A birth injury lawsuit is a type of medical malpractice claim to recover damages caused by a medical error. The amount of time a birth injury lawsuit takes depends on many factors but could range from a few months to a few years. Lawsuits are generally shorter if the family and hospital reach a settlement agreement. However, taking the case to a jury can take years.
Birth injuries can be difficult for families to face. However, it may be even more tragic to learn that the injury was preventable and caused by the carelessness of the doctor or hospital. It can be even more frustrating when the hospital does not offer any answers and refuses to take responsibility for their actions. In this case, a birth injury lawsuit may be the best option.
Birth injuries cause damage or disabilities to the child because of a doctor’s negligence. If a doctor, hospital, or healthcare professional fails to provide the standard level of care that causes an injury, it may be a case of medical malpractice. Medical malpractice gives the injury victims a cause of action to recover compensation in court.
Damage caused by a birth injury can include temporary injuries, permanent damage, fatal errors, and injury to the mother. The costs of dealing with a birth injury can be astronomical, especially when the family faces years of medical expenses, around-the-clock care, and limited options for the child’s future. The parties responsible for causing the injury should be held accountable for their actions.
Finding Out About a Birth Injury
The first factor in calculating a birth injury lawsuit timeline involves when the family finds out about an injury. Some birth injuries are immediately known, this includes traumatic injuries or fatal delivery errors. However, other mistakes happen during pregnancy, during labor, or just after delivery that cause damage that may not be obvious at the time.
Birth injuries that happen when the baby is still in the womb, or in utero, often go unnoticed until after delivery, or even much later. It may be unclear to the mother when the damage occurred. In utero injuries may involve failure of the doctor to administer the proper tests, diagnostic errors, or improper drug administration.
Some of the most common birth complications occur during delivery. This is a difficult time when the baby needs to transition from being supported through the placenta and umbilical cord to surviving outside the mother’s body. Birth complications that delay delivery can cause injuries, including a lack of oxygen. When the baby’s oxygen supply is limited, it can cause hypoxic-ischemic encephalopathy (HIE). HIE can be caused by:
- Acute maternal hypotension
- Traumatic birth
- Uterine rupture
- Placenta previa
- Abnormal birth position
- Anesthesia errors
- Premature birth
- Delayed C-section
- Nuchal umbilical cord
- Prolapsed cord
Even if the parents recognize that something might have gone wrong during delivery, the doctor may have made it seem like “everything is okay,” and tell you not to worry. The baby may seem totally normal at that point. However, as with many brain injuries in babies, it may take months or years before parents realize that something is not quite right.
Developmental delays are indicators that a child may have an underlying physical or medical problem that causes them to develop more slowly than their peers. One of the common causes of global developmental delay is brain injuries sustained during birth. The guidelines for development have regular milestones, starting at about 2 months of age. Other milestones come at 6 months, 9 months, 12 months, and 18 months.
During this period, parents may finally get a clearer indication that their child may have a condition that impairs development. Some kids develop more slowly than others so each milestone is not necessarily an indication of a brain injury. However, for many parents with an injured child, development is delayed across the board and may even be more pronounced as the child gets older.
Delayed physical and cognitive function may help a parent start to realize that something might have happened during pregnancy or delivery. Often a parent suspects something was not quite right but without any evidence, they explain away their concerns. Witnessing the physical manifestation of impairment can help them connect the injury back to the date of malpractice. This is when many parents start to ask questions about holding the doctor or hospital liable for damages.
Long-Term Damages After Birth Injury
Another reason why birth injury lawsuits take a long time is because it is not entirely clear how much damage was caused and the cost of the injury to the child and family. Some children will recover from their birth injury to lead a normal life. In those cases, the damages may be temporary and not include long-term costs. However, more serious or permanent birth injuries may require life-long care.
Medical expenses can make up a large portion of the total damages in a birth injury lawsuit. Medical care is expensive in this country. Even with insurance, a single medical procedure can cost tens of thousands of dollars. Serious injuries caused by medical malpractice can leave the family hundreds of thousands of dollars in debt, even when the victim is still a child.
Something a lot of parents underestimate when they accept a settlement offer too early is how much care the child will require in the future. As the child grows, their healthcare needs may change. Physical conditions may require regular updates to things like wheelchairs, prosthetics, home modifications, and mobility devices.
Something that is difficult to think about is what happens to the child after the parents are no longer able to provide care. For many children with a birth injury, one or both parents are the primary caregivers. At a certain age, the parents may be unable to care for their special needs adult child. The child may need to live in a residential care facility if they are not able to function independently. It is important to take this into account when planning for the child’s future needs.
Loss of Opportunities
When an adult is permanently injured in a medical accident, it may be easier to calculate their lost wages and future loss of income. How can you calculate the loss of future income for a child who never had the opportunity to get a job? It is not the child’s fault that a doctor made a tragic error and left them incapacitated. If not for that mistake, the child could have had a full life. Expert witnesses can show the jury estimates of the lifetime worth of being able to work and earn a living, based on statistics and probabilities.
Time Limits to File a Birth Injury Claim
Birth injury lawsuits may also be limited by the statute of limitations. The statute of limitations is the time limit each state has to file a lawsuit. Medical malpractice statutes of limitations vary by state. Most personal injury lawsuits have a time limit of about 2 years or so, depending on the state. However, it seems impossible to limit a child to a 2-year statute of limitations when they were injured at birth.
It is important to talk to an experienced birth injury malpractice attorney as soon as you suspect a medical error or injury. The time limit in your state may be much shorter than you expect. If you file your claim even one day late, it may be too late to recover anything. A court could deny your claim, leaving you with nothing. This is why it is imperative to reach out sooner rather than later.
The statute of limitations for a birth injury may be based on when the child reaches a certain age. For example, in Pennsylvania, there is a 2-year statute of limitations for medical malpractice claims. If the victim is a minor, the time does not start to run until the child turns 18. For most birth injury cases, the victim might have until age 20 to file a medical malpractice claim.
In Maryland, there is a 3-year statute of limitations from the time a birth injury was discovered or 5 years from the injury. For a birth injury claim, the time would generally not begin to run until the child reaches the age of 11. In most cases, this would mean a child who suffers a birth injury has until the child reaches age 14 to file a lawsuit.
Some states have much shorter statutes of limitations, even for birth injuries. In some states, the statute of limitations is only 1 or 2 years from the date of the injury.
Process of a Birth Injury Malpractice Lawsuit
The process of a civil lawsuit involves extensive litigation. This may seem like it takes a long time but complex litigation often takes years to work out. If you have any questions about the timeline of your case, ask your lawyer. You want an attorney who will clearly explain the process and answer any of your questions along the way.
Filing the Complaint and Pleading
A lawsuit begins with filing a complaint. This has to be delivered, or “served,” upon all the parties involved. The defendants then have a chance to answer. In support of the plaintiff’s case, there may be a deadline to file an affidavit or certificate of merit from a medical professional to say that there appears to be a breach of the standard of care, which may be a minimum standard to file a medical malpractice lawsuit.
Discovery and Record Review
Discovery is the exchange of information between the parties. This includes exchanging paper records, interrogatories, depositions, and independent medical examinations. This can take a significant amount of time, especially if there are a lot of doctors, nurses, and health care personnel involved.
Medical Expert Review
Expert witnesses are used in medical malpractice trials to explain complex medical information to juries. Generally, a doctor in the same medical field is needed to testify as to the performance of the doctor alleged to have committed malpractice. These experts review the records and provide testimony on how they believe the doctor did or did not follow the standards of care and how their actions may have caused the injury.
Each side generally has its own experts. Your attorney will find a medical expert to review your case and testify on your behalf. In response, the insurance company will try and find another expert who disagrees. In these situations, it may be up to the jury to determine which expert they believe.
Medical Malpractice Trial
The trial begins with pretrial motions, where the parties and the judge try to narrow down the issues involved in the case. This may involve motions to suppress evidence or keep expert testimony away from the jury. When these preliminary motions are decided, a jury may be selected. After the jury is seated, the trial may begin. Generally, each side gets a chance to present their side, with the other side having a chance to respond. The trial closes with closing arguments and the jury deliberates to make a final decision.
Even after everything is over, the parties can file an appeal. If you win a large award, the medically negligent doctor is likely to file an appeal, to challenge the decision. This can delay the end of the litigation even more, which can be frustrating for the family. However, if the jury made a mistake and found in favor of the negligent doctor, you may still be able to file an appeal to challenge the jury’s findings. Talk to your attorney about the appeals process.
Settling a Birth Injury Claim
Taking a birth injury lawsuit to trial can take years. However, the reality is that the majority of all personal injury cases are settled before trial. There may be a lot of benefits to settling the case, for both sides. At the beginning of a case, before records and discovery have been exchanged, it may be unclear how much the case may cost the defendants. They may try and offer a low settlement in the hopes that the plaintiff will accept it.
As the case develops, both sides may have a much better idea of how the case may play out. If the doctors and insurance companies think you have a good case, they will be more likely to increase the settlement offer but it may not be enough to cover your anticipated expenses. The closer the case gets to trial, the more likely the case is to settle. Litigation is expensive and can be stressful for the family of the victim. It may be worth taking what you think is a fair offer in order to avoid a long and drawn out trial.
It is important to understand that you have the ultimate authority to decide whether or not to accept a settlement agreement. Your attorney cannot agree to a settlement without your consent. Your lawyer can negotiate on your behalf and your lawyer will likely advise you on what they believe is the best outcome but is up to you to say “yes” or “no.”
Costs of a Birth Injury Lawsuit
Before you start to worry that you don’t have enough money to file a malpractice claim for your child, understand that most malpractice firms will take a qualifying birth injury case on a contingency basis. This means that you may not have to pay anything upfront. The attorney will only get paid if you win your case. With a free consultation, there should be nothing to stop you from getting help for your family after a medical error.
Birth injury medical malpractice lawsuits can be very expensive and take a long time. It may take years to bring a birth injury lawsuit to trial. All along the way, there is a lot of research that needs to be done into the mother’s and child’s medical records, to find evidence of errors and mistakes. Birth injury cases may also involve many medical exams and evaluation of the physical and mental impacts of the injury. Medical malpractice lawsuits also require multiple medical expert reviews.
In addition, the insurance companies and medical centers want to challenge the lawsuit at any given opportunity. This means your legal team will have to deal with every challenge to give you the best chance to recover compensation. Some of the litigation the medical insurance companies may try and use against you include:
- Motion to dismiss
- Motion for summary judgment
- Motion to suppress evidence
- Motion for failure to state a claim
Building up a strong case can take thousands of hours in preparation for your attorneys and the law firm’s administrative staff. This is another reason why you need to find a birth injury law firm with the experience and resources to handle this kind of case. Make sure you ask your prospective attorney about their experience and their ability to take on a big case that could take years to resolve.
Birth Injury Legal Team
At Gilman & Bedigian, we will use our experience, knowledge, and dedication to investigate birth injury accidents caused by medical errors or negligence. Our aggressive trial lawyers have helped our families across the country recover millions of dollars in compensation after a birth injury. Contact us online or call our law office today at (800) 529-6162 for a free consultation.