A serious birth injury may cause physical, emotional, and financial harm, especially if it leads to a permanent disability. A child and their family may find that their lives are altered forever. Some birth injuries result from medical malpractice, such as a failure to properly handle childbirth complications or a failure to promptly diagnose and treat a health condition in a mother or baby. When this happens, parents can bring a medical malpractice lawsuit against the health care provider who was at fault. This usually involves proving certain elements:
The health care provider was required to meet a certain standard of care, consisting of the practices accepted by health care providers in their field
The health care provider departed from this standard of care, whether by doing something that they should not have done or failing to do something that they should have done
The departure from the standard of care caused harm to the mother, the child, or both
The mother, the child, or both sustained damages that are reasonably quantifiable
Parents bringing a birth injury lawsuit have the burden of proving each of these elements. However, the standard of proof is relatively lenient. They must show simply that each element is more likely than not to be true.
Types of Damages
Damages in birth injury lawsuits may consist of economic and non-economic damages. Economic damages account for easily quantifiable, objective forms of harm, such as the costs of past, present, and future medical treatment. This may include surgeries, therapies, medications, and assistive devices, among other things. Non-economic damages account for subjective harm, often including pain and suffering and loss of enjoyment of life.
Some state laws may cap damages in birth injury cases, but often these caps apply only to non-economic damages. This means that a family still could recover the full scope of any treatment costs.
Economic and non-economic damages are considered compensatory damages, since they are meant to compensate a victim for their injuries. Some very rare medical malpractice cases may involve gross negligence, recklessness, or intentional misconduct. In these extreme situations, punitive damages may be awarded in addition to compensatory damages to punish and deter health care providers.
The Role of Experts
Unlike many personal injury cases, birth injury lawsuits usually hinge on expert testimony. This is because the standard of care in these cases is a professional standard of care, rather than what an ordinary person would do. Qualified experts who are familiar with the defendant’s field must describe the standard of care to a jury or judge. They also must describe how the defendant deviated from the standard and caused injuries to a mother or child. State laws on expert qualifications vary, but often an expert must have teaching or practical experience in the same field as the defendant. Doctors may be restricted to spending a certain amount of their time serving as expert witnesses.
Affidavits of Merit
In many states, a plaintiff pursuing a birth injury case must file an affidavit of merit with their complaint, or within a set time thereafter. This requires retaining a medical expert to review the records from which the case arose and provide an opinion that malpractice likely occurred.
Experts also may help a family prove the scope of the damages that resulted from medical errors. This may be especially vital in cases involving permanent disabilities. Experts might describe the likely future course of the condition, the treatments that will be needed, and the impact of the condition on each area of a child’s life. Some experts might come from outside the medical field, such as vocational experts and economics experts. If parents have developed a life care plan for their child, this may provide assistance in documenting damages.
Statutes of Limitations
Each state imposes deadlines for filing various types of lawsuits, which are known as statutes of limitations. Even if a case has a strong substantive basis, a court may dismiss the case if it was filed after the statute of limitations expired. Plaintiffs bringing birth injury cases should be aware that the applicable statute of limitations may differ from other personal injury cases, and even other medical malpractice cases. States provide varying ways to calculate the statute of limitations when a child has been injured. They may start the statute when a child reaches a certain age, for example, or they may extend the statute until a certain birthday or simply provide a longer limitations period.
Defense Must Be Raised
A court usually will not dismiss a case for violating the statute of limitations unless the defendant uses this argument as a defense. If the defendant does not raise the statute of limitations, the defense usually will be considered waived.
Some injuries from medical malpractice may not be obvious at first. This could cause the statute of limitations to expire before a plaintiff finds out that they may have a claim. Many states have responded to this problem by modifying the statute of limitations with a discovery rule. This may alter the time limit for bringing a claim. Working out how the statute of limitations and the discovery rule interact, and how each applies to a birth injury case, may be less straightforward than it seems. Parents should consult an attorney as soon as possible to ensure that they do not inadvertently violate the statute of limitations.