Birth Injury Lawsuit FAQs
Birth injury cases can be complicated. The Birth Injury Center answers the most pressing birth injury lawsuit questions and explains why it is in your best interest to enlist the help of a qualified attorney.
- Last Updated Date: September 22, 2023
You may have the right to recover compensation if your child was injured at birth because of medical error or medical negligence. The claims process can be anything but easy, and you probably have questions.
The Birth Injury Center has taken the time to provide the information and guidance you need. If you have additional questions or want to learn more, don’t hesitate to contact us to arrange a free, no-obligation case evaluation with a skilled birth injury attorney.
What is a birth injury lawsuit?
A birth injury lawsuit is a type of legal action that seeks damages for the medical error or negligent act of the liable party that caused your baby to sustain injury before, during, or after birth. Most birth injury lawsuits fall under medical malpractice.
In a birth injury lawsuit, a family can seek compensation for economic and noneconomic damages related to a child’s birth injury.
Why should I file a birth injury lawsuit?
You may be eligible to file a birth injury lawsuit if your baby has suffered an avoidable injury during pregnancy, during birth, or immediately following birth because of a medical professional’s mistake or negligence.
By filing a lawsuit, you can accomplish two things. First, you can recover compensation to cover the costs of your child’s birth injury and treatment. Second, you can force the responsible party to take accountability for their consequences. Additionally, your lawsuit could help protect other children from similar harm.
What is the birth injury lawsuit process?
The birth injury lawsuit process begins with insurance. Depending on your state’s laws and procedural requirements, you will likely have to notify the negligent health care provider and/or hospital that you intend to file a claim for damages shortly after your baby is injured at birth.
Demand Letter & Negotiations
Once you have provided notice of the injury, your attorney will prepare a demand letter. This formally requests compensation with evidence and facts that support your allegations. Since a birth injury case is a type of medical malpractice claim, you will generally have to include an affidavit from a medical professional substantiating the child’s injury.
Once the demand letter is received, the insurance company will have to respond by the requested deadline. They can pay the claim, deny the claim, or extend a counteroffer.
You may negotiate back and forth to find a mutually agreeable settlement amount, accept a settlement amount, or reject an unjust offer and bring your case to the next stage in the process. If a settlement can’t be reached or a hospital or insurance company denies your claim, you can file a lawsuit.
Lawsuit & Trial
Your lawsuit must be filed with the appropriate court within the set timeframe known as the statute of limitations, which is dictated by state law. In addition to filing your claim with the court, you must serve a copy to all defendants.
Once the lawsuit is filed and served, the court will set a trial date, and discovery will begin. Discovery is an opportunity for both parties to gather evidence and seek information relevant to the case.
The discovery phase can include interrogatories, depositions, admissions requests, documents, and subpoenas. Depending on the case’s complexity, discovery can take anywhere from a few months to more than a year.
Both parties have the right to file motions with the court and request hearings before the judge. These typically attempt to have a case dismissed or evidence compelled or excluded.
When discovery has been completed, and all motions have been exhausted, it is time for trial. At trial, the plaintiff and defendant (and their attorneys) can argue their sides of the story, examine (and cross-examine) witnesses, present evidence, and persuade a jury to side with them.
Parties can, and often do, continue to negotiate while the trial is going on. A settlement can be reached until a jury reads a verdict. If no settlement is reached, the jury’s decision will be final and binding unless the decision is appealed.
How much does it cost to file a birth injury lawsuit?
Birth injury lawyers generally work on contingency, which means their fee depends on the outcome of the birth injury case. Your attorney will cover the costs related to litigation, including filing fees, expert fees, and administrative expenses. You will only pay when your birth injury lawyer wins your case (through a settlement or verdict).
Expenses and fees related to your case will be deducted from your financial recovery, as will your attorney’s fee, which is agreed upon before representation begins. Generally, you can expect to pay your attorney between 30 and 40 percent of your financial award.
When should I file a birth injury lawsuit?
A birth injury lawsuit must be filed within the time frame established by your state’s statute of limitations. This is generally between two and four years after a birth injury, depending on where you live. In some states, the statute of limitations can be as long as ten years.
Many states extend the statute of limitations in birth injury cases. You may have until your child reaches a certain age or until a specific time after the injury is discovered.
Other states have a statute of repose, which limits the time you have to file a birth injury lawsuit—even if the injury hasn’t been discovered yet.
The critical component to know is this: You have a limited time to file a birth injury lawsuit and will be barred from recovering compensation if you miss the deadline that applies to your case. Contact us today to speak with a qualified birth injury attorney about your case.
What damages can I pursue in a birth injury claim?
Generally, plaintiffs can seek two types of damages in a birth injury claim: compensatory and punitive.
Compensatory damages are awarded to account for the financial costs of a birth injury (economic) and the distress and changes that a birth injury can cause (noneconomic). Examples include:
- Present and future medical bills
- Medical devices and equipment
- Physical, occupational, and speech therapies and other types of rehabilitation
- Reduced earning capacity
- Disability
- Travel expenses for hospital and doctor visits
- Other out-of-pocket expenses
- Pain and suffering
- Emotional distress
- Disfigurement and scarring
- Reduced quality of life
- Embarrassment
Punitive damages are awarded only in cases where a medical professional’s conduct was intentional or representative of a conscious disregard for a child’s safety. Laws on punitive damages—standards and when they are permissible—vary from state to state.
How long does a birth injury lawsuit take?
A birth injury lawsuit can take a year or more, especially if you want to maximize your financial recovery. You can opt to accept a settlement early on in the process, but that can often do more harm than good. At the very least, you may want to wait until the full scope of your baby’s injury is understood.
Accepting a settlement will waive the right to recover additional compensation in the future. If you accept less than your case is worth, you will be left without recourse for additional costs in the future.
Factors that can influence how long it takes to resolve a case include the willingness of both parties to negotiate, how clear-cut the liability is, and the extent of the child’s injuries and trauma. The more complicated a case, the longer it can take to resolve.
An experienced birth injury attorney will work hard to ensure your case moves swiftly while still advocating to recover the full amount of damages you can receive under the law.
Who is liable in a birth injury lawsuit?
Anyone who directly or indirectly contributes to your child’s birth injury can potentially be liable in a lawsuit.
After a thorough investigation, your attorney may determine that one or more of the following parties are at fault:
- Obstetrician (OB-GYN)
- Attending physician during delivery
- Surgeon who performs a C-section
- Anesthesiologist
- Nurses, physician assistants, and other members of the medical team
- Medical facility or hospital
- Manufacturer of a defective or unreasonably dangerous piece of equipment used during labor or delivery
Seeking compensation from all responsible parties can ensure you are awarded the compensation you need to help your child recover and cope with their birth injury.
What is a birth injury settlement?
A birth injury settlement is a private financial agreement between a plaintiff (injured child and family) and a defendant (negligent medical professional and/or facility). The terms of a settlement are final and binding when both parties sign.
The defendant will also have you sign a waiver for future claims when you sign a settlement. This means you will ultimately release them from responsibility for any further damages related to the case.
What is the average amount of a birth injury settlement?
Birth injury cases have no average settlement. Every situation is unique–your child’s injuries and experience will vastly differ from others. The way each child’s injuries affect their ability to live, work, and enjoy their life will be distinct to them.
While there is no average, you can get a sense of how much money you would receive in a birth injury settlement by establishing the following.
- What type of birth injury did your child sustain?
- What is their prognosis?
- Will their birth injury affect their life expectancy?
- How will their birth injury impact their ability to work and earn a living?
- Will your child require rehabilitation, therapy, and ongoing medical care? If so, for how long?
- Is your child likely to experience emotional distress, mental anguish, or embarrassment because of their birth injury?
The more significant the impact your child’s birth injury has on their life—and the more expensive the treatment—the more a related birth injury case will be worth. An experienced birth injury lawyer can help ensure your settlement reflects the full value of your case and covers the damages your family will endure.
What affects birth injury settlement amounts?
Many things can affect the amount of a birth injury settlement, including:
- Liability: Is it clear-cut or contested?
- Injuries: What types of injuries did your child suffer, and what impact will those injuries have on their life?
- Evidence: Does sufficient evidence prove that the birth injury was caused by a medical error or act of negligence?
- Out-of-pocket costs: What verifiable financial costs can the family expect to have because of the child’s birth injury?
- Eagerness to settle: Are you willing to wait for a potentially higher settlement through negotiations, or do you want a quick payout?
Don’t underestimate your choice of an attorney regarding what you can get in a birth injury settlement. Medical facilities, hospitals, and insurance companies would much rather deal with a victim than an experienced litigator. They handle claims like yours all the time, so they start with the advantage. You can change that by enlisting the help of a qualified and reputable birth injury attorney.
Choosing a tough negotiator for a lawyer, someone who is unafraid of the courtroom, can be your best option. That will show other parties you are serious about maximizing your recovery. The hospital or insurer may opt to extend a high-value settlement to avoid a showdown in front of a compassionate jury.
Who pays out a birth injury lawsuit settlement?
It depends on who is liable. Generally, a doctor’s medical malpractice insurance company will be responsible for paying damages awarded in a birth injury lawsuit settlement. However, you can also establish that other parties are at fault—including the hospital or facility where the doctor works—and seek compensation from their insurance carriers.
If insurance doesn’t pay or if your damages exceed policy limits, you can pursue compensation from the negligent doctor (or other responsible parties) directly through a personal injury lawsuit.
Are there limits on the amount of recovery against a doctor or hospital?
There can be. It depends on the laws of your state. Many states have imposed limits on financial awards in medical malpractice (and, therefore, birth injury) cases. Your birth injury lawyer will identify potential limitations to recovery and seek damages up to the state maximum.
When will I receive money from a birth injury settlement?
Once you have signed a settlement agreement, the insurance company will have limited time to cut a check. This varies by state, but it is typically about 30 days. The settlement funds will go to your attorney, who will hold them in trust.
At that time, medical liens and other debts will be paid. Your attorney will also take their fee out of the award. Once all debts have been satisfied, and all bills have been paid, you will receive your birth injury settlement.
How do I know whether the doctor is responsible for my child’s birth injury?
Doctors are held to high standards, and the specific standard depends on the state where you live. According to the American Bar Association, it is generally accepted that the standard applicable in medical malpractice (and birth injury) cases is whether the liable party’s “actions followed standard medical practice or fell below the accepted standard of care.”
Would a different doctor with similar credentials and training have handled your child’s birth differently? Were your doctor’s actions unreasonable?
If you answer “yes” to these questions, the doctor may be responsible for your child’s birth injury.
In a birth injury lawsuit, you will have to prove:
- A doctor-patient relationship existed, which means a duty of care was owed to your child
- The doctor breached this duty of care by failing to provide the standard of care expected of them
- The doctor’s actions (or failure to act) caused your child’s birth injury
- Your child (and your family) suffered damages as a result
Your experienced birth injury attorney will carefully investigate your child’s trauma, gather evidence, and work to build a case that proves by a preponderance of the evidence that the doctor caused your child’s birth injury.
What are the common types of birth trauma and delivery injuries?
Birth injuries and trauma during delivery that may give rise to a personal injury claim include:
- Cerebral Palsy
- Erb’s Palsy
- Spinal cord injury
- Jaundice
- Kernicterus
- Hypoxic-Ischemic Encephalopathy
- Hydrocephalus
- Newborn Cephalohematoma
- Caput succedaneum
- Fractures
- Brachial plexus injuries
- Shoulder dystocia
- Placenta accreta
- Intrauterine Fetal Demise (wrongful death of a child)
Contact us for immediate assistance if your child has suffered these or other birth injuries.
What are examples of errors that occur in the delivery room?
Delivery room errors that can result in a birth injury include:
- Prolonged delivery
- Failing to monitor a child before, during, and after birth
- Failing to perform a timely C-section
- Vacuum delivery complications
- Forceps delivery complications
- Errors in administering medication
- Failing to identify and treat an infection
What kinds of situations give rise to a lawsuit for a birth injury?
Any mistake can potentially cause trauma and, in turn, change the course of a child’s life forever. If you believe a mistake was made before, during, or immediately after your child’s birth, reach out to the Birth Injury Center today.
We will listen to your story, assess your legal options, and help you understand your rights. We offer a free consultation and are here to help you navigate this challenging time.
Written by:
Birth Injury Center Team
The Birth Injury Center aims to create informational web content and guides to help women and their families seeking support and guidance for birth injuries caused by medical negligence. All of the content published across The Birth Injury Center website has been thoroughly investigated and approved by medical expert Natalie Speer, RNC-OB, Attorney Ryan Mahoney, and Attorney Rick Meadows.
