygen supply is cut off, potentially causing HIE within 15-18 minutes. HIE affects 1.5-2.5 per 1,000 births, with 40-60% of affected infants dying by age 2 or having severe disabilities.
How quickly must a C-section be performed when complications arise?
When uterine rupture or severe fetal distress occurs, emergency C-section must be performed within approximately 15 minutes to prevent brain damage. Brain injury begins around 15-18 minutes without oxygen, and after 30-35 minutes, fetal death becomes almost inevitable. This is why hospitals attempting VBAC must have immediate C-section capability.
What are the symptoms of HIE in newborns?
HIE symptoms in newborns include seizures within 24 hours of birth, abnormally low Apgar scores (typically below 5 at 5 minutes), difficulty breathing or respiratory failure, weak muscle tone (hypotonia or “floppy baby”), poor feeding and sucking reflexes, abnormal consciousness or coma, and multi-organ dysfunction affecting kidneys, liver, or heart.
How long do I have to file a birth injury lawsuit in New York?
For birth injuries in New York, the statute of limitations is 10 years from the date of injury OR 30 months after the child turns 18, whichever comes first. However, if your child was injured at a municipal (government-run) hospital, you must file a Notice of Claim within just 90 days of the injury. The discovery rule may extend deadlines if the injury wasn’t immediately apparent.
What damages can be recovered in a failed VBAC brain injury case?
Damages can include all past and future medical expenses (surgeries, therapies, medications), special education costs, home modifications, assistive devices, lost earning capacity if the child cannot work as an adult, parental lost wages, pain and suffering, loss of quality of life, and emotional distress. Life care plans for severe HIE or cerebral palsy often exceed $1 million in lifetime costs.
Does my baby’s brain injury automatically mean medical malpractice occurred?
No. Not all bad outcomes are the result of negligence. To prove malpractice, you must show the medical providers deviated from accepted standards of care and that deviation caused the injury. For example, if a contraindicated patient was approved for VBAC, or if emergency C-section was unreasonably delayed despite warning signs, malpractice may exist. An attorney and medical expert must review the records to determine if negligence occurred.
Can I still file a claim if I signed a consent form acknowledging VBAC risks?
Yes. Signing a consent form does not waive your right to sue for malpractice. The question is whether you received adequate informed consent—were you fully informed of the specific risks given your situation? If medical providers failed to disclose your specific risk factors, performed VBAC despite contraindications, or acted negligently during delivery, you may still have a valid claim regardless of what you signed.
What is a Certificate of Merit and why is it required in New York?
A Certificate of Merit is a statement from a qualified medical expert confirming that your case has merit and there is a reasonable basis to believe medical malpractice occurred. New York law requires this certificate to be filed within 90 days of filing your lawsuit. It prevents frivolous lawsuits while ensuring legitimate claims can proceed. Failure to file the certificate within 90 days can result in dismissal of your case.
My child’s developmental delays weren’t diagnosed until age 2. Is it too late to file a claim?
Possibly not. New York’s discovery rule states that the statute of limitations begins when the injury is discovered or reasonably should have been discovered. If your child’s brain injury from a failed VBAC wasn’t diagnosed until age 2 when developmental delays became apparent, the 10-year statute may begin at diagnosis, not at birth. However, you should consult an attorney immediately, as courts evaluate each case individually to determine when the statute started running.
Connect with a Qualified New York Birth Injury Attorney
Failed VBAC brain injury cases involve complex medical and legal issues requiring specialized expertise in both obstetrics and New York medical malpractice law. These cases demand thorough investigation, expert medical testimony, and detailed life care planning to ensure your child receives the compensation needed for lifelong care.
If your child suffered brain damage during a failed VBAC delivery, you deserve answers and your child deserves justice. Our free service connects New York families with experienced birth injury attorneys who understand the devastating impact of HIE, cerebral palsy, and other neurological injuries.
Why connect with a specialized birth injury attorney?
- Free case evaluations: No cost to find out if you have a valid claim
- Contingency fee basis: You pay nothing unless your attorney wins compensation
- Specialized expertise: Attorneys with proven track records in birth injury cases
- Medical expert networks: Access to obstetricians, neurologists, and life care planners
- Understanding of New York law: Familiarity with NY statutes, court procedures, and precedents
- Compassionate support: Attorneys who understand the emotional and financial toll on families
Don’t let time run out on your child’s legal rights. New York’s statute of limitations and procedural requirements make early action essential. Connect with a qualified New York birth injury attorney today for a free, confidential case evaluation. Our service is completely free for families—we’re here to help you get the answers and justice your child deserves.
