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What happens during a birth injury lawsuit depends on the laws of the state where your child was born. Your medical malpractice attorney will file a lawsuit against the doctor, hospital, and any other party who might be responsible for your child’s birth injury, or your lawyer will notify the parties that you intend to file a lawsuit. The involved health care providers will then notify their medical malpractice insurers about the lawsuit. At that point, the handling of the defense of the lawsuit is turned over to the medical malpractice insurer and the medical malpractice defense attorneys.

A lawsuit starts with “discovery.” During discovery, both sides collect information about each other. The other side will ask for your child’s and possibly your own medical records, financial records and other information. You will exchange questions and answers called “interrogatories.” Your child will most likely be required to undergo an Independent Medical Examination (IME) and if brain injuries are involved, an MRI by a physician chosen by the other side. Many of the individuals involved in the lawsuit (e.g., parents and treating physicians) will be questioned by the opposition’s lawyer in what is called a deposition.

Most cases are settled during the process of collecting information during these initial stages of the lawsuit. Your lawyer will talk to you about appropriate settlement amounts. When the other side offers to settle, you have the final say. If you decide to settle, the lawsuit ends. If you and the other side can’t agree on a settlement, your case goes to trial.