Birth Injury Attorney Interview - The A to Z of Birth Injury Lawsuits
UPDATED: February 24, 2020
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This is a transcript from an interview on birth injury cases with Jeff Milman, an attorney who has been practicingmedical negligence law for 26 years and and member of the Advocate Law Group. Attorney Milman is a member of ABOTA, the American Board of Trial Advocates, an association where you have to have demonstrated proficiency in trying at least a minimum of 20 jury trials. He was president of the Orange County Trial Lawyers in 2004 and his practice is located in Newport Beach, California.
FreeAdvice:: Can you provide an overview of birth injury cases for us?
Jeff Milman:Birth injury cases are the most complex type of medical negligence cases around. Usually it involves a tragedy to a family; especially if the child is born profoundly injured, whether it is brain injury or dystocia (a shoulder problem), and the child survives. It also affects the parents. It requires multiple experts. It requires a good sum of money to retain experts and prosecute and it requires a very, very, very experienced lawyer to handle these types of cases.
FreeAdvice:: What are the different types of birth injury cases?
Jeff Milman:The two we see primarily for those children that survive are number one, brain injury – or anoxic brain injury, what they call hypoxic-ischemic encephalopathy. The claims in those cases are usually that the physician or the medical staff failed to properly monitor the birth process via the fetal monitoring strips and order a caesarean section in a timely fashion.
The second type of cases we see are where there is a vaginal delivery and the physician and the staff failed to properly help the baby down the canal such that the baby is born with dystocia which can affect palsy and a host of other things.
There are the death cases and we also see cases where there was improper genetic screening and of course, the baby is born with a genetic problem.
FreeAdvice:: Who can make a birth injury claim?
Jeff Milman: The birth injury claim would be made on behalf of the minor if the minor is alive. One of the parents or both of the parents would be the guardian ad litem, or for the purposes of litigation, the guardian. Also, in California, if the parents observed negligence occurring, and in fact appreciatedat the time there was negligence going on, they could also make a claim for what they call negligent infliction of emotional distress. But there are some hurdles to those and they're very difficult to prove in court.
FreeAdvice:: Are there limits on that?
Jeff Milman:Each state has different limits. In California, we have MICRA, the Medical Injury Compensation Reform Act, which has been around since 1975. It caps the amount of pain and suffering to $250,000 for the child. For negligent infliction claims for the parents, there would be separate caps to a maximum of $250,000 and unfortunately, if there is a death, it's $250,000 for a family – total. Now, of course, if you go to other states, for example, Nevada; they have a $600,000 cap. Some other states have no caps.
FreeAdvice:: Would there be a cap if it was intentional infliction of emotional distress?
Jeff Milman: If you can prove that a physician or staff intendedto hurt someone or there's a battery that takes it outside of the negligence venue, then yes; you can avoid caps. However, that's pretty difficult to do.
FreeAdvice:: What's unique about a birth injury case versus just a typical medical malpractice case?
Jeff Milman:Birth injury cases are unique in that you have multiple, multiple experts. They are extremely complex and these cases are very expensive. For example, when we look at a case in which the baby suffered fetal bradycardia, where there was a deprivation of oxygen and a caesarean section wasn't done fast enough, we're looking at hiring a labor and delivery nurse. We look at hiring in obstetric gynecologist. We're hiring an expert on neonatology. We then might have the baby examined by a pediatric neurologist, a physical medicine and a rehab specialist. We would get a lifecare planner involved to project out all the future medical needs along with these other physicians along with a forensic economist. So, it's not unusual to have costs on these cases escalate to upwards of $100,000 or more if you're going to go to trial.
FreeAdvice:: Who is generally responsible for paying for the upfront costs in these types of cases?
Jeff Milman:Sometimes we'll ask the client to pay the initial expert review, maybe $1000 or less. But by and by, the law firm expends the costs for the majority of these on a contingency basis. If we recover a settlement or verdict, we would be reimbursed our costs.
FreeAdvice:: What are the differences between a birth injury case and a wrongful death case involving a newborn?
Jeff Milman:These are labels. A birth injury implies that something happened during the birthing process that can result in either a damaged child who has neurological or profound disabilities or a child that is born viable and then dies. So once there's a death, the label is a wrongful death case. If the child survives, the label is called a birth injury negligence case.
FreeAdvice:: How do damages differ in these types of cases?
Jeff Milman: Unfortunately, damages are capped at $250,000 per family in a wrongful death case. When you have a child that's born profoundly damaged, you're dealing with different damages. You're dealing with a $250,000 pain and suffering damage cap for that child and then you're dealing with some fairly sizeable numbers for future medical care and also lost earnings if the child will be unemployable by virtue of its disabilities. Then there's the issue of attendant nursing care. For example, if you have a mother or a father who are spending a great deal of their daily time providing direct nursing care that they otherwise would not have to do for a child without disabilities, they would be entitled to be reimbursed for that.
FreeAdvice:: What is the statute of limitations for filing a birth injury claim?
Jeff Milman: For the adult in California, it's one year from the date you knew, or with suspicion should have known, of injury or damage. So for example, if the parent has a negligent infliction of emotional distress claim, they should be talking to a lawyer pronto. For the baby, they have upwards of eight years. The statutes are somewhat complex, so I would advise anyone who even suspects there is a birth injury to immediately acquire the records and see a competent attorney rather than risk the statute of limitations barring their claim.
FreeAdvice:: What type of medical records do you need to obtain when filing a lawsuit?
Jeff Milman:Eventually, the lawyers are going to get all the records, but the clients should initially request the prenatal chart – the chart that the doctor keeps in their office for the mother. It would be under the mother's name. Then separately, assuming the baby is born in a hospital; there will be two charts to obtain. One will be a chart under the mother's name and the other will be a chart under the baby's name which would include the pediatric records and the neonatology records. The last thing to make sure clients get their hands on is the fetal monitoring strips. Later on, the lawyers can get other things such as the MRI films, but the important thing to know is that hospital records have two separate charts; one for mom, one for baby.
FreeAdvice:: Do you ever see cases where the parents are bringing a suit against a midwife?
Jeff Milman:I have had a few of those cases. By and by, midwives are not the flavor of the month, as it were. So they're not as prevalent as they once were. But yes, if a midwife is negligent, they, as a medical provider, have the same exposure as any other medical provider such as a nurse, a nurse practitioner or a doctor.
FreeAdvice:: Who should obtain these medical records?
Jeff Milman:It would be prudent for both the parent and the lawyer to obtain them, actually. If you suspect that there's medical negligence, parents should immediately try and get a copy of the records. Then later on, as the litigation progresses, we (the lawyers) obtain the records via subpoena and authorization. Every once in a while you get lucky and it turns out the records that the parents obtained are not the same ones supplied in the litigation and they've been altered. It doesn't happen often, but nothing settles a case faster than altered records.
FreeAdvice:: Is it difficult for non-lawyers to obtain these documents from hospitals, especially when the hospitals suspect that a lawsuit may be filed?
Jeff Milman:It depends on the hospital. Some hospitals are very giving and others will put roadblocks up in their way. The important thing to remember is that absent copying charges, these records are that of the patients and they have the right to them. So don't take no for an answer.
FreeAdvice:: What would you advise people to do if they can't get anywhere with the hospital on obtaining the medical records?
Jeff Milman:Go see your lawyer.
FreeAdvice:: What type of evidence is typically involved in a birth injury case?
Jeff Milman:Depending on the case, we will have fetal monitoring strips. We may use blow ups of certain injuries that are created by medical illustrators. There will be a number of reports which the experts prepare, especially the economics. Then, we routinely put together two videos; one is called "A Day in the Life" which is intended to be shown in court and it will supplement the testimony of the parents as to what they have to do on a daily basis.
We'll also do a shortened version, maybe a 10 or 15 minute version of what we call a "settlement" or "mediation" brochure and we'll use that as evidence to get across how much effort there is and how profoundly it affects the family.
FreeAdvice:: What type of experts do you use and when do you consult with them?
Jeff Milman:I consult with them right off the bat. The first experts I'm going to consult with are labor and delivery nurses to assist me in evaluating the fetal monitoring strips, if that's the issue. I will also get an obstetrics gynecology expert who is a specialist in the type of case we're looking at.
Once I have a thumb's up from them on the issues of liability, that there was in fact negligence, I want to rule out other causes that could cause birth injuries besides the negligence. So, I will get a neonatologist to review the chart and make sure that there's not something genetic or something that occurred afterthe birth, for example, in the neonatology ward.
Once I have those experts solidly in place, then we're going to get the damages experts involved and get the baby evaluated and seen by a life care planner, a pediatric neurologist, a physical medicine and rehab expert, have economic reports put together and the day in the life information done.
FreeAdvice:: It sounds as though the process of whether to file a lawsuit is very complex. Do you often see other attorneys whose practices don't focus in this area taking on these cases and not doing everything that they should?
Jeff Milman: Unfortunately, yes. This is not an area of law one should dabblein. This is not an area for someone who's a general practitioner. This is a high specialty area and I've seen a myriad of times where the attorney handling the case gets in way too deep, runs out of money, has hired the wrong experts or doesn't have experts at all. So definitely, if you are a consumer and you're contemplating bringing one of these cases, make sure you find an attorney that is up to the challenge of handling this and ask them point blank, what percentage of their practice is medical negligence? Have they handled birth injury cases? What has been their track record?
FreeAdvice:: What are the differences in prosecuting doctors versus nurses versus an HMO?
Jeff Milman:There really aren't any differences. The HMO issues deal with the fact that you may be bound by an arbitration agreement such as Kaiser Permanente or if it's a Veteran's Administration case, you may be bound in federal court. However, whether you pursue a doctor, a nurse or an HMO, the issues are pretty much the same. Did a professional breach the acceptable standard of care? In other words, was somebody negligent? Did they mess up and was that a cause of injury?
So, we have to prove three things; liability, causation and damages – and we do that through the experts.
FreeAdvice:: Does dealing with the Kaiser Permanente arbitration process tend to limit damages in your opinion or is it basically the same as going to court, just in a different venue?
Jeff Milman:Well, the law is the same. I'm not a fan of arbitration, although I will say that I have won certain cases in arbitration that a jury may not have given money on. By and by, you tend to have a retired judge as an arbitrator and they tend to be a little more conservative than a jury. However, the damages are the same.
FreeAdvice:: How much money does it take to prosecute a birth injury case?
Jeff Milman:I would say, realistically, to get the case into settlement mode, at least $40,000 or $50,000. If you're going to go to trial and spend two or three weeks in trial, it could go upwards as high as $150,000 in costs. Those costs are generated by the sheer volume of discovery, depositions and experts that are used.
FreeAdvice:: How long does it take to prosecute one of these cases?
Jeff Milman:It depends on what court and state you're in. When I first started practice in California, it would take upwards of five years to get a case to trial.
Now, for example, in California's Orange County, they're generally done within 18 months. In Riverside County in California, they have a moratorium. They can't get civil cases out to trial so you're kind of victim to whatever the court system is.
FreeAdvice:: How long does it generally take to get to arbitration in the Kaiser Permanente process?
Jeff Milman:Kaiser now has fixed rules. Before they were somewhat guilty of taking too long and our Supreme Court in California was very critical of them. They've now put together what they call the OIA, or Office of Independent Administrator, and the goal is to get these cases to trial within 12 to 18 months and they are succeeding in that regard.
FreeAdvice:: How many cases go to trial versus settling?
Jeff Milman:In medical negligence, we tend to try more cases than you would in, for example, car accident cases or business cases. I would say probably about 90% of our cases settle and the key to that is good case selection. We have to have good experts and we've got to have a good case going in or else it's going to be a disaster.
FreeAdvice:: Is there anything that someone bringing a birth injury lawsuit should or shouldn't do?
Jeff Milman:They should immediately get the records. They shouldn't write things or say things that could be used against them later on. For example, writing nasty letters to the hospital administrators. They need to be cool, calm and collected. They need to collect whatever evidence they can and then they need to apply for whatever healthcare and government insurance that might be available above and beyond their regular healthcare.
FreeAdvice:: What is a lifecare plan?
Jeff Milman:It is a plan usually created by a nurse that is certified as a lifecare planner. He or she interacts with the treating physicians of the child, the pediatrician, as well as experts that we retain for purposes of the case such as the pediatric neurologist, a pediatric physical medicine expert and a rehabilitation expert. The goal is to set forth all of the future medical care needs down to Band-Aids and medicines that this child may need over the course of his or her lifetime.
FreeAdvice:: Is a life care plan based upon what it would cost in today's dollar or is there an inflation factor that is figured in?
Jeff Milman:The lifecare plan is for the baby's lifetime. We get an economist who will basically evaluate that lifecare plan and put the figures in today's dollars.
So for example, you may have a lifecare plan that deals with $12 million of needs of this child through age 75. However, the present value, meaning the amount that it would cost to write a check to let the money grow and cover all that may be say, $3 million. Of course, the other side will have competingexperts that will say that our numbers are inflated, so we get to fight about that.
FreeAdvice:: Does the family or the child have an opportunity to come back if there's a later complication that will require more money than what the life care plan called for?
Jeff Milman:Basically, once you settle, you settle. Under rare circumstances, if the child dies later on from the injuries, the family might be able to bring a wrongful death case if the death is related to the negligence. However, most defendants don't want to include that and they want to write one check and be done with it. So I always joke with my clients and say, if you sign the settlement agreement and you get your money, if your neck and back turn green and fall off tomorrow, it's your problem, not theirs.
There are different ways to settle cases. There are special needs trusts and there's payment streams called annuities. Some annuities are guaranteed, meaning that if the child were to die, the heirs get the funds. Others are only for the life of the child.
If you go to trial and have a verdict, the court can set limits, monitor and cut off payments that are ordered by the jury for future medical needs if there's a change. So for example, if the jury has allocated $3 million for future medical needs and the child dies two years later, the defendants can go to court on certain occasions and cut that stream off. However, that's with a verdict; settlements are different and you can control how the money is allocated.
FreeAdvice:: What is vicarious liability and how does it affect birth injury cases?
Jeff Milman:Vicarious liability is a legal term that says that someone is responsible for the acts of another. For example, if I'm an employer and my employee's running an errand for me and gets in a car accident, I'm vicariously responsible for the employee even though I did nothing wrong.
In birth injury cases, you'll mostly find that the doctors at private hospitals are independent contractors but the nurses are employees of the hospital. So, the hospital would be vicariously liable for the acts of the nurse.
If it's Kaiser, for example, then both the doctors and nurses are employees of Kaiser and Kaiser would be responsible for their employees' acts. If it's federal, then the United States government is responsible for the conduct of the doctors and nurses at a Veteran's Hospital.
FreeAdvice:: What is a special needs trust?
Jeff Milman:What happens in a lot of cases, unless you're particularly well-funded through private insurance, parents will apply for government benefits such as Medi-Cal and sometimes Medicare. There can be regional centers that take care and provide education for the children.
One of the goals when you settle a case is to bring in an attorney who specializes in special needs trusts and as part of any settlement, to the best of our ability, shield the money that the child and parents get so that their ability to obtain government benefits is not cut off. That is a special needs trust.
These settlements are overseen by a judge; we call it a minor's compromise. The judge has to make sure that the money is handled properly, that nobody's absconding with it and that the amount of the settlement is fair. So, there's a second set of eyes watching what's going on.
FreeAdvice:: What type of attorney should somebody hire in a birth injury case?
Jeff Milman:They should hire a lawyer who specializes in medical negligence and has the skill, knowledge and financial resources to do birth injury cases. Clients should ask some serious questions such as how many of these have you handled and what's your track record?
FreeAdvice:: How are attorneys compensated in birth injury cases?
Jeff Milman:Depending on the state, attorneys are usually compensated on a contingency fee basis. For example, in California, MICRA limits recovery to 25% for minors after expenses have been reimbursed.
FreeAdvice:: Does that percentage change if you appeal a case?
Jeff Milman:It depends on the state. For example, some attorneys will write a contract that provides for a contingency fee of 25%, but will increase that to 33% if you go to trial. However, in medical negligence cases, the fees are strictly controlled by MICRA; so generally, it's not going to change.
FreeAdvice:: Is there anything else you'd like to add about birth injury cases?
Jeff Milman:Parents don't sign off to have a profoundly damaged child. It is a horrendous thing and even though you love your child, you are faced with one of the most serious types of injuries there are. It's very emotional for the parents, for the child, for the brothers and sisters, for grandparents that may be around, and for family and friends. So if you feel there's medical negligence, get the records and talk to a competent attorney who can assist you.
If your child was profoundly injured or died as the result of medical negligence, contact an attorney whose practice focuses in this area of law for help. To contact an experienced attorney near you, please click here.