What You Need To Know Before Filing A Birth Injury Lawsuit

By Author: Frank Martyn
Total Articles: 15
Comment this article

If you suspect that your child was a victim of medical negligence, committed at the hospital during his birth, you should contact an attorney to see if there was indeed a malpractice causing birth injuries. However, before your lawyer can file a birth injury lawsuit, here are some things that need to happen:

The case must be started timely

Every case filed in court must be started within an applicable statute of limitations in order to survive from being dismissed. In New York the applicable statute for starting a medical malpractice suit is 2 ½ years from injury. However, if the attorney brings a lawsuit for birth injuries of a child his time may be tolled for infancy, but never longer than 10 years or before the child reaches 21 ½ years, whichever isless. In addition, if a summons & complaint is filed against a public hospital, the applicable statute of limitations is a year and 90 days, plus the hospital must be aware of the claim within 90 days of its occurrence, in order to preserve all applicable evidence.

A medical expert must review the case

birth injury lawsuit ...
... in New York cannot be filed without an attached Certificate of Merit, in which plaintiff’s attorney affirms that he had the case reviewed by an expert who felt that the case may have merit. The legislature instituted tougher rules for filing of the summons & complaint against the doctor allegedly in order to curb the rising medical malpractice insurance costs. Getting the case looked at by an expert does not guarantee that it will be won, as unfortunately majority of them are lost at trial. What the Certificate signifies to the court is that the matter is not frivolous.

Physician must violate a standard of care to be liable

In every lawsuit for birth injuries the attorney must be able to prove that the physician departed from the acceptable standards of medical care during labor and delivery, thereby causing injury to the infant plaintiff. In cases of Erb’s Palsy, where a trauma to the upper extremities is sustained by the excessive pulling and traction in order to release the stuck shoulders, the lawyer can often argue that alternatives, such as a c-section, existed to the obstetrician, and another doctor in his shoes would have resorted to the safer way of getting the newborn out.

Types of damages that can be recovered

Malpractice causing birth injuries often carry with it lifelong pain and suffering for the child, as well as medical and hospital expenses for his parents. When the attorney files a lawsuit on behalf of the family for birth injuries he needs to sue for certain damages in the summons & complaint, thus notifying the defendant and the court what type of recovery is being sought. In many cases the damages sought are both monetary and non-monetary, and the birth injury lawsuit will delineate which plaintiff (infant, parent or guardian) seeks a particular recovery from the negligent doctor.

If you suspect that your child has birth injury due to physician’s negligence, you need to contact Duffy & Duffy concerning instituting a birth injury lawsuit on behalf of your child. As a specialized birth injury law firm law, we handle erb’s palsy, cerebral palsy lawyers and other types of birth injuries.