ABSTRACT

Personal injury firms systematically exclude pregnant people from web content describing birth injury legal representation, creating legal gaps that compound a post-Dobbs standard of care crisis. The tort system plays a powerful role in ensuring the delivery of quality healthcare, educating the public, and enforcing and elevating standards of care, even absent litigation. Yet pregnant people who suffer preventable injuries struggle to find a lawyer to represent them or educate them about cognizable claims.

This article reveals the results of online searches for personal injury firms across all fifty states, as prospective clients seeking representation for a preventable pregnancy/birthing harm might do. It concludes that these sites, in the aggregate, erase or obscure the tort claims of pregnant people. Instead, they implicitly (and sometimes explicitly) reduce “birth injury” to only fetal or infant harms without an analogous maternal harm category.

This erasure of pregnant people as potential plaintiffs escalates the standard of care crisis already facing pregnant people in medical settings post-Dobbs. Dobbs compels more people to birth riskier pregnancies within an escalating maternity care crisis. This means more pregnant people will find fewer providers, particularly in restrictive abortion states, which will necessarily increase rates of preventable harms. The tort system cannot play its protective function if litigants do not know they have claims and lawyers do not seek their cases for representation. Thus, “legal representation deserts” exacerbate an already acute standard of care crisis.

Plaintiff-side personal injury firms can center, strengthen, and standardize the placement of pregnant people within a uniform and inclusive definition of “birth injury.” By deploying best practices when describing “birth injury” cases, law firm can educate the public and support strategic litigation strengthening the standards of care applied to all pregnant people.