When to Consult a Birth Injury Attorney: Key Considerations

The complexity and expense of birth injury lawsuits make attorney consultation essential

By Judy Malmon, J.D. | Reviewed by Canaan Suitt, J.D. | Last updated on August 2, 2023 Featuring practical insights from contributing attorney Marilena DiSilvio

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Awaiting the birth of a baby is an exciting time that brings with it countless things to think about, including planning for labor and delivery. In an ideal world, the worst thing that happens at your baby’s birth is that your carefully organized playlist doesn’t make it to the delivery room. In some cases, however, much more serious problems occur.

If your child was injured during the delivery process and you suspect medical negligence was involved, the best advice is to speak with a medical malpractice lawyer experienced in birth injury claims as soon as possible.

One reason it’s important to speak with a lawyer is that birth injury lawsuits are extremely complex. For example:

  • You must prove that your child’s injuries were due to the doctor’s negligence. To do this, you’ll need medical experts who can establish what the medical standard of care is and whether your healthcare provider fell below the standard.
  • You’ll need to gather substantial evidence, such as medical records and witnesses, to establish what happened.
  • You’ll have to apply a nuanced understanding of your state’s laws and statute of limitations to make sure you are taking legal action in a timely fashion.
  • You’ll need experts who can help establish the compensation you’re entitled to through a birth injury lawsuit to cover the cost of medical expenses and life care for your injured child.

Second, birth injury lawsuits tend to be quite expensive, given expert witness fees and other legal costs.

In short, they are not cases to pursue without consulting an attorney. Many birth injury attorneys provide free initial consultations to learn about your case and work on a contingency fee basis, meaning there are no upfront legal costs, and you don’t pay unless you win the lawsuit.

Out of 100 cases, we maybe take one. But we always promise that we’ll get the answer to what happened for those we investigate… If you can make [a client’s] life easier, the bond that develops… it’s incredible. You really go through a lot together.

Marilena DiSilvio

Understanding Birth Injuries

A birth injury is any physical harm that an infant suffers during or immediately following the birthing process.

Causes of birth injuries include prolonged labor resulting in fetal distress, failure to monitor vital signs, and improper use of medical instruments such as forceps. These factors can result in common birth injuries such as brain damage due to lack of oxygen, cerebral palsy, spinal cord injuries, and brachial plexus injuries resulting in Erb’s palsy.

Some birth injuries are minor and can be resolved relatively quickly with medical care, while others are more severe and can have long-term impacts on the health of the child or mother. Regardless of their severity, birth injuries are extremely stressful and traumatic for the families involved.

How Birth Injury Lawyers Approach a Case

Marilena DiSilvio represents families whose child suffered an injury during birth due to medical malpractice. As a birth injury attorney, she draws on her background as a neonatal intensive care unit nurse to understand and explain to clients and juries the medical complexities of these cases.

Not all of her clients have a viable legal claim, yet DiSilvio feels she can offer help. Sometimes, people just call because they want to know what happened. “Out of 100 cases, we maybe take one. But we always promise that we’ll get the answer to what happened for those we investigate,” she says.

“For instance, there may not have been negligence—or there may have been negligence, but that’s not the cause of the injury. You may have had a labor that wasn’t managed well, but the injury occurred in utero and had nothing to do with that.”

In Ohio, where DiSilvio practices, you can initiate a birth injury negligence claim from a child’s date of birth until they’re 19 years old. The extended statute of limitations means that DiSilvio has people reach out to her at various points, although she acknowledges that, typically, “they’re so overwhelmed by the injury that the phone call may not come right away.”

In other states, statutes of limitations are shorter and have various exceptions, making it all the more urgent to contact an attorney as soon as possible.

What Must Be Proven in a Medical Malpractice Lawsuit

Legal recovery for medical malpractice requires proof that both negligence occurred and that the negligence was the cause of the injury. DiSilvio views it as in her clients’ interest not to bring a personal injury case that won’t be won. “You don’t want your client going through that emotional roller coaster,” she says.

When she does file a lawsuit against medical professionals, DiSilvio’s goal is to ensure that the family receives enough to care for the child for their entire life.

“Where the injury is significant, there is permanent, prolonged, devastating neurologic injury. And as these kids grow older, it’s really tough for mom and dad to get them into the bathtub, to get them from the car to the wheelchair. And parents really worry about what happens when they’re gone.”

In order to determine what the family’s needs are, DiSilvio relies on assessments from life care planners, who conduct thorough analyses of both current and future care needs. “We figure out what dollars are needed to fund that life care plan,” she says.

The Benefits of Consulting a Medical Malpractice Attorney

Having an experienced birth injury attorney will help your case in many ways. They will:

  • Understand your state’s birth injury laws, the statute of limitations, and court procedures;
  • Know what medical experts are needed to establish medical negligence;
  • Know how to gather evidence of medical negligence;
  • Be able to evaluate the severity of the birth injury;
  • Help assess potential compensation through a lawsuit; and
  • Provide legal advice and guidance throughout the entire process.

Ultimately, DiSilvio feels gratified and privileged to work with her clients.

“If you can make their life easier, the bond that develops… it’s incredible. You really go through a lot together,” she says. “I still get pictures from the first family I ever represented on a birth injury case. When I say it’s my privilege, that’s not lip service: I feel like I’ve come full circle to what I was doing when I was nursing.”

Find an Experienced Attorney in Your Area

If you need to discuss a birth injury claim, find an experienced and reputable medical malpractice attorney in your area. 

Many birth injury attorneys and personal injury law firms provide free consultations to learn about your potential medical malpractice claim. In addition to free case evaluations, many personal injury lawyers work on a contingency fee basis, meaning you only pay if you win your medical malpractice case.

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

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