Birth Injury Legal FAQs

Birth injuries may happen because of complications that naturally occur during pregnancy or childbirth. For example, a baby may face certain risks during a difficult labor, a breech birth, a premature birth, or a post-term pregnancy. However, some birth injuries happen because of medical errors during pregnancy or childbirth. Sometimes these errors cause injuries that would not have occurred otherwise. In other cases, they may contribute to pre-existing complications or increase the risk of complications.

Common medical mistakes during pregnancy and childbirth include failing to diagnose a health condition or failing to treat a condition appropriately once it has been diagnosed. A doctor also may fail to regularly monitor a mother and a child for certain known risks, or they may fail to carefully review the medical history of a mother. After a patient undergoes a procedure, a doctor may fail to follow up to resolve any complications that arise. Even if a doctor eventually corrects their mistake, serious harm may result from a delay that should not have occurred.

No, cerebral palsy cannot be cured. Doctors have developed many treatments for this condition, though, such as physical, occupational, and speech therapies. Depending on their specific situation, a child also may receive medications to relieve their symptoms or sometimes undergo surgery. Assistive devices also can help a child with cerebral palsy improve their quality of life and adapt to the limitations of their condition.

You can sue any health care provider who was at fault for harming your child. This means that they did not meet the professional standard of care that applied to the situation. The professional standard of care consists of the practices accepted in the medical field of a health care provider. In some cases, a family might be able to sue a hospital or other entity. They would need to show that the entity employed a health care provider whose errors caused birth injuries, or that the entity should not have allowed the health care provider to work there.

You must sue for a birth injury within the time provided by the statute of limitations in your state. The statute of limitations for injuries to children may be different from the statute in other personal injury cases. Sometimes children have a longer time to sue, or sometimes the statute extends until a child reaches a certain age or starts running when a child reaches a certain age. Many states also apply a discovery rule, which provides a separate time window based on the date when the injury was discovered, rather than the date when it occurred.

A medical expert will explain the standard of care that applied to a certain health care provider in a specific situation. The field of medicine is highly technical and specialized. Thus, jury members and judges likely could not understand the standard of care on their own. A medical expert also can identify the errors that violated the standard of care, and they can describe how those errors caused birth injuries.

You can get compensation for treatment costs, such as medications, therapies, surgeries, and assistive devices. If your child suffers from a permanent disability, you can get compensation for reasonably necessary future treatment costs. A child also can receive damages for non-economic harm like pain and suffering. Sometimes parents can pursue damages for their own losses, such as lost wages if they need to take time off from work to care for a child with special needs.

You should think carefully before taking a settlement in your birth injury case. You have only one chance to bring a claim, since a settlement usually involves releasing any remaining legal rights related to the injuries. The first settlement offer may not properly account for all the costs associated with an injury, especially if it involves a permanent disability. Most birth injury cases eventually settle, but you should be aware that you can settle at any time before trial. Thus, you should not feel pressured to take the first offer.

Yes, you probably need an attorney for your birth injury case. These lawsuits involve many distinctive rules that an ordinary person might struggle to navigate. For example, a plaintiff often needs to provide an affidavit of merit from a medical expert with their initial complaint. This involves hiring a qualified doctor to review the records and provide an opinion confirming malpractice. Attorneys are better positioned than ordinary people to retain medical experts. Also, the defendant doctor or hospital likely will retain sophisticated defense attorneys. A family should hire their own attorney to level the playing field.

Usually, it costs nothing up front to hire a birth injury lawyer. Attorneys who handle these cases work on a contingency fee basis, which means that they get paid for their services only after obtaining compensation for a client. The attorney receives a set percentage of the settlement or verdict award. A representation agreement may make a client responsible for paying certain costs outside attorney fees. However, they likely would need to pay costs such as service fees, document copying fees, and expert witness fees even if they did not hire an attorney.