Filing a Birth Injury Lawsuit
UPDATED: July 25, 2013
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If your child has suffered a physical or mental defect as the result of a preventable accident or error during birth, you may be able to pursue financial compensation by filing a birth injury lawsuit. Birth injuries can have serious and long term consequences that will require constant and costly medical care, and taking the time to understand how to best prepare your lawsuit is critical to receiving the compensation you need.
NOTE: Opposing parties to a birth injury lawsuit will be well prepared to defend your claim with experienced attorneys and expert witnesses - taking on these experts without the use of an attorney will result in your lawsuit being dismissed or your compensation being well below what you deserve.
Preparing for a Birth Injury Lawsuit
Your actions before you take legal action or consult with an attorney can have a significant impact on your lawsuit. If your child has suffered a birth injury, keep the following tips in mind as you work through doctors appointments, conversations with insurance companies, or consultations with an attorney:
- Get the right medical attention for your child. Aside from the obvious need to address your child's medical concerns, in order to properly determine the value of your case, you will need to know the complete costs of medical treatment. As you work with doctors, make sure to get information about the immediate medical needs, and the necessary treatment in the short term or long term future.
- Document everything. After a serious birth injury, you will receive information and correspondence from a variety of sources. Keep track of documents pertaining to your child's medical needs, file all bills that accumulate during the process, ask for physician's diagnosis in writing, and hold onto every letter or email from the hospital or any insurance carrier.
- Get all the information about the birth. It will be up to your attorney and her expert witnesses to determine if there was an error made during the birth, but you will need to help gather information about what occurred. Write down or record your recollections of the birth as soon as possible, and make sure your attorney has names of every person who treated you from the minute you walked into the hospital. The more details about your hospital experience - including all your conversations and treatment from the moment you walked in - the better.
- Be careful when working with insurance companies or hospital representatives. Once it becomes apparent that your child's birth injury may be the result of an error by the attending physician or hospital staff, you might be approached by the hospital or doctor's insurance company or legal representative. Anything you say to these people can influence your lawsuit - sometimes to your detriment. You are free to politely request time to speak with your own attorney before speaking with them.
- Do not talk about the lawsuit or potential cause of your child's injury. Your family and friends will not be able to help you get the compensation you need to pay your child's medical bills, but a conversation with them can be used against your case if you say something that either directly or indirectly downplays the doctor's role or your child's injuries. You can protect yourself by not speaking about the case to anyone but your attorney.
Even a casual misstep - saying the wrong thing or losing track of a document - can derail a birth injury lawsuit, so proceed with caution and contact an attorney as soon as possible. Prior to a judge or jury reviewing a case, your lawsuit will go through a "discovery" period in which all information pertaining to the case is reviewed by attorneys on both sides. During this phase, opposing attorneys will press for gaps in your evidence that reduces doctor or hospital liability, so take the time before your lawsuit to prepare your case. Consult an experienced attorney before filing a claim.
NOTE: 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. When you receive the request for independent medical review, inform your attorney immediately.
Birth Injury and Wrongful Death
When a child dies, the lawsuit goes from being a medical malpractice case to a wrongful death lawsuit filed by the parents for the benefit of the parents. In most cases where a child dies, damage awards decrease significantly because there are generally no damages awarded to the child, with the possible exception of damages that may have arisen when the child was alive (for example, pain and suffering).
In theory, parents are supposed to be able to recover what they would have received from the child in terms of money and services; however, whatever amount that ends up being is reduced by an estimate of what the parent’s would have spent on the child. In most cases, the amount spent on rearing a child outweighs the amount that parents receive from a child. Funeral expenses and reimbursement for medical expenses are generally available. Many states allow parents to recover for non-economic damages for pain and suffering. These damages are based on an estimate of the money value of a child’s love and companionship.
Hiring a Birth Injury Attorney
Birth injury lawsuits are complicated affairs, and the money on the line is too valuable and too significant to attempt handling the case without the help of an attorney. Personal injury lawyers familiar with medical malpractice during birth typically offer free consultations, and are willing to negotiate a fee agreement that allows you to pay after the case has been settled and you have received a judgment - meaning you do not need to pay a large sum out of pocket. Reach out to an attorney if you think your child's birth injury was caused by the doctor or could have been prevented by the medical professionals who cared for you.