HIE and Oxygen Deprivation at Birth: Texas Lawyer

Hypoxic-ischemic encephalopathy, or HIE, is a brain injury that happens when a baby’s brain does not get enough oxygen or blood flow before, during or shortly after birth. It is one of the most serious outcomes of a difficult labor and the diagnosis behind many cases of cerebral palsy, epilepsy and developmental delay.

Sometimes HIE happens even when everyone in the delivery room does everything right. In other cases the warning signs were on the fetal monitor for a long time, the emergency C-section came too late, or the baby was not resuscitated and cooled quickly enough. Those are the situations where the law allows parents to ask hard questions.

This page explains what HIE is, how mistakes during labor and delivery cause it, the signs parents notice, what a records review shows, the Texas deadlines and what compensation covers. Beverly Law offers Texas families a free, confidential case review in English and Spanish, through licensed local counsel.

What is HIE

Hypoxic means too little oxygen, ischemic means too little blood flow, and encephalopathy means the brain is not working normally. The National Institute of Neurological Disorders and Stroke (NINDS) describes HIE as an umbrella term for a brain injury that happens before, during or shortly after birth when oxygen or blood flow to the brain is reduced or stopped. According to Cleveland Clinic, HIE affects an estimated 1 to 6 infants out of every 1,000 births.

In the first hours of life, doctors grade the injury with the modified Sarnat exam, which looks at six areas: level of consciousness, spontaneous activity, posture, muscle tone, primitive reflexes and the autonomic system. The result is recorded as no encephalopathy, mild, moderate or severe. It is a snapshot, not a prediction, but it drives a key decision in the NICU: whether the baby qualifies for cooling.

Therapeutic hypothermia, or cooling therapy, is the main treatment for moderate to severe HIE. Nationwide Children’s Hospital explains that it must be started within the first 6 hours after birth: a cooling system lowers the baby’s body temperature to 91.4°F to 95°F (33°C to 35°C) for up to 72 hours, and then the baby is slowly rewarmed. The goal is to protect the brain from further injury.

HIE is closely linked to lifelong conditions. NINDS lists cerebral palsy, epilepsy, developmental delays and intellectual disabilities among its long-term effects, and Cleveland Clinic estimates that 25% to 60% of infants with HIE have long-term neurological conditions. Nationwide Children’s notes that the severity may not be seen until ages 3 to 4.

How mistakes during labor and delivery cause it

Before birth, a baby gets its oxygen through the placenta and umbilical cord, and labor stresses that supply. That is why hospitals monitor the fetal heart rate. Cleveland Clinic describes the signs of fetal distress as a slow fetal heart rate and repeated late or variable decelerations (brief drops tied to contractions). When the pattern is concerning, the team is expected to act: reposition the mother, give IV fluids, slow or stop contractions and, if the baby does not recover, move to an emergency delivery or C-section.

Some events cut off oxygen suddenly. NINDS and Cleveland Clinic list umbilical cord prolapse or compression, placental abruption (the placenta separating from the uterus), uterine rupture (the uterus tearing open), preeclampsia and very high or very low maternal blood pressure, and the baby’s shoulders getting stuck for a prolonged period. In these emergencies, minutes count.

Medical mistakes usually involve time: not reading the monitoring strip correctly or not escalating to the physician, waiting too long to call an emergency C-section or to get the mother to the operating room, not slowing contractions that are too frequent, failing to recognize an abruption or rupture, leaving high blood pressure untreated, and a slow or disorganized resuscitation once the baby is born. Because cooling has a 6-hour window, a delay in recognizing HIE after birth can also cause lasting harm.

Signs parents notice

HIE is diagnosed by doctors, but parents are usually the first to sense that something is wrong:

• A low Apgar score. It is given at 1 and 5 minutes after birth and rates breathing, heart rate, muscle tone, reflexes and skin color; MedlinePlus says any score below 7 means the baby needs medical attention.
• The baby needed resuscitation: help breathing right after delivery, sometimes for 10 minutes or longer.
• Seizures or unusual movements in the first days of life. Some seizures are subtle and only show up on an EEG.
• A NICU stay, often with cooling therapy, an EEG and a brain MRI.
• Trouble feeding: a weak suck, choking, or needing a feeding tube.
• Unusual muscle tone: floppy and weak, or stiff and tense.
• Pale, blue or gray skin, lips or fingers, or a weak cry.
• Later, missed milestones such as holding the head up, sitting or crawling, or a diagnosis of cerebral palsy, epilepsy or developmental delay.

Is it medical negligence?

Medical negligence, also called medical malpractice, means a doctor, nurse or hospital did not act the way a reasonably careful professional would have in the same situation. This is called the standard of care. The question is not whether the outcome was bad; it is whether the care fell below that standard and whether that failure caused the injury.

HIE can happen without anyone being negligent. Nationwide Children’s Hospital notes that often the exact cause of HIE is unknown, and Mayo Clinic points out that lack of oxygen during a hard labor or delivery is a less common cause of cerebral palsy than previously thought. A sudden abruption or a cord accident can injure a baby even with excellent care. That is why every case starts with the records, not with assumptions.

A records review looks at timing. The fetal heart-rate strips show when the pattern became concerning; the nursing notes show when the physician was told; the operative record shows when the C-section was ordered and done. The cord blood gas shows whether the baby was acidotic at birth (the cooling criteria at Children’s Hospital of Philadelphia include a pH of 7.0 or lower), and the resuscitation and cooling records show whether treatment started inside the 6-hour window. The brain MRI, usually done at 4 to 7 days of age, can show where the brain was damaged. Physicians in obstetrics, neonatology and pediatric neurology review these records to say whether the injury was preventable.

Texas adds two hurdles. Under Civil Practice and Remedies Code § 74.153, a claim arising from emergency medical care in a hospital’s obstetrical unit, which can include an emergency delivery, requires proof of “willful and wanton negligence,” not just ordinary negligence. The rule does not cover care after the patient is stabilized, care unrelated to the emergency, or a provider whose own negligence caused a stable patient to need emergency care. And § 74.351 requires a qualified expert’s report within 120 days after each defendant answers the lawsuit. The timeline in the records is what answers both questions.

Deadline to file in Texas

Texas gives a child’s birth-injury case its own deadline, but it comes with a hard outer limit. Under Civil Practice and Remedies Code § 74.251, a health care liability claim must be filed within two years of the negligent act or of the end of the treatment or hospitalization, but a child under 12 has until his or her 14th birthday. The same statute adds a 10-year statute of repose that applies to everyone, children included, and the Texas Supreme Court enforced it in 2014 against a child injured at birth. For a baby hurt during labor or delivery, that means the case must be filed within 10 years of the delivery at the very latest, before the 14th birthday ever arrives. The clock does not wait for a diagnosis, the parents’ own claims generally have only two years, and the Court has refused to excuse a late filing when the parent waited too long, so it is safer to get advice early.

Many Texas babies are born at hospitals run by public hospital districts, such as Harris Health’s Ben Taub and Lyndon B. Johnson hospitals in Houston, Parkland Health in Dallas, University Health in San Antonio and JPS Health Network in Fort Worth, or at hospitals run by state universities. Claims against a government-run hospital fall under the Texas Tort Claims Act. Under Civil Practice and Remedies Code § 101.101, the governmental unit is entitled to notice of the claim within six months of the incident, describing the injury, the time and place, and what happened, and a city’s charter can require notice even sooner. The statute has no exception for minors, and Government Code § 311.034 makes notice a jurisdictional requirement. The Act also limits what a public entity can pay: under § 101.023, $100,000 per person for a unit of local government and $250,000 per person for the state government or a city. If your baby was born at a public hospital, act right away.

Before a medical malpractice lawsuit can be filed in Texas, each doctor and hospital must get written warning. Under Civil Practice and Remedies Code § 74.051, the notice of claim must be sent by certified mail, return receipt requested, at least 60 days before suit, together with the medical authorization form written into § 74.052; without that form, the case is put on hold until 60 days after it is provided. Proper notice pauses the filing deadline for 75 days for all parties, and the Texas Supreme Court has held that notice sent without the authorization does not. Then, under § 74.351, the family must serve a report from a qualified expert, with the expert’s CV, on each defendant no later than the 120th day after that defendant files its answer. If the report is not served on time, the court, on the defendant’s motion, must dismiss the claim against that defendant with prejudice and award its attorney’s fees. In practice, the medical review has to be well underway before the lawsuit is filed.

What compensation covers

A child with moderate or severe HIE may need care for life. A claim in Texas can seek the cost of that care, based on a life-care plan prepared by medical and economic experts: lifetime medical care, seizure medication, surgeries and nursing; physical, occupational, speech and feeding therapy; equipment such as wheelchairs, braces and communication devices; home and vehicle modifications; and special education with one-on-one support at school.

A claim can also seek the earning capacity the child will lose as an adult, the income parents give up when one of them stops working to become a caregiver, and pain and suffering, loss of enjoyment of life and other non-economic harms.

Texas limits one part of a medical malpractice recovery. Under Civil Practice and Remedies Code § 74.301, non-economic damages (pain and suffering, mental anguish, physical impairment, loss of enjoyment of life) are capped at $250,000 for all doctors and other individual providers combined, plus $250,000 per hospital or other health care institution, with no more than $500,000 for all institutions together. These amounts are fixed in the statute and do not rise with inflation, and everyone whose claim comes from one child’s injury, parents included, counts as a single claimant. Economic damages are not capped by § 74.301: lifetime medical care, therapy, equipment, attendant care and lost earning capacity can be recovered in full, although medical expenses are limited to the amounts actually paid or incurred (§ 41.0105). In a birth-injury case, those economic damages are usually the largest part of the claim. If a baby dies, a separate overall limit in § 74.303 applies; it is adjusted for inflation since 1977 and does not include the cost of medical and custodial care.

What to ask the hospital for

Parents can request copies of their own and their baby’s medical records. Ask in writing as early as possible and keep everything. In Texas, a hospital must make the records available and provide a copy within 15 days after it receives your written authorization and any allowed fee (Health and Safety Code § 241.154), and a doctor generally within 15 business days (Occupations Code § 159.006). The most useful items are:

• Complete prenatal records and the full labor and delivery chart.
• Fetal heart-rate monitoring strips for the entire labor.
• Nursing notes and physician notes with time stamps.
• Apgar scores at 1, 5 and 10 minutes.
• Umbilical cord blood gas results (pH and base deficit).
• The newborn resuscitation record, with who was present and when each step happened.
• Complete NICU records, including the neurological (Sarnat) exam.
• Cooling-therapy records: start time, temperature log and rewarming record.
• Brain imaging: head ultrasound and MRI reports and images.
• EEG reports.
• The discharge summary for mother and baby.

How Beverly Law helps

Beverly Law is a Los Angeles personal injury firm; in Texas, we take birth-injury cases through licensed local counsel, in English and Spanish. A birth-injury case takes records, medical experts, time and resources that most families do not have while caring for a newborn with special needs. We take on that work so you can focus on your child.

It starts with a free, confidential case review. We listen, request the complete hospital records on your behalf, and have them reviewed by physicians who handle deliveries and care for babies with HIE. If the standard of care was not met, we explain your options, and the notices, the lawsuit and the expert report are handled on time with licensed local counsel. If the injury could not have been prevented, we tell you that honestly.

There is no fee unless we win. Call 1 (877) 427-2752 or send us a message to schedule your free consultation. Hablamos español.

Questions parents ask

Related pages

Cerebral Palsy · Erb’s Palsy / Brachial Plexus Injury · Statute of Limitations · Texas Damage Caps · Texas birth injury lawyers

Important: This page is general information about birth injuries and Texas law, not legal advice, and reading it does not create an attorney-client relationship with Beverly Law. Every case is different — talk to a lawyer about your own situation. Attorney advertising. Prior results do not guarantee a similar outcome. No fee unless we win. Last reviewed: 2026-09-30.