The Legal Process and Timeline in Birth Injury Lawsuits

An experienced birth injury lawyer walks you through the general process

By Canaan Suitt, J.D. | Last updated on September 8, 2023 Featuring practical insights from contributing attorney Peter M. Villari

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“About 10 percent of all children born in this country are born with some type of injury,” says Peter Villari, a medical malpractice attorney in Philadelphia, whose firm, Villari, Giannone & Matteo, has helped families all over the country recover compensation for birth injuries.

“Not all of those cases are due to medical negligence—only around 1-1.5 percent are injuries that could have been prevented. So, it’s not a lot. This bespeaks a medical system that is generally working,” he adds.

“But every year, there are some children who, for whatever reason—including negligence—have an injury.”

What is a Birth Injury Lawsuit?

Birth injuries may result from medical errors during prenatal care, the delivery process, or shortly after delivery.

Common birth injuries include:

  • Cerebral palsy—a set of neurological conditions that affect the child’s ability to move, posture, and coordination;
  • Hypoxic-ischemic encephalopathy (HIE)—a brain injury resulting from a lack of oxygen (hypoxic) or lack of blood (ischemic) to the brain;
  • Erb’s palsy—resulting from brachial plexus injuries such as shoulder dystocia.

When birth injuries are due to medical negligence, families can pursue financial compensation through a birth injury lawsuit against the responsible healthcare provider.

Even though this option exists, “Many people don’t want to sue others,” says Villari. “Often, parents endure years of suffering before they seek help, and they see lawyers as a last resort instead of a first resort.”

One deterrent to seeking legal help is the air of mystery surrounding the legal system. Many people are unfamiliar with how lawsuits work, what to expect throughout the process, and how long it can take.

This article aims to demystify the process by walking through the steps of a birth injury lawsuit. With a better understanding of how these lawsuits proceed, you can seek legal advice from an attorney with greater confidence.

The early process is a very intense fact-gathering and medical record-gathering process. You are trying to determine if the injuries are legally actionable. In almost every state, you can’t bring a medical malpractice case against a doctor unless you have another doctor of similar kind and experience saying: Well, that doctor screwed up… The litigation process generally takes, by my experience, anywhere from 28-36 months. We try to move as quickly as possible to a trial date. Either we mediate it and settle, or we go to trial.

Peter M. Villari

The Seven Steps in a Birth Injury Lawsuit

Every birth injury lawsuit is unique in terms of the type of birth injury involved, the parties, and the underlying facts. Not every lawsuit will include all of these steps—many settle before getting to trial. However, some cases will proceed through each phase. It’s good to know what the process could entail ahead of time.

1. The Initial Consultation with an Attorney

The first step is the initial case review with a birth injury attorney.

“People will contact us with a concern that they have regarding the birth of their child,” says Villari. “Many times, it’s simply, ‘My child is not normal. We’ve been told that something might be wrong.’ We start by doing a very extensive interview of the person. We ask all the basics: age, date of birth, where the child was born, who the attending physicians were, the hospital, etc.”

One of the first things a lawyer wants to know is if there has been any diagnosis reached, says Villari. “Often, the initial diagnosis makes it very clear, almost immediately, that there is no birth injury claim from the perspective of pursuing compensation for the child and parents. However, if there is a cause in injury, we’ll move forward and get as many records as are out there.”

2. The Pre-litigation Phase: Gathering Evidence and Medical Expert Witnesses

“The early process is a very intense fact-gathering and medical record-gathering process. You are trying to determine if the injuries are legally actionable,” says Villari. “In almost every state, you can’t bring a medical malpractice case against a doctor unless you have another doctor of similar kind and experience saying: Well, that doctor screwed up.”

This crucial step establishes the medical standard of care and whether the healthcare professional’s actions fell below that standard. “In birth cases, it’s usually an obstetrician who can assess if the doctor should have delivered sooner, for example, or whether there were patterns on the fetal monitoring strips suggesting the baby was suffering from hypoxia.”

So, a birth injury case ultimately depends on the expert assessment of both lawyers and medical professionals. “If we think there’s a case as a lawyer, we go to the doctors, and the doctors have to agree with us that there has been negligence, or we don’t start, period.”

3. Filing the Lawsuit

Assuming there’s a case, Villari says that lawyers try to file quickly.

“The exact amount of time varies. Generally speaking, we like to complete the pre-litigation process in about 6-8 months. However, it can depend on the cooperation you get from hospitals and doctors in providing medical records. Sometimes, that’s a battle. For example, they may give us incomplete charts. The charts may be incomplete, or they don’t want to hand over everything. The bottom line is that an experienced attorney, working with expert nurses, will know what should be in the charts and if anything is missing.”

Once you have your experts and records lined up, “you draft a very detailed complaint. We let them know plain and simple: this is our case; this is why we’re coming. Then we file it.”

The defendants will get served with the complaint. At that point, “they’ll get their lawyers and insurance company involved. Sometimes, it’s so egregious that they’ll talk to you immediately: Can we settle this?”

4. Discovery Phase

“Once litigation has started, each side has the right to serve written questions called interrogatories on the other. We can also request the production of documents and things,” says Villari.

This phase is called “discovery”—essentially, a process for both sides to learn about all the evidence involved and the strength of each party’s case.

“We’re legally required to fully exchange everything we have unless it’s privileged or confidential. Then, we take the depositions of every doctor and nurse involved while they will depose the parents and caregivers. Note that in Pennsylvania and other states, there’s no right to depose experts, though you do have to provide written medical reports and their CVs. In other states, you can also depose each side’s experts.”

5. Mediation and Settlement Negotiations

Villari notes that mediation has become a “powerful, positive tool in birth injury cases.”

A type of alternative dispute resolution (ADR), mediation “helps the child and parents as well as the medical industry save time and money” by negotiating a birth injury settlement amount without going to court.

Villari explains that mediation could be used early in the process or sometimes not until you go to trial.

6. Trial and Verdict

“The litigation process generally takes, by my experience, anywhere from 28-36 months,” says Villari.

“We try to move as quickly as possible to a trial date. Either we mediate it and settle, or we go to trial—and these trials can take quite some time. Usually, they go from a minimum of two to four weeks, and sometimes longer.”

7. Compensation and Post-Trial

“What the parents and child need more than anything is lifetime care—called a life healthcare plan,” says Villari.

Assessing the Cost of the Child’s Care

“During litigation, we will have the child examined by a nurse rehabilitation specialist, who tells us everything that the child will need for the rest of their life—from diaper pins to the most complicated medical equipment, housing modifications, or special vehicles,” says Villari.

“The life healthcare plan is then evaluated by economists, who assess its cost. Some states require that the cost be reduced to ‘present value’—in other words, if you invested $10 today, what would it be worth when the child is 15 years old?”

Assessing Lost Earning Potential

In addition to a life healthcare plan, “You’re also working with vocational experts to tell you what the child could have done in terms of vocation or career plans and lifetime earning capacity had it been born without injuries. These experts look at socioeconomic factors such as whether the child’s family was or was not college-educated, etc.,” explains Villari.

Presenting Damages to the Other Side or Jury

Other potential damages in a birth injury include pain and suffering and loss of life’s pleasures.

“All of the information regarding damages is put together before you go to trial because all the parties want to know the damages. The other side wants to know their exposure. And you have to present it all to the jury if the case doesn’t settle. You’re essentially saying: Here’s what we want. More than anything, we want the child to be taken care of, and this is what that will cost.”

How Compensation is Allocated

“All of the money that’s recovered in a lawsuit is put in a trust, often called a ‘special needs trust,” says Villari.

He explains that putting the money in a special needs trust allows the child to continue receiving all Medicare or Medicaid benefits. “The initial fund has to pay back whatever the lien is for Medicare or Medicaid up to that point in time—or if there’s a lien from an insurance company. But then those government benefits can continue alongside the money in the trust.”

Villari adds, “The courts carefully supervise these trusts—parents don’t just take the money and run with it.”

How Long Do I Have to Bring a Birth Injury Lawsuit?

“Under Pennsylvania law, for example, a child has until its twentieth birthday to bring a case. On the other hand, the child’s parents only have two years from the date of the birth, or when they do or could have known about the negligence. So, parental claims could fall to the wayside, but the child can still bring one,” says Villari.

However, “other states are very different in their statutes of limitations. You have to be very careful. Sadly, some people come to us when it’s too late, and we have to tell them that.”

The upshot is to seek legal advice as soon as possible if you suspect birth injuries due to medical negligence.

How Do I Pay for a Birth Injury Lawyer?

“Fee agreements for minors in Pennsylvania, New Jersey, and pretty much across the entire country are dictated by the government—meaning, the state says what lawyers can and cannot charge on a contingency fee basis,” explains Villari.

“The legal fees are well-controlled to protect families from being taken advantage of. For example, in Pennsylvania, lawyers are generally paid a third of the net award. However, the cap can vary from county to county and be even less.”

The bottom line is that for most attorneys there are no upfront costs for families seeking financial compensation through a birth injury lawsuit. You only pay an attorney if you win the case. The flip side of this is that attorneys are highly selective in which cases they will take.

How Do I Find a Birth Injury Attorney?

“By and large, those of us who handle birth injury cases are very experienced, we’re very respected, and we care about what we do,” says Villari. “It’s not what’s sometimes called ‘ambulance chasing.’ It would be absolutely wrong to pursue frivolous cases. It’s a respectable system.”  

If you’re considering legal action for your child’s birth injury, contact an experienced birth injury law firm for a free case evaluation with their legal team. You can start your search for an experienced birth injury lawyer using the Super Lawyers directory. You can read about attorneys’ legal practice and email or call their law office’s phone number.

For more information on this area of law, read our overview of birth injury medical malpractice lawsuits and related resources.

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