Filing a Birth Injury Lawsuit: What You Need to Know
By: Cohen, Placitella & Roth @ Sep 02, 2022
Dr. Alan Goldberg, Stewart L. Cohen, Esq., and Harry M. Roth, Esq.
Welcoming a new child into the world should be an exciting experience. However, medical professionals do not always take appropriate care when treating mothers and their infants, potentially causing serious injuries to the child or mother and even wrongful death.
Birth injuries can be devastating, resulting in physical, financial, and emotional hardships for the child, the mother, and the rest of the family. Filing a birth injury claim can provide relief from these hardships if your child was injured as a result of medical negligence.
Reasons to File a Birth Injury Lawsuit
By filing a birth injury claim, you could hold the at-fault medical provider and their employer accountable for the injuries that your child sustained. You can recover a financial settlement to help pay for the costs of the injury, including medical care, disability accommodations, and pain and suffering.
What Is a Birth Injury?
When providing treatment to patients, medical providers must meet a certain standard of care. If a provider fails to meet this standard and harm results to a patient, they may be liable for damages resulting from medical malpractice.
A birth injury claim is a form of medical malpractice. This term refers to any injury that occurs to the mother or the child before, during, and in the moments after birth. If a medical professional’s negligence causes a birth injury, the child, the mother, and their family could file a lawsuit against the provider.
Below are a few common types of negligence that may lead to a birth injury claim:
· Failure to monitor a baby’s heart rate and vital signs
· Failure to control blood loss in the mother
· Failure to detect and treat common maternal complications
· Failure to order a cesarean section delivery when necessary
· The use of dangerous delivery tools like forceps or vacuums
· Failure to check for common neonatal conditions, like jaundice
· Exerting too much force while delivering a baby
What Are Common Types of Birth Injuries?
Several types of injuries may qualify for a birth injury lawsuit:
- Birth Asphyxia: This condition occurs when an infant suffers from oxygen loss, leading to complications like brain injury or even death. Failure to order a necessary cesarean section delivery, failure to monitor a baby’s heart rate, and uncontrolled maternal infections could lead to birth asphyxia.
- Hypoxic-Ischemic Encephalopathy: In severe cases, birth asphyxia can lead to hypoxic-ischemic encephalopathy (HIE). This condition occurs when the child suffers permanent brain dysfunction due to a lack of blood and oxygen flow to the brain. In some babies, HIE can cause disabilities like cerebral palsy.
- Brachial Plexus Injury: The brachial plexus is a collection of nerves that control function and feeling in the shoulder, arm, and hand. During birth, these nerves can become torn and stretched, leading to injury. As a result, the child can suffer from severe pain, weakness, or paralysis.
- Maternal Injuries: Not all birth injury lawsuits involve injury to the child. Mothers can suffer from severe and sometimes life-threatening complications due to medical negligence. Examples of maternal injuries include uncontrolled preeclampsia or high blood pressure, perineal tears, infections, and anesthesia errors.
What Compensation Is Available in Birth Injury Lawsuits?
In a birth injury claim, you can recover two categories of damages. The first is economic damages, which involve the tangible financial losses that your child and your family suffered due to the birth injury.
Below are a few common examples of economic damages in birth injury claims:
- Past and future medical expenses to care for the injury
- The cost of a live-in caregiver
- Modifications to your home or vehicle to accommodate your child
- Any medical equipment that your child requires, such as a wheelchair
- Therapies for your child, such as physical therapy, speech therapy, and occupational therapy
- Lost income potential or loss of earnings caused by an injury
The second category is noneconomic damages, which involve the intangible physical pain, emotional suffering, inconvenience, and loss of life’s pleasures that you or your child have experienced and will experience for the rest of your lives.
When to File a Birth Injury Lawsuit
The statute of limitations is a law that establishes a filing deadline for certain types of lawsuits. If you do not file a lawsuit in time, the court will likely dismiss your case, and you will be ineligible for any recovery or settlement. It is important to speak with a birth injury lawyer as soon as possible to protect your right to compensation.
The statute of limitations for birth injury lawsuits varies from state to state. Additionally, different rules apply for birth injury cases involving minor children:
- Pennsylvania: Normally, competent adult plaintiffs have two years from the date of an injury to file a claim. But minor children have two years from the date of their eighteenth birthday to file their lawsuit.
- New Jersey: Competent adult plaintiffs also have two years from the date of the injury to file a lawsuit. Under New Jersey Statutes sections 2A:14-2 and 2A:14-21, minor children born before July 2004 have two years from the date of their eighteenth birthday to file their lawsuit. Children born after July 2004 must file their birth injury lawsuit by their thirteenth birthday.
In both states, the “discovery rule” may extend your filing deadline. Generally, under this rule, which also varies from state to state, the clock will not start running on the statute of limitations until you know—or, through the exercise of reasonable diligence could have known—that you or your loved one was injured by a health care provider’s negligence.
How to File a Birth Injury Lawsuit
The first step to filing a birth injury lawsuit is to speak with an attorney experienced in handling birth injury claims. These cases are highly complex and require a great deal of investigation, medical expert validation, and legal knowledge. By hiring an experienced birth injury lawyer, you obtain an advocate who can guide you through each stage of the litigation and fight for your family’s rights in the courtroom.
Once you get in touch with a birth injury attorney, they will enlist the help of a medical professional who can evaluate your claim. If the expert believes that the at-fault provider failed to meet the standard of care and caused harm, your birth injury lawyer can move forward with filing your case.
Both New Jersey and Pennsylvania require birth injury plaintiffs to submit an Affidavit of Merit or a Certificate of Merit, respectively. These documents essentially state that a medical expert has reviewed your case and believes that it qualifies for a lawsuit. Your birth injury attorney will submit the affidavit or certificate along with the other paperwork necessary for filing your claim.
After your attorney files your case, your case will move into the discovery phase. You and your lawyer will exchange evidence and depose (obtain the testimony of witnesses under oath) witnesses with the at-fault provider and his or her lawyer. Depending on the complexity of your case, discovery can take a year or longer to complete.
Once discovery is complete, the parties exchange reports prepared by their medical and other experts who outline the deviations from the standard of care and resulting damages and defenses to the case. The court may hold settlement conferences, and your case may settle or will proceed to trial, in which case a jury will hear evidence and arguments from both sides. At the conclusion of your case, a jury will render a verdict on whether you are entitled to judgment and the amount of an award. From beginning to end, birth injury lawsuits can take two to four years to resolve.
How a Birth Injury Lawsuit Works
The goal of a birth injury case is to obtain fair compensation for the losses that you, your child, and your family suffered due to the at-fault party’s negligence.
Though birth injury lawsuits can take a while to resolve, it is possible for your case to settle out of court. If it is in your best interest, you and your attorney may negotiate with the at-fault medical professional and his or her legal team during any stage of litigation.
If you receive a fair and appropriate offer, you could reach a settlement without going to trial. However, it is important to consult with a birth injury lawyer before accepting any kind of settlement, as you want to ensure that it is sufficient for your child’s long-term needs. In fact, you should work with a lawyer during each stage of your birth injury case.
Birth injury law can be very complex. Your attorney will handle each aspect of your case so that you and your child can focus on treatment and recovery. They can also connect you to expert witnesses who can validate your claim and testify on your behalf.
Contact Cohen, Placitella & Roth for Your Birth Injury Lawsuit
If your child suffers a birth injury, you and your family deserve justice. The attorneys at Cohen, Placitella & Roth have the skills, experience, and resources necessary to hold negligent healthcare providers accountable and advocate for your child’s right to compensation.
Contact us today to schedule your consultation and request an expert to review your case. Simply call 215-567-3500 to get in touch with one of our birth injury lawyers.