Frequently Asked Birth Injury Legal Questions

If you have questions about birth injuries, the team at Birth Injury Guide can help! Browse our FAQs, or use the search bar to filter your results.

Often, parents of a child with a birth injury say they didn’t think they would one day file a birth injury lawsuit, so they were completely blindsided when it came to selecting a law firm and moving forward with a lawsuit. Some people have no idea what the first step is, how to get to the first step, how to navigate having a child with a birth injury the same time you’re working through this legal process, or a thousand other questions that come to mind.

If you have these and other questions, Birth Injury Guide wants to help. Below, we discuss some of the most common questions that our clients ask about our services, their legal rights and the legal process. 

FAQs about Birth Injuries

Medical negligence occurs when a healthcare provider provides substandard care to patients that causes an injury or causes an existing condition to get worse.

The standard of care can be defined as how a reasonably competent healthcare professional or facility would treat a certain patient or condition under similar circumstances.

Healthcare providers must obtain informed consent from patients before they initiate a treatment or perform a procedure. When a patient signs an informed consent document, they are agreeing that they understand their treatment options and are making a choice of their own free will. Before a patient signs an informed consent document, the healthcare provider must have a conversation about the risks, benefits and alternatives to what is being discussed.

Not necessarily. There are different types of informed consent documents. Some simply authorize the healthcare provider or facility to treat you. Others are more detailed, and explain risk factors for certain treatments or procedures. In either case, your signing an informed consent does not mean that healthcare providers can provide negligent care. They should be held accountable for medical negligence.

FAQs about Birth Injury Lawyers

First, you or a family member must have been injured. Second, those injuries must be someone else’s fault. Third, the facts and details of your situation will determine if you have a case. Discuss your concerns with a birth injury lawyer to find out more.

It’s important to have as much relevant documentation as possible. Since the set of events includes the birth, gather all paperwork relevant to pregnancy, being checked in and out of the hospital, any additional paperwork you were given at the hospital, any medical images such as x-rays, MRIs, CT scans, or EEGs, and any documents you were given with the diagnosis of your child’s birth injury.

Even if you think some of the paperwork may seem irrelevant, be certain to save everything you can.

At Birth Injury Guide, we represent injured victims and their families on a contingency basis. That means that unless we are successful in recovering money for you, you will not owe us anything. If we are successful in recovering compensation for you, our legal fees and costs will be deducted from the financial settlement or award.

Birth Injury Guide works with law firms throughout the United States and Canada. We work alongside some of the largest and most successful personal injury firms.

You can Google “birth injury lawyer near me” to get general results from the internet. You can also contact your state or local Bar Association to get a referral. Often, the best way to find a lawyer is to ask friends and family for a recommendation based on their experiences.

FAQs about Birth Injury Lawsuits

When you suspect your child of having a birth injury, the very first step is to get help for your child. Don’t waste any time, because some birth injuries are very time-sensitive, getting worse the longer you wait to diagnose and treat it. After you’ve gone through all of the immediate steps to get your child taken care of (often a list of steps dictated by the kind of birth injury your child has), then you can do the necessary research to find a law firm that is experienced and successful handling  birth injury compensation claims.

Sometimes kind parents don’t want to step forward and make things uncomfortable with their doctor. However, kind parents don’t realize that in so doing, they’re doing an unkind thing, as this dangerous doctor is free to injure other babies. While that is reason enough to take legal action for your baby’s birth injury, another reason that justifies taking legal action includes funding.

If your baby has a severe birth injury such as cerebral palsy, you will be in for a lifetime of exorbitant medical expenses that may include:

  • Medication
  • Wheelchairs
  • Therapies
  • Surgeries
  • Perhaps a new mode of transportation that accommodates a wheelchair
  • In home care with a nurse
  • Home modifications

Sometimes these expenses can go into the millions, and the average family can’t afford millions in specialized healthcare. Often, the financial awards from legal action are the only way that families can properly care for their children with birth injuries.

Every state has a statute of limitations, or deadline, for filing a lawsuit. The statute of limitations varies by state, by the type of injury and whether the victim is an adult or a child. The statute of limitations may also vary depending on:

  • Status as a minor
  • Recent changes in the law
  • Where the injury event took place
  • Rules regarding notice of intent to file suit
  • Different types of legal claims for a single event
  • Injury that developed over time that can be linked to several states
  • The state(s) statute(s) where the defendant(s) is located

A birth injury lawsuit can be filed by the victim and on behalf of other people who were directly harmed by the injury. Also, if the victim is a minor or is mentally incompetent, a parent or legal guardian can file a lawsuit on their behalf.

The value of your case depends on a variety of factors including:

  • How the accident happened
  • What your injuries are
  • Current medical expenses
  • Anticipated medical costs
  • Lost income or earning capacity

If medical negligence caused your child’s birth injury, you may be eligible to recover compensation for the following damages:

  • Medical costs resulting from the injury
  • Future anticipated medical costs
  • Lost wages or income
  • Pain and suffering

Any healthcare professional can be sued in a birth injury lawsuit if he or she contributed to your child’s injury. That includes doctors, midwives, nurses, hospitals, hospital staff, clinics and pharmacies.

Every case is different. The amount of time necessary to resolve your case will depend on a variety of factors, including the details of the case, the parties involved, and the court’s schedule.

No. In fact, most cases under the umbrella of personal injury or medical malpractice settle outside the courtroom. We will attempt to reach an amicable settlement in your case, but will be prepared to go to trial if a settlement cannot be reached.

Some trials take years. Ultimately, it depends on the kind of birth injury your child has and the kind of documentation you have to support your case. If you have a number of hard facts as documented through paperwork, your case might proceed faster than a case that is subjective with only a few witnesses relied on fallible memory. That isn’t to say that witnesses won’t help you in a trial –just that documentation makes a trial progress faster.

We will provide you with contact information for applicable parties in your case. You will also be asked to provide your contact information. We will routinely reach out to you with updates on the status of your case.

Once you have decided to hire us, it is helpful to provide as much information as possible as soon as possible. This helps us build your case quickly. If possible, provide copies of all medical records, billing statements or invoices, health information and a timeline of events.

Yes. Any information you share is completely confidential. The attorney-client privilege protects your information, and we take that privilege seriously.

One of the most common cerebral palsy legal questions is “how long does the case take?” Cerebral palsy cases are generally long episodes that involve a process of:

  • Gathering paperwork
  • Gathering testimonies from experts and specialists
  • Communicating with healthcare providers
  • Various waiting periods and requirements depending on what your state requires for such cases

Generally these cases take 18 months to two years to go to court from the filing date. Sometimes cases can go by faster if the defendant is willing to settle, preventing the process from going to court.

  • Duty of Care: The person or people you are filing the lawsuit against must have had a duty of care for your infant, meaning they must have been responsible for your baby’s medical care at the time of the injury.
  • Breach of Duty of Care: The defendant (s) must have breached the duty of care by acting negligently and carelessly while medically caring for your baby.
  • Injuries As a Result of Breach of Duty of Care: Your infant’s injuries must have happened because the defendant (s) breached the duty of care. In other words, the defendant’s direct actions or lack of appropriate actions must have been what caused the injuries.

Lawyers specialize in different content areas, but brain injury lawyers are used to dealing with adults who withstand brain injuries due to non-medically-related accidents. To that end, you may be better off with a birth injury lawyer or a brain injury lawyer who specifically specializes in brain trauma caused by birth injuries.

Lawyers who specialize in both birth injuries and brain injuries know exactly what is necessary and required for a birth injury case, thus getting you the apt amount of funds you need so that you can take care of your child’s lifelong expenses (such as medications and therapies).

FAQs about The Client Process

It is extremely difficult caring for a child with a birth injury, especially if you are the primary caretaker. You need to be there for your child more than anyone else is, and it’s hard to imagine taking any time out of that schedule even if it is to serve that child in a different way. Most law firms understand that and make the process as smooth as possible so that you can primarily take care of your baby, and only then take care of something that will also take care of your baby.

To obtain a copy of your medical records, contact the doctor or hospital. You will request the records, which may be sent via mail, email or fax. If your doctor has a patient portal, you may be able to download them from there.

As a patient, there should not be a fee for obtaining your medical records. There may be a fee for copying documents if they are mailed, and you can find out when you make the initial request. If there is a fee, the doctor or hospital must advise you of that upfront.

Your deposition should not be a narrative of the emotions regarding your case. The jury as a group of humans will clearly see how you feel about the matter and will ascertain the kinds of effects that it’s had on you and your family. Your deposition needs to be compiled of as much factual information as possible, omitting all emotional narratives and explanation of the events.

Your deposition needs to remain only as the events that unfolded.

  • What time did you go into labor?
  • Did you have any doubts about your doctor or the medical staff before you went into labor? If so, why? (Hard facts, remember, no feelings, but actual exchanges of dialogue or actions.)
  • What happened during labor?
  • How did the medical staff act before, during, and after labor?
  • Did the nurses or doctor act like anything was wrong at any point –even if no one verbalized it?
  • How did the baby look when he or she came out?
  • How much time passed before you realized there was a problem with the baby?
  • What, exactly, were the symptoms of the birth injury that you recognized in the baby?
  • What did the medical staff say when you brought these symptoms to their attention?
  • Did anyone admit to anyone having made a mistake during delivery?
  • Did a hospital representative or an insurance representative try to talk to you after your child was diagnosed?
  • What did the representative say, and could this be considered an admission of guilt?

Be very careful about the details that you select for your deposition, but make sure you include as many factual details as possible, including dates, times, names, and exact dialogue if you can.

Witnesses could be either helpful or useless. Useless witnesses are people who think that they may have seen or heard something, but they’re not sure, or perhaps they had a feeling about something and their testimony is subjective. However, an excellent witness that could be very beneficial in your case could include a witness that heard a medical professional admit to making a mistake, or a witness that was present in the delivery room to see the mistake firsthand (generally family members can be this kind of witness).

FAQs about Birth Injury Compensation

Your settlement amount is a figure based on the lifetime costs of your child’s care. These needs are calculated in a document called the Life Care Plan. Your family will work with a group of experts to take all of your child’s needs into consideration. The experts then create a list of the therapies, medications, treatments and aids your child may need at various stages of his or her life. The costs of these needs are part of the plan.

Your court settlement, then, aspires to not only meet that bottom line figure, but to get a little more in an effort to match cost inflation over the years. It may also include an additional amount to cover unforeseeable circumstances.

Sometimes therapy for Erb’s palsy is expedited so that the child can continue through his or her developmental stages without having long term effects. To that end, therapy can sometimes feel rushed, especially when the family can’t afford the therapy at this current date.

Some parents think “I’m still paying for the cost of having the baby, and now I have to pay for the cost of giving the baby therapy, too.” That is how the settlement from a birth injury can help. You can move through your child’s recovery making the environment and relaxing and soothing as possible, and thereafter move on to happy, healthy, normal lives.

If you have a valid brachial plexus injury case, coupled with an experienced birth injury lawyer, you definitely have a chance in receiving compensation for your baby’s injuries. Although it’s impossible for anyone to tell you 100% as to whether you will win your case or not, the chances are good as long as the two aforementioned factors are met.

There is a common misconception that all infant brachial plexus injuries will heal themselves over time. Even though most of these types of injuries will clear without treatment, the unfortunate fact is that the more severe the the injury, the more likely that an infant will experience lifelong problems in the damaged area, which can include total paralysis and/or permanent pain. Even with extensive physical therapy, medication, and even surgery, there is a chance that brachial plexus injuries will never heal.

Often birth injury lawyers will contact physicians who are competent in the subject matter to give expert testimonies. Since expert testimony is so important to birth injury cases, you may be expected to make an appointment so that a physician can evaluate your baby and provide an additional medical opinion.

If you have already been seeing a neurologist for your baby, the lawyer may simply approach that neurologist for the testimony. However, it’s not uncommon for infants to undergo evaluations from different physicians in order to have additional medical opinions on file.

FAQs about Infant Wrongful Death

A baby wrongful death case is a case when a medical staff person of responsibility makes a tragic mistake that results in the death of the child, the mother, or both. Sometimes the medical staff, which can include physicians, nurses, and medical assistants, makes a mistake that results in a painful birth injury first, that may eventually lead to death. In other instances, a baby may be born stillborn after negligent medical mistakes.

Unfortunately, common birth injuries that result in death, in many instances, can be prevented. For example, failure to schedule and perform an emergency C-section when the fetal and/or maternal is detected,  improper and forceful tugging during childbirth, and administering the incorrect amount of medication can all lead to death, yet could have been prevented with diligent medical care.

When a tragic death happens, it’s common that a representative from the hospital or from the insurance company wants you to feel like the medical staff personnel did whatever they could to save the baby, the mother, or both. Sometimes they’ll even try to give you a settlement so that you can feel okay when you leave the hospital. You should never accept this money because this is one of the many clear signs that there was something wrong for them to feel like they need to give you a settlement.

If you have any feelings of uneasiness about what happened or if you reflect a regretful or “oops” feeling from anyone on the medical staff team, that is an indication that someone made a mistake and that something wrong happened. This insecure feeling is a very large indicator that something could, in fact, have gone awry and this may be a great place to start when you meet with a lawyer.

When you meet with a lawyer and you think that you may be the victim of a wrongful death case, start with whatever feelings of unease regarding the events that transpired. It’s also best to have as much documentation as possible, such as medical records, any records or pamphlets that you may have from as far back as pregnancy, and other documentation such as check in and discharge paperwork.

You may also want to write down your testimony, recording your own eyewitness account of any pertinent information. If any friends or family members observed something, their written testimony may also be a valuable document to bring when you approach a lawyer.

It’s difficult to determine how long a wrongful death case will take, as there no cases are identical. However, the majority of wrongful death cases do not settle quickly. Wrongful death settlements may take anywhere from several months or more. If your case should go to trial, it may take a few years.

Since there is no set way to determine how long your particular case will take, it’s best to prepare beforehand and understand that it may take quite some time before the case is resolved.