When a newborn baby suffers an injury due to the negligence of a doctor, nurse, or other medical provider, the damage could lead to lifelong difficulties – and even premature death. Parents are often understandably concerned about their child’s medical health and safety in such instances, but it is just as important to explore the option of compensation through a birth injury lawsuit.
Birth injuries come in many forms, and the impact they have is lasting. Talking to a birth injury lawyer right away is essential to ensuring that your child has the funds necessary for treatments, long-term medical care, and any complications that might arise later in life.
Birth Defect vs. Birth Injury
A birth defect occurs while the baby is in the womb. The causes of birth defects could be genetic, the result of abnormal development, or an illness during pregnancy. Additionally, chemical exposure – such as the mother taking certain prescription medications while pregnant or breastfeeding – could cause some types of birth defect. While congenital defects may be unavoidable, defects caused by chemical exposure or an illness in mom that was improperly treated may be the responsibility of the attending physician.
A birth injury refers to any damage, pain, impairment, or disfigurement that occurs just before, during, or after childbirth. It particularly applies to any injury that could have been prevented by following the proper medical techniques or procedures. Injuries resulting from a traumatic birth, mishandling, misdiagnosis, or negligence are all types of birth injury.
Most Common Birth Injuries
- Cerebral Palsy – a group of motor disorders affecting movement
- Erb’s Palsy – paralysis of the upper arm muscles due to brachial plexus injury
- Klumpke’s Palsy – paralysis of the lower arm and hand muscles due to brachial plexus injury
- Hematoma – bleeding beneath the cranium (scalp)
- Spinal Cord Injuries – damage or severing of major nerves/nerve groups
- Facial paralysis – injury to nerves controlling the baby’s face muscles
- Perinatal Asphyxia – oxygen deprivation during delivery, leading to brain injury such as hypoxic-ischemic encephalopathy
- Clavicle Fracture – breaking of the collar bone
- Caput Succedaneum – swelling of soft tissue in the scalp
- Bruising – usually caused by instruments like forceps
- Subconjunctival hemorrhage – bursting of blood vessels in the eyes
Costs for Birth Injury Treatments
The cost to treat birth-related trauma can range widely depending on the type and severity of the injury sustained.
Emergency Care: Most birth injuries will require some form of immediate care to address any acute problems caused by the injury.
Intermediate Care: Babies who are injured at birth often require additional care, including everything from an extended stay in the hospital to additional checkups at a pediatrician’s office, in-home visits, and more.
Long-Term Care: Some birth injuries are permanent, such as cerebral palsy, and can cause complications later in life. Retaining reliable long-term care for people injured at birth can be difficult and expensive.
Life Care Plans
Life Care Plans are legal documents that specify the types of care a child who experiences birth injury will need over the course of his or her lifetime. In addition, the document provides an estimate of the medical expenses related to treatments and other medical needs that are likely to arise during the individual’s life, as well as incidental costs related to those needs.
Costs Included in a Life Care Plan
- Physical therapy
- Speech therapy
- Psychological therapy
- Special education costs
- In-home care expenses
- Daily medical supplies
- Prescription medications
- Mobility devices
- Transportation to/from treatment centers
- Home modifications to accommodate disability
The primary goal of a Life Care Plan is to anticipate all the future medical expenses of the child so that he or she will be well cared-for throughout the rest of their life. By putting such a plan in place, parents can better understand the financial burden on the family, and it can help inform the level of compensation they may wish to seek when filing a birth injury lawsuit.
Building a Birth Injury Legal Case
Proving your child’s birth injury was the result of medical negligence or another form of malpractice may not be easy. Plaintiffs need to establish several facts and conditions to improve the likelihood that they will receive compensation.
Birth injury malpractice is a form of medical malpractice specifically related to injuries just before, during, or after the childbirth process.
- Duty of Care: Foremost, it is important to establish that the doctor or other medical staff (or the hospital/medical center) had a duty of care over your child at the time that the birth injury occurred.
- Breach of Duty: Once duty of care is established, the next hurdle is to show that the medical professionals responsible for your child’s welfare committed a breach of duty of care, which in turn led to injury. Breach of duty can include both actions that the medical provider took, as well as things they failed to do, such as ordering an emergency c-section (cesarean section).
While additional evidence will need to be gathered to make your case, proving duty of care and demonstrating a breach of that duty are a large portion of building your case. Experienced birth injury law firms will have the knowledge and resources to help you gather research and put together your medical malpractice claim in a way that greatly increases your likelihood of receiving compensation.
Taking Prescriptions During Pregnancy
Certain prescription medications can greatly increase the risk of some kinds of birth defects or birth injuries. For example, Zofran has a known link to certain kinds of fetal birth defects and should be avoided during pregnancy.
Medical malpractice cases can also arise when doctors prescribe drugs known to cause birth injuries or defects. Specifically, they could be held liable for providing poor medical guidance to their patients. Pregnant women understandably trust the medical advice of their obstetricians and other health care providers, and medical experts are expected to understand the risks of taking certain drugs. Failing in this duty of care by prescribing medications that can harm the mother, child, or both is possible grounds for a birth injury lawsuit.
What Evidence Is Required to File a Birth Injury Claim?
Your birth injury attorney will help you gather documentation and other evidence related to your lawsuit. Examples of evidence include:
- Medical records
- Hospital bills
- Insurance benefit statements
- Emails, letters and other communications to and from your doctor’s office
- Witness depositions
- Expert witness testimony
In addition, your lawyer would research any relevant medical studies, case law, and health industry standards that could benefit your case.
Birth Injury Lawsuit Timeline
One of the most common questions parents have before filing a birth injury claim is how long the lawsuit and trial process will take. On average, plaintiffs should expect to spend up to two years on bringing their case to trial. Motions, appeals, and other legal maneuvers on the part of the defendants could extend that period even longer, often in an attempt to frustrate the plaintiffs and make them more amenable to a birth injury settlement.
Settlements generally take less time than going to trial, but you have to be careful: Defendants will typically extend a low settlement offer to begin with in the hopes that plaintiffs will jump at any amount of money presented. A lawyer who has handled many birth injury cases will be able to advise you appropriately on whether the settlement seems like a fair deal based on your situation and evidence – or not.
Medical Malpractice Lawsuit Process
Birth injury lawsuits are handled as a special type of medical malpractice lawsuit. This type of litigation follows a similar process in most malpractice cases:
- Free Consultation: This free consultation is offered by most medical malpractice attorneys as a way of giving potential clients a chance to ask questions and see if filing a lawsuit is right for them.
- Research: During this period, your lawyer will help you gather all of the evidence necessary to make your case.
- Notice: In some states and under certain conditions, you are required to notify the defendant in a certain amount of time after the injury occurs. Your lawyer will help you prepare and delivery the appropriate notice as necessary.
- Filing the Claim: Once the evidence is gathered, your lawyer will prepare the official legal complaint and file it with the appropriate court.
- Discovery and Pretrial Motions: During this stage, your lawyers will share information and evidence with opposing counsel (and vice versa), as required by law, and file any motions that will help you build your case.
- Trial: If a settlement is not reached during the discovery and pretrial phase, a court date for the trial will begin. The trial itself may last anywhere from a few days to a couple weeks – and in rare cases, even longer.
- Verdict: At the end of a trial, assuming no settlements have yet been reached, a verdict will be returned, either for the plaintiff or the defendant.
- Compensation Awards: If the verdict returns in favor of the plaintiff, compensation will be awarded in the form of compensatory damages and/or punitive damages. Different states have different rules as to whether compensation is decided by a jury or judge, and whether it is returned as part of the verdict or as a separate stage itself.
- Appeals: After the verdict and compensation awards, the losing party may be able to file an appeal if they believe something went wrong during the trial. Many appeals are filed on technical procedural grounds, though appeals could also be made if the losing party believes evidence was improperly introduced (or rejected), or if the compensation amount was improperly calculated.
Types of Birth Injury Compensation
Settlements: A settlement is a legal contract between two parties wherein they both agree to certain facts and conditions. Birth injury settlements often include some kind of remuneration for the plaintiff, on condition that they will drop all legal actions against the defendant.
Verdicts: A verdict is a legal judgment by a jury or judge that requires one party to pay a certain amount of money to another party. Verdicts can award compensatory damages (money for actual costs associated with the injury) or punitive damages (money that punishes the responsible party for their actions). Some states cap the amount of money that can be award for certain types of damages.
Some forms of compensatory damages are known as non-economic damages. These include things like pain and suffering, emotional distress, physical impairment, disfigurement, and similar injuries that cannot be given a specific dollar amount.
In the United States, some states limit the amount of compensation that can be awarded for non-economic damages in a medical malpractice lawsuit. Your birth injury lawyer will be able to advise you as to what types of damages you should seek when filing your birth injury claim.
Paying Legal Fees Using Compensation Awards
Reputable birth injury lawyers will often take cases on a contingency basis, meaning that they only receive payment if they help you get compensation for your claim. The amount that they will receive is often a percentage of the settlement or verdict award, and it is agreed upon between you and your medical malpractice attorney up front before you sign the representation agreement.
Before agreeing to take your case, the lawyer will typically offer a free consultation. This helps both you and the law firm, because it lets you talk about your legal needs and ask questions, while giving the lawyer a chance to assess your birth injury case before dedicating significant time and resources to it.
Statute of Limitations for Birth Injury Lawsuits
Most states require lawsuits to be filed within 2 years of the birth injury or wrongful death. However, some states have additional rules and regulations, and a few states (like Kentucky and Louisiana) have a limitation of only 1 year.
When considering whether or not to talk to a lawyer, it’s important to understand what deadlines you may be dealing with. For obvious reasons, many parents will want to focus on the health and wellbeing of their child by seeking treatments and planning for longer-term care.
Every state has its own deadlines, known as statutes of limitations, with some variation on the timeframes in which people need to file their birth injury claim. Statutes of limitations are usually expressed as a period of time after one of the following events:
- Date on which the birth injury occurred
- Date on which the birth injury was discovered or should have reasonably been discovered
- Date of death for cases of wrongful death
Other limitations can apply, as well, such as filing before the child reaches a certain age. These age-based limitations are typically applied in addition to the broader event-driven limitations.
The resource below provides an overview of the statute of limitations in each state. While we have done our best to accurately portray the rules in each state, you should talk with a lawyer to make sure you understand the rules in your area.