Do You Have a Birth Injury Case in New Jersey?
By: Cohen, Placitella & Roth @ Aug 22, 2022
Dr. Alan Goldberg and Stewart L. Cohen, Esq.
Imagine this: For nine months, you’ve been carrying your baby inside of you. You’ve consulted with doctors and taken pregnancy classes. Now, labor is behind you, and you finally get to hold your newborn child. But something isn’t right—you discover your child suffers from a birth injury. Naturally, you begin to wonder: How did this happen? Did my doctors and nurses do everything right? Could this be a case of medical malpractice?
Birth injury lawyers can help you discover whether you have grounds for filing a birth injury case in New Jersey. The lawyer analyzes the medical care and circumstances surrounding the birth injury—which could be anything from muscle, bone, spinal cord injury or even cerebral palsy—and, with the help of medical experts, determines whether this is a case of medical negligence.
How to File a Birth Injury Case in New Jersey
How do you know whether your case qualifies for a lawsuit? And how do you get a birth injury case started? Read on to learn more.
Who Files a Birth Injury Lawsuit in New Jersey?
If parents suspect that their baby was injured due to malpractice, they can reach out to medical malpractice attorneys who specialize in handling cases involving birth injuries. Typically, these attorneys know and work with children’s medical health experts to evaluate the medical care and whether the child’s injuries were caused by negligent medical treatment.
The birth injury lawyer then examines whether the medical care surrounding the child’s labor and delivery was negligent—or reasonable under the circumstances. The lawyer also evaluates the level of harm resulting from negligence or malpractice. Simply put, without harm, a lawsuit may not be the best option.
If the injury causes a mild inconvenience to the child, the costs of filing a lawsuit will outweigh the recovery for a mild injury. However, it isn’t uncommon for a birth injury to cause other profound injuries, like cerebral palsy, brain damage, or even wrongful death. Catastrophic injuries may require a lifetime of treatment, therapy, and equipment costs, not to mention other damages that may warrant filing a lawsuit where the injuries were caused by medical malpractice.
Sometimes, the mother gets hurt during or after labor. Common cases include strokes (due to uncontrolled blood pressure) or injury because of inadequate anesthesia and poorly repaired perineal lacerations.
If an injury to the baby, mother, or both is serious enough to file a lawsuit, the birth injury attorney and medical experts review the medical records for evidence of medical malpractice. If an experienced birth injury lawyer believes that the child’s birth injury was caused by a breach of the standard of care (the legal standard for medical malpractice), the lawyer, in consultation with the parents, may file a birth injury lawsuit.
Requirements for Filing a Birth Injury Lawsuit in New Jersey
An attorney can file a birth injury case in New Jersey only within the time limits set in the statute of limitations. We’ll talk more about this later in this article.
If the medical expert confirms the evidence of medical negligence or malpractice in the medical records, the attorney must prepare a complaint—the formal document that is filed with the court to start a lawsuit. In addition, the lawyer must prepare and file an affidavit of merit—a written statement under oath that is based upon the opinions of and signed by the medical expert.
When both mother and child are injured, the complaint prepared by the lawyer will include two separate claims: one for the mother’s injuries and another on behalf of her child.
Evidence Required in a Birth Injury Lawsuit in New Jersey
The testimony of expert witnesses is normally the most important evidence that plaintiffs can provide. Using medical records, the sworn pretrial testimony of witnesses, and their own expertise, these witnesses proffer whether the medical professional who has been sued was negligent and caused the injuries of the mother or child. A health care provider’s negligence does not have to be the only cause of harm, but it must be a substantial cause of the harm. Testimony of other medical workers can establish when the alleged malpractice occurred. In addition, family and other witnesses can be valuable at trial.
Often, birth injuries require further diagnoses, treatment, and testing; the results of these tests can sometimes serve as evidence against the allegedly negligent doctor.
Lastly, the plaintiff can rely on policy and procedure manuals used in hospitals or medical practices to prove what the medical professional should have done but didn’t do.
Who Can Be Liable for Birth Injuries in New Jersey?
Medically, the term “birth injury” applies only to complications inside the birth canal. For legal purposes, however, the definition is broader and can cover injuries that occur before, during, or even shortly after delivery. This enlarges the scope of liability.
Birth injury lawyers scrutinize the records of prenatal and postnatal management as well as the conduct of the medical staff during childbirth. For example, when an injury occurs, a doctor who doesn’t check the mother’s blood pressure can be held responsible. A midwife, physician, or even a nurse who responds too late when the fetal heart rate monitor indicates fetal distress could be liable. These are examples of negligence that can lead to permanent damage, such as brain injury.
Failure to properly evaluate the mother’s prenatal health can also lead to injury. For example, is she suffering from diabetes or high blood pressure? Does she have a history of difficult births or even stillbirths? Is the baby’s size appropriate for a vaginal delivery? Evaluation errors can be grounds for a medical malpractice claim against the medical professionals involved.
Once medical malpractice is confirmed, the hospital and the medical professional can both be held liable. In fact, legal experts often recommend prosecuting claims against both because charitable hospitals may have limits or caps on damages that can be recovered against them. Thus, identifying all the health care providers whose substandard care caused harm assures
that there will be sufficient funds from which to recover damages that the costs of the lifetime of care for serious injuries require.
How New Jersey’s Statute of Limitations Works
There is a limit to the time that may pass between the injury and filing the lawsuit. This is called the statute of limitations.
For adults, the statute of limitations in New Jersey is normally two years. This means you must file your claim by two years after the injury happened or by two years from when the claimant knew—or, through the exercise of reasonable diligence should have known—they were injured by negligent medical care.
Interpretation of the Statute of Limitations in New Jersey
Even with the statute of limitations in place, personal injury law may allow for lawsuits to be filed after two years, under certain conditions.
The general rule is a claimant has two years from the moment his injury is discovered to file a lawsuit. For example, if a surgeon amputates the wrong leg, the damage is clear from day one. The victim has two years from the date of surgery to file a personal injury case, which could lead to a possible settlement or medical malpractice verdict.
It’s more complicated if the injury is less obvious and manifests later. Under New Jersey law, the two-year period does not begin to run until the claimant knows or through the exercise of reasonable diligence could have discovered they were injured by a doctor’s negligence. This is known as “the discovery rule.” For example, if a surgeon leaves a sponge in someone’s body, it can take years before it begins to cause a patient’s symptoms. In such a case, the two-year period starts when the patient is told that an X-ray reveals the sponge.
The Statute of Limitations for Minors in New Jersey
Another exception to the two-year statute of limitations is when the injury occurs to a minor. In New Jersey, parents of children born before July 7, 2004, can file a birth injury claim until the child is twenty years old. If the child is born after July 7, 2004, a claim must be filed prior to the child’s thirteenth birthday.
Therefore, the parents of a nine-year-old child with hypoxic-ischemic encephalopathy, a brain dysfunction caused by inadequate oxygen at birth, can still sue a doctor or hospital for medical malpractice. Even though this may feel like a lot of time, you should talk to a birth injury lawyer promptly. The investigation takes time, memories fail over the years, and the faster an investigation is begun, the better.
Once the statute of limitations has expired, it’s no longer possible to file a lawsuit for medical malpractice.
How a New Jersey–Based Birth Injury Attorney Can Help
For injuries within New Jersey, hire an attorney with experience practicing in New Jersey. An experienced birth injury attorney can help you file your case and lead you through all the procedures associated with lawsuits. Read on to learn the when, what, and why of hiring an attorney.
When to Hire a Birth Injury Attorney
Medical malpractice cases are complicated. The attorney and experts need time to review everything, so it can be months before the case can be fully evaluated and the decision made to file a lawsuit. Because the statute of limitations gives you only two years, it is best to seek help immediately.
Otherwise, there might not be enough time left to prepare the case.
What to Look for in a Birth Injury Attorney
When hiring a birth injury lawyer, the most important criterion is experience.
Personal injury and medical malpractice cases are very complex. Therefore, you need highly skilled and experienced lawyers who know how to analyze medical records and other evidence related to medical care. You need lawyers who also understand the financial and day-to-day impact birth injuries have on the child and their family and who can develop that evidence and present it in court. Lawyers experienced in handling birth injury cases have worked with medical and other experts in evaluating, preparing, and bringing these cases to trial and maximizing the chance for successful resolution.
How You Can Benefit from Hiring a Birth Injury Attorney
Hiring an experienced birth injury attorney is of critical importance. Experienced birth injury lawyers understand and have experience with analyzing the complex medical care involved in managing pregnancy, labor, and delivery. Experienced birth injury lawyers are familiar with and can help evaluate the treatment and care the child will require for his or her lifetime. With experienced birth injury lawyers working with experts in medical care providing treatment, a child can dramatically increase the likelihood of successful litigation. Successful litigation may result in a recovery that can assist families in providing long-term care and comfort to an injured child. That often means less worry and stress.
Compensation for medical malpractice varies and depends on the underlying facts and extent of injuries suffered by the child. The recovery is based upon proof of the costs associated with the lifetime of medical care, therapies, and equipment that may be required to care for the injuries. The law recognizes the child has a right to recover for their loss of earning capacity resulting from his or her injuries and the physical pain and emotional suffering attendant to those injuries. These costs and the impact of the injuries form the basis of recovery or damages in these cases. Recovery can be substantial, including compensation in the millions of dollars.
If you think you or your baby were injured due to medical malpractice, trust your instincts. Don’t hesitate to contact a lawyer if you feel something is wrong. This is especially important because the child might need expensive medical care for the rest of his or her life.
What If It Happens to You?
There’s no assurance of what will happen after nine months of pregnancy. If something should go wrong and you need to file a birth injury case in New Jersey, it’s good to know birth injury attorneys are available who can help. If you have a question, call us at 215-567-3500 or contact us via email or online to learn more.