Medical Malpractice
No parents are ever really prepared for a child who is disabled by a birth injury. Finding out that your new baby was injured during childbirth and may be permanently disabled is not something for which you plan.
If you suspect that your child’s birth injury may have been the result of a mistake by the doctors, you will need to make a decision about whether to pursue legal action. Below are a number of frequently asked questions about birth injury lawsuits.
What Is the Difference Between Birth Injuries and Birth Defects?
Birth defects are conditions that your baby inherits through genetics. A birth injury is a condition that is caused by something that happens during labor and delivery that causes trauma to the baby. From a birth injury litigation standpoint, you cannot sue for birth defects. But you often can sue for birth injuries during pregnancy or labor and delivery.
How Do I Know If My Baby’s Birth Injury Was Caused by Medical Negligence?
This can often be a difficult question to answer. Don’t expect the doctors or hospital staff to come forward and say, “Sorry, but we made a mistake and may have injured your baby during delivery.” That is very rarely going to happen. In fact, sometimes you might take your baby home from the hospital without even realizing that an injury occurred during delivery. It might take weeks or months before the signs of the injury and resulting condition become apparent.
In any event, once you know for sure that your baby was injured during delivery you still probably won’t be sure if the doctors or staff are at fault. The reality is that in most cases you will need to take the first step towards a birth injury lawsuit before you actually know for sure if medical negligence occurred.
If you reasonably suspect that the doctors made a mistake or were negligent in anyway, you should go ahead and consult with a birth injury attorney. A birth injury lawyer can investigate your case and help determine whether medical negligence may have occurred. The consultation won’t cost you anything one way or the other.
How Long Can I Wait Before Deciding to Take Legal Action for a Birth Injury?
Once you suspect that you child’s birth injury may have been caused by medical negligence, the clock starts running on your deadline to file a lawsuit. Every state has a statute of limitations which requires lawsuits for birth injuries (and other malpractice cases) to be filed within a certain time frame.
In most states, the limitation period for filing medical malpractice cases is either 2 years or 3 years. The period typically starts to run when you know or should reasonably know that you may have a claim for malpractice that would trigger further investigation. Most typically, this is the date the child is born.
The exact date when the statute of limitations period begins can be a complex legal issue so you should consult with an attorney before making any assumptions. If you don’t file your medical malpractice claim before the limitation period expires, you will be legally barred from filing it.
You may have been told or heard that you have additional time to file on behalf of a minor. But the parents also have claims in birth injury cases and their statute of limitations may be much shorter.
What Is the First Step in a Birth Injury Lawsuit?
If you are seriously thinking about a birth injury lawsuit, your first step in that process should always be a consultation with a birth injury attorney. An experienced birth injury attorney can tell you whether or not you might have a valid case. Then your attorney can collect and review all of the required medical records and send them out to an expert witness (another doctor) for a formal opinion.
How Long Do Birth Injury Lawsuits Take?
Not surprisingly, there is no universal answer to this question because it all depends on the circumstances of your individual case and how things play out. Some cases might settle very quickly, before a lawsuit is even filed. The time frame for these type of quick settlement cases can be as short as 4-8 months. If your case does not settle right away your birth injury lawyers will file a lawsuit in court. Once a case gets to that point it probably will not settle until after the process of pre-trial discovery. Depending on the complexity of the case the discovery phase can last anywhere from 6 months to over a year. If the case actually goes to trial it could easily take another year before the trial gets scheduled and completed.
Can I Sue for Emotional Distress in a Birth Injury Case?
In many birth injury cases, the emotional impact on parents can be profound. If you or your spouse has suffered significant emotional distress due to a birth injury to your child, you may be eligible to sue for emotional damages. This can include compensation for mental anguish, depression, and anxiety resulting from the traumatic experience of a birth injury.
The rules for such claims vary by state, so it’s essential to discuss your specific situation with a qualified birth injury attorney who can advise you based on your jurisdiction. The one thing that families sometimes find it hard to understand is that that best way to focus on maximizing the settlement amount of a birth injury lawsuit is to put the focus on the future costs, which can quickly come to tens of million of dollars. Juries are more eager to award these damages than the awful emotional suffering of the parent and the child. It does not mean you do not make these claims. We are talking about the focus for settlement and, if necessary, at trial.
What Should I Look for in Choosing a Birth Injury Lawyer?
Selecting the right attorney for your birth injury lawsuit could be the most important financial decision your family ever makes. The stakes are that high. Look for a birth injury lawyer with specific experience in these specific cases. Check their track record for similar cases and ask about their experience in trials versus settlements. This may require you to ask the attorney some uncomfortable questions. Ask them anyway. It is that important.
Additionally, and this is a big deal, choose someone who communicates clearly and makes you feel comfortable, as you may be working with them through a long legal process.
What Are the Most Common Types of Birth Injury Malpractice?
Medical malpractice resulting in a birth injury can occur in an endless number of ways or circumstances. Malpractice can result from any type of mistake, poor judgment, lack of diligence or professional skills, etc. However, there are specific types or categories of medical malpractice in the labor and delivery room that commonly result in birth injury.
- C-Section Malpractice: When complications arise during vaginal delivery, performing a timely emergency C-section is often necessary to avoid injury to the baby. Unreasonably delay in failing to perform a C-section is the most common type of medical negligence in birth injury lawsuits.
- Forceps Malpractice: Obstetrical forceps are a tool doctors sometimes use to grip a baby’s head and maneuver them through the birth canal. Use of forceps requires a high level of skill and a mistake can easily injury the baby which leads to numerous birth injury cases.
- Failure to Monitor: Failure to properly use or watch fetal monitoring devices to identify signs of distress gives rise a number of birth injury lawsuits.
- Vacuum Extractor Malpractice: A vacuum extractor, another device used by doctors to assist in moving a baby through the birth canal, can cause a number of avoidable birth injuries if used with excessive force or too frequently.
How Much Money Can You Get in a Birth Injury Case?
If you are considering a birth injury lawsuit, it is only natural to consider how much money you could potentially expect to get if you succeed in settlement amount or jury payout.
This is your child and your family’s one chance to be compensated for the harm that has been done. It is impossible to accurately predict or estimate exactly how much your case might be worth. But the largest verdicts in medical malpractice cases are birth injury cases. The value of these cases can go north of $50 million in some cases.
You can look at sample verdicts and settlements in specific types of birth injury cases to get some information on how successful case can resolve.
- Brachial plexus
- Bradycardia and fetal distress
- Brain bleeds
- Brain ischemia
- Caput succedaneum
- Cephalohematoma
- Cephalopelvic disproportion
- Cerebral palsy
- Delayed C-section
- Erb’s palsy
- Fetal macrosomia
- Forceps errors
- Herpes encephalitis
- Hydrocephalus
- Hypoglycemia
- Hypotonia
- Intrauterine growth restriction
- Kernicterus
- Meconium
- Neonatal stroke
- Periventricular leukomalacia (PVL)
- Pitocin misuse
- Placental abruption
- Preeclampsia
- Uterine rupture
Contact the Birth Injury Attorneys at Miller & Zois
If you are considering a birth injury lawsuit you need to consult with an experienced attorney. The lawyers at Miller & Zois have delivered meaningful results to clients in hundreds of birth injury cases. Call us today at 800-553-8082 or get an online case evaluation.