Birth Injury Lawsuits

A guide to the legal aspects of a Birth Injury, including a guide to Birth Injury Lawsuits, a look at alternatives to Birth Injury claims, information concerning the death of the child, an examination of lawsuits against HMOs, and an explanation of the unique money damages possible in a Birth Injury Lawsuit.

Understanding Birth Injury Lawsuits · Statute of Limitations · Financial Compensation · Death of an Infant · Distribution of Money Damages · Claims Against HMOs · Birth Injury Claim Alternatives

Understanding Birth Injury Lawsuits

The exact progression of a birth injury lawsuit is determined by the laws of the state in which it occurs. After you contact a birth injury lawyer, he or she will file the birth injury lawsuit against the doctor, nurse, hospital, and others parties who might be liable for your child’s birth injury. Your birth injury lawyer may simply notify the responsible parties that you intend to file a lawsuit for your child's birth injury. Subsequently, the health care providers will alert their medical malpractice insurers about the lawsuit. The defense of the birth injury lawsuit will be then turned over to the medical malpractice insurance company and the medical malpractice defense attorneys.

A birth injury lawsuit begins with discovery, which means that both sides collect information about each other. The malpractice insurance company will request your child’s medical records, and may ask for your medical records, financial records and other information.

It is important that throughout this process, your birth injury lawyer will advise you, guide you through difficult areas, and try to make the process as easy as possible. After the discovery, you will exchange questions and answers called interrogatories. Your baby will probably be required to undergo an Independent Medical Examination (IME), and in the event that a brain injury occured, the baby will undergo an MRI by a physician chosen by the other side. Individuals involved in the lawsuit (i.e. the parents and treating physicians) will be questioned by the opposition’s lawyer in what is called a deposition.

Most birth injury cases do not go to court and are settled during the process of collecting information during the initial stages of the lawsuit. Your birth injury lawyer will discuss appropriate settlement amounts. If the malpractice insurance company offers to settle, you have the final say. If you decide to settle, the birth injury lawsuit ends. If you and the other side can’t agree on a settlement, your case goes to trial.

Statute of Limitations

The statute of limitations for birth injuries varies from state to state. Simply put, the statute of limitations is the time limit in which you must file the birth injury lawsuit. If you do not file your birth injury lawsuit within the statute of limitations, you lose the right to compensation for injuries and damages. Becuase each state has a statute of limitations, it is important that you contact a birth injury lawyer to discuss your claim as soon as you suspect something went wrong during the birth of your child. Furthermore, some statutes of limitations for birth injuries can be quite complex, so it is best to seek legal counsel, so as to best understand your options.

Financial Compensation

Financial Compensation for Birth Injury Lawsuits differs, in some respects, from other Personal Injury Lawsuits, and even other Medical Malpractice Lawsuits. There are money damages unique to birth injury cases, because the injury is to a baby, and not to an adult. These unique damages, however, are also more complex than other types of cases, and require a particular degree of expertise in order to actually recover them. In Birth Injury Cases, medical experts are often needed to testify: These experts include:

Many states allow the parents of a child injured at birth to collect damages as well, for the value of their services in providing care for the permanently disabled child, or for the cost of paying someone else to care for the child.

An example of this would be if a couple has two children and a child who is disabled because of a birth injury, and required round the clock care. The court may cover the cost of a nanny and/or the value of lost income to the family. In Birth Injury Cases, damages for emotional suffering may also be available, and as with other personal injury cases, punitive damages may be assessed at the discretion of the court.

Death of an Infant

Birth Injury lawsuits differ considerably from lawsuits for the wrongful death of a newborn. In most cases, if the baby dies, the recoverable damages decrease considerably. This is because when a child dies, the lawsuit against the doctor, hospital, etc goes from being a medical malpractice case to a wrongful death case. That is, the lawsuit is filed by the parents for the benefit of the parents, rather than for the benefit of the injured baby. In most wrongful death actions due to the death of a baby, no damages awarded to the child, with the possible exception of damages that may have occured when the child was alive (i.e. pain and suffering).

Parents of a baby who dies due to the negligence of a doctor or hospital should be able to recover what they would have received from the child in terms of money and services. However, this amount is then reduced by an estimate of what the parents would have spent on the child. The amount spent on rearing a child usually outweighs the amount that parents receive from a child. Funeral expenses and reimbursement for medical expenses are usually available and most states allow parents to recover for non-economic damages.

Distribution of Money Damages

Following a Birth Injury Settlement, the proceeds from the settlement are first distributed to those who are owed money. This includes: doctors, attorneys for fees and expenses, the insurance company, and parents for their out-of-pocket payments to doctors. In some states, the parents' of the injured baby then receive the rest of the settlement money to be used on behalf of the child. However, most states do not allow this. Rather, the money is placed in a blocked account and/or an annuity. This limit the ability of parents to spend the settlement money for their own benefit. Control of the account is at the control of the court and the annuity pays out to the injured child when he or she reaches the age of majority; this is usually 18. When the settlement involves an annuity, it is referred to as a structured settlment. It should be noted that, aside from the compensation awarded for the benefit of the child, parents may also receive damages for their own claims stemming from the birth injury. These usually revolve around emotional suffering and for the costs associated with caring for the injured child.

Claims Against HMOs

An HMO (Health Maintenance Organization) physician can be sued for injuring a child at birth due to negligence. Furthermore, if the doctor is an employee of the HMO, a claim of vicarious liability can be brought against that HMO. Vicarious Liability means that a third party who, though they did not directly cause the injury, is still liable, because of their position or the circumstances surrounding the incident. This is most often used because employers are responsible for their employees' actions. Consequently, because the HMO is responsible for the doctor's malpractice, the HMO can also be sued.

However, it should be noted that birth injury lawsuits claiming vicarious liability against HMOs are uncommon, as HMOs do rarely employ their doctors directly. Rather, doctors are employed as independent contractors. As a consequence, lawsuits against an HMO because of a birth injury caused by one of their doctors are often hard to win.

Birth Injury Claim Alternatives

Filing a Birth Injury Lawsuit is not the only way to handle a birth injury. Two alternatives to filing a birth injury claim are mediation and arbitration, and they should be considered. Some insurance companies include these alternatives in their insurance plans, and consequently they must be followed before going to court. Mediation and arbitration mean that the dispute will not be handled by the court and settling by settling a birth injury case in this manner, it means that the case is then closed.

All content on Accidents.com is for informational purposes only and is NOT intended as legal or medical advice. Please seek advice from a professional on any related topics.

Tags:  Birth Injury · Legal Help · Medical Accidents