Preparing for a Birth Injury Lawsuit: What You Need to Know
Know how to prove liability, who to sue, and how long you have to file a lawsuitBy Canaan Suitt, J.D. | Last updated on May 1, 2023
Use these links to jump to different sections:
- What’s the Difference Between Birth Injuries and Birth Defects?
- How Do You Prove a Birth Injury Claim?
- Who Can You Sue for Birth Injuries?
- When Can You Sue for Birth Injuries?
- Get Your Questions Answered by an Experienced Attorney
A birth injury “is an injury to a baby or a mother, either during pregnancy, childbirth, or after birth in the neonatal period,” says Michigan personal injury lawyer Emily Grace Thomas.
Birth injuries can result in substantial medical expenses, permanent disabilities, and a lower quality of life for the child or mother. When birth injuries are due to the medical errors of doctors or nurses, parents can bring a medical malpractice claim to recover damages.
You probably have many questions if you’re considering legal action for birth injuries:
- Who is responsible?
- How do I prove what happened?
- How do I file a lawsuit?
- What financial compensation can I get?
This article will help you understand who could be liable for your child’s birth injuries and what generally must be proven in these cases. It will also point to further legal help—birth injury claims can be very complicated, so it’s best to speak with an experienced birth injury attorney as soon as you can.
What’s the Difference Between Birth Injuries and Birth Defects?
Birth defects are things “that [occur] in utero… such as congenital or genetic anomalies,” says Thomas. Birth injuries, by contrast, are injuries caused to an otherwise healthy child during or after delivery.
Birth injuries are sometimes unavoidable, no matter how careful the physician is. However, many result from mistakes that could have been avoided had medical professionals used the proper standard of care.
Common types of birth injuries include:
- Fractures or nerve damage resulting from the improper use of forceps and other medical equipment
- Injuries resulting from fetal distress, including brain damage
- Cerebral palsy
- Erb’s palsy resulting from brachial plexus injuries
- Injuries from performing a C-section when not needed or not performing a C-section when needed
Learn more about the difference between birth injuries and birth defects.
How Do You Prove a Birth Injury Claim?
Birth injury lawsuits are a type of medical malpractice claim.
To win a medical malpractice case, you must prove a doctor was negligent and the doctor’s negligent actions are what caused the injuries. There are four elements to a medical negligence case:
- Duty of care
- Breach of duty
The duty of care means doctors and other medical professionals are expected to act according to generally accepted medical care standards.
When a doctor’s actions fall below the medical standard of care, they have “breached” their duty. If the doctor’s failure to act with appropriate care causes your injuries, you can get financial compensation, known as “damages.”
Learn more about the standard of care in medical malpractice lawsuits.
Who Can You Sue for Birth Injuries?
Depending on the facts of your situation, medical doctors may not be the only parties who are responsible for birth injuries.
“Usually, the hospital, doctors, or nurses can be defendants,” says Thomas. “Many medical professionals are agents of a hospital, so that’s often why the hospital is also a defendant. The hospital also has a duty to hire people who are trained to provide good care. It gives [doctors and nurses] privileges to practice in the institution, and that’s why the hospital is ultimately responsible for the actions of its agents if they cause harm to patients.”
Of the parties who could be liable, how do you know who to sue? Part of the complexity of birth injury cases is determining liability. Responsible parties may include:
- Medical equipment manufacturers
- Pharmaceutical companies
- Other health care providers
It’s best to speak with a lawyer about your specific case, explaining the injuries and how they happened. A lawyer will be able to assess your situation and bring a lawsuit against all parties.
When Can You Sue for Birth Injuries?
Every state has a law called a statute of limitations that sets the time limit for filing a lawsuit. These laws are critical—if you miss the deadline, you’re barred from filing a lawsuit in the future. You won’t be able to get compensation.
“Statutes of limitations on birth injury cases [vary] from every state in the Union,” says Thomas. For example, “There are some states that have really short time frames. Louisiana is one year. Michigan is the tenth birthday. Illinois is eight years from the date of the malpractice,” she says.
“On the other extreme… Ohio has the nineteenth birthday as the statute of limitations, which means you can wait until you’re eighteen and an adult and can make decisions for yourself. Then you get a year beyond that to decide if you can file a claim.”
Birth injury cases are “mostly state claims,” says Thomas. However, “if the provider who made a mistake is federally funded in any way (such as a federal clinic or military hospital), then that is a federal tort claim. These claims require that special notice be sent to the government within two years from the date of the malpractice,” she says.
Knowing your state’s statute of limitations for medical malpractice is essential, so you don’t miss the opportunity to sue.
Get Your Questions Answered by an Experienced Attorney
“If you have any questions, you shouldn’t hesitate to ask,” says Thomas. “It’s worse to contact a lawyer years later and find out you [didn’t ask] when you had the opportunity to.”
“It’s hard because it’s a period of chaos, especially when you have a child or a mother that’s been injured. You’re dealing with so much,” she says. “Don’t wait to ask if you suspect something is wrong because you could be time-barred” by your state’s statute of limitations, she says.
“And ultimately,” says Thomas, “it’s not us as attorneys who are going to decide if you have a case. We have medical experts we work with who will help determine if the medical care was appropriate.”
“Lawyers would rather answer your questions now than have you wondering later if something could have been done to prepare for your loved one who now has a disability for their future,” she says.
Get the Ball Rolling: Questions When Meeting a Lawyer
Many birth injury attorneys provide free consultations. These free case reviews give you insight into your legal claims and help you decide if the attorney or law firm meets your needs.
To get the most out of a consultation, ask informed questions such as:
- What are your attorney’s fees?
- How do you bill for your legal services?
- Do I have a birth injury or birth defect claim?
- What is the statute of limitations or amount of time for filing a birth injury lawsuit in my state?
- Does my state set caps on medical malpractice damages?
- How likely is a settlement before going to trial?
Once you have met with a birth injury lawyer and gotten your questions answered, you can begin an attorney-client relationship.
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