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How to File a Birth Injury Lawsuit

By
Daisy Rogozinsky
/
November 14, 2022
Last reviewed by
Boruch Burnham, Esq.
/
June 1, 2023

If you or your child have been injured in the pregnancy or delivery process due to the negligence of a healthcare provider, you may be able to receive financial compensation by pursuing a birth injury claim against any party that is responsible or liable for damages caused, whether it be a doctor, nurse, hospital, or other medical professionals. A lawyer can help you pursue your claim to help you recover compensation for your medical bills, healthcare costs, and more.

One thing you should keep in mind at the outset is that suing multiple defendants in the same lawsuit is common in birth injury cases. For example, if your child's birth injury occurred during a complicated delivery, you may have a claim against the attending obstetrician, the assisting nurses, and even the hospital where the birth occurred. 

In this article, we’ll outline a number of the steps and processes that may be involved in pursuing your claim. 

1. Consider Hiring an Attorney with Experience in Pursuing Birth Injury Claims 

A skilled attorney with extensive experience in birth injury malpractice cases may prove invaluable in getting you the maximum compensation possible. Many offer free consultations during which they will discuss the facts of your case, after which you can both determine whether to pursue your claim together.

2. Sending a Demand Letter

Your lawyer may recommend pursuing compensation from any responsible party before initiating a formal lawsuit. If this is the case, they might draft and send a demand letter explaining why you believe the healthcare provider is responsible for the birth injury and the compensation you seek. If they accept the terms, you can receive compensation without having to file a lawsuit. 

3. Building your Case

If a demand letter isn’t sent or its terms are rejected, you may start preparing to initiate a formal lawsuit. As part of this process, you will need to establish some essential allegations that you intend to prove to prevail on your claim, including:

  • The party or parties that are responsible or may otherwise be liable to compensate you for the birth injury
  • When, where, and how the incident occurred
  • The nature and extent of the injury 
  • How the birth injury could have been avoided or prevented through the exercise of due care. 

4. Initiating your Lawsuit

With the basic facts in hand, you or your attorney will draft a complaint. The complaint identifies the healthcare provider(s), hospital, and/or other parties you are suing, describes the factual background, allegations, and legal claims you are asserting against them, and states the relief you seek (e.g., compensatory damages to cover medical expenses, ongoing treatment costs, rehabilitation, pain, and suffering, etc.).

The complaint must be filed with the court with copies served on the defendants, after which the defendant(s) will be required to respond to the complaint with an answer addressing the allegations and legal claims made against them in the complaint. Note that timeframes and filing deadlines will vary by jurisdiction, and if a defendant does not respond to your complaint, you may be entitled to have the court enter a default judgment in your favor.

5. Pre-trial Discovery

The lawsuit will enter the pre-trial phase after the defendant has filed its answer. This begins with a process called discovery, in which the parties will be required to exchange information, records, and other documentation that may be relevant to any claims or defenses of the respective parties, which may include: 

  • Firsthand accounts from those present
  • Hospital bills
  • Medical expenses
  • Health records

Each side will likely retain an expert witness who will provide their professional opinion and testimony regarding the appropriate standard of care, whether it was breached, and whether the breach caused the birth injury. Their testimony will be presented to the court or jury to help them understand complex medical issues and evaluate whether the defendant's actions deviated from the standard of care expected of a reasonable healthcare provider.

6. Settlement Negotiations

As with medical malpractice cases in general, most birth injury lawsuits are settled out of court. Settlements are an attractive alternative to going to trial for both parties due to the significant time and costs associated with going to trial and those involved with filing and defending any appeals from the trial court’s determinations and judgment.

7. Proceeding to Trial

The purpose of a jury trial is for the jury to make findings of fact and the judge to make findings of law. That is, the jury will view the evidence, hear the witnesses be examined and cross-examined, and have an opportunity to listen to the opinion of the expert witnesses, and will then be required to determinations as to the credibility of the witnesses, the weight of the evidence presented, and the ultimate liability or responsibility of the parties involved.

After all the evidence has been presented, the judge will provide the jury with instructions on the applicable legal standards, burdens of proof, and other considerations the jury must apply in reaching its verdict, which is the jury’s conclusion as to whether, and to what extent, each defendant is liable based on the facts presented by all parties involved. Finally, the court will issue a judgment based on the jury’s verdict. If the jury found a particular party was negligent in causing or exacerbating the birth injury, the court may issue a judgment setting forth the compensation, damages, and other relief you will be entitled to. 

8. Appeals

Both plaintiffs and defendants are entitled to appeal a decision or decisions made by the trial court. That is, even if the court ruled in your favor to some extent, you have the opportunity to challenge aspects of the court's decision with which you are dissatisfied. For instance, you may seek a higher compensation amount than what was awarded or argue for the inclusion of punitive damages if they were not granted by the court. The appeals process provides an avenue to present your arguments and evidence before a higher court to achieve the most favorable outcome and maximum compensation you may be entitled to.

Through AAL’s directory, you can find numerous attorneys with years of experience practicing medical malpractice law and pursuing birth injury claims.

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