How to Sue for Birth Injuries

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1Building Your Case

2Filing Your Complaint

3Litigating Your Case

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Birth injuries generally happen because something went wrong with the delivery process itself. If your child was injured at birth, you may have a personal injury or medical malpractice lawsuit against the doctor or healthcare provider in charge of the delivery. To sue for birth injuries, you must prove that the medical professional who handled your baby's delivery failed to meet the generally accepted standard for medical care.

Steps

Part 1

Part 1 of 3:

Building Your Case

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   Gather information. You need information about your healthcare provider as well as medical records related to your prenatal care and delivery to establish liability for your child's birth injuries.

   • Birth injuries generally involve one of two situations: Either your doctor failed to adequately assess or respond to conditions during delivery, resulting in an avoidable injury to the baby; or the baby was injured due to a prenatal condition, such as a drug you took while pregnant that was prescribed by your doctor.
   • Improper use of medical devices such as forceps also can lead to birth injuries.
   • Keep in mind that when you sue for birth injuries, you're technically suing on your child's behalf, not for your own benefit. Typically any damages you receive, whether you win your case or settle out of court, will be given to your child in the form of a trust.
   • You also may be able to include a claim for your own pain and suffering, in which case you would need evidence of that, such as a report from a psychologist or testimony from friends and family members.
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   Hire an attorney. Since attorneys who practice personal injury or medical malpractice law typically work on a contingency-fee basis, hiring an attorney won't result in any out-of-pocket expense.

   • Aside from cost concerns, medical malpractice law is extremely complex and involves procedural rules not present in other types of cases, so to win a lawsuit against a healthcare provider you need an experienced attorney.
   • Look for an attorney who has specific experience with birth injury cases. You may want to interview several attorneys, and ask them how many cases similar to yours they've worked on and what percentage of their practice is devoted to birth injury cases.
   • Your attorney will need to know about your medical history before you became pregnant. He or she likely will have you sign a medical records release form so those records can be analyzed.
   • Keep in mind that the time limit, or statute of limitations, for filing your claim may be as short as one year, so you need to act as quickly as possible after the birth of your child.
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   Decide which court to use. Your attorney will help you determine which court has personal jurisdiction over the healthcare provider you want to sue, as well as subject matter jurisdiction over your claim.

   • Typically you will need to sue in the court located in the county or district where your baby was born.
   • However, the court in which to sue and which state's laws apply can get complicated in medical malpractice cases, particularly if you gave birth in a different state than the one in which you reside.
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   File your notice of intent to sue. If you're suing for medical malpractice, many jurisdictions require that you first file a document called a Notice of Intent to Bring a Lawsuit (NOI).

   • Your attorney will contact a doctor who is board-certified in the same discipline as the doctor you intend to sue and get his or her opinion on your lawsuit.
   • Typically this doctor must provide his or her certification that your case has merit.
   • The notice document must be served on your doctor and his or her malpractice insurance company, and puts them on notice that a lawsuit is to follow.
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   Complete your complaint. Once your attorney has assessed your case and decided what claims you have, he or she will draft a complaint to initiate your lawsuit.

   • Your complaint will identify you and the doctor you are suing, as well as the doctor's malpractice insurance company or any other hospitals or facilities you're also suing.
   • The allegations form the bulk of your complaint and list the facts that you believe entitle you to receive monetary damages, and the legal theory under which you believe you're entitled to those damages.
   • Your complaint also will list the damages you believe you are entitled to receive as a result of the defendant doctor's actions or negligence.
   • Before you file your complaint, your attorney typically will go over it with you so you understand the allegations and what you're asking the court to do.
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Part 2

Part 2 of 3:

Filing Your Complaint

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   Take your complaint to the clerk's office. To initiate your lawsuit for birth injuries, you and your attorney must file the complaint with the clerk of the court where you want the case to be heard.

   • Depending on the rules in your jurisdiction, you probably don't need to be present when the complaint is officially filed. However, you might want to go so you can see the process.
   • The clerk will stamp your complaint and all copies with the date they were filed after your attorney pays the filing fee. One of those copies will be for your records. The rest must be delivered to the defendant(s).
   • The clerk also will issue a summons for each defendant. The summons tells the defendant how long he or she has to file a response to the lawsuit and the next day he or she has to appear in court, if anything has been scheduled.
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   Have the defendant served. After you've filed your complaint, it typically must be hand-delivered to the healthcare provider you're suing so he or she has notice of the lawsuit.

   • In a medical malpractice case, you typically must serve both the defendant doctor or other healthcare provider and his or her malpractice insurance company. Depending on the scope of your claims, you also may be suing the hospital where you gave birth.
   • Typically a sheriff's deputy will hand-deliver the complaint to each defendant and fill out a proof of service form to file with the court. In some jurisdictions, you may be able to serve your complaint using certified mail with returned receipt requested.
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   Wait for a response. Once the defendant receives your complaint, he or she has a limited period of time – typically 20 to 30 days – to file an answer to the lawsuit or you may be eligible to win by default.

   • Don't be surprised or insulted if the defendant files a motion to dismiss in response to your complaint. This is often standard litigation practice for defense counsel in personal injury and medical malpractice cases.
   • In the answer, the defendant responds to each of the allegations set forth in your complaint. Typically a defendant will deny most if not all of your allegations.
   • This doesn't necessarily mean the defendant is saying the allegation isn't true – rather, he or she simply isn't admitting that it is true, meaning you must prove it at trial.
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   Consider any settlement offers. Typically if your lawsuit survives a motion to dismiss, the defendant will offer to settle your claim rather than going on to trial.

   • Keep in mind that while basic economic damages such as medical expenditures can be easy to calculate, prospective damages are not.
   • In a birth injury case, you likely are looking at damages such as loss of future earning capacity, which may be difficult if not impossible to calculate.
   • When you consider a settlement offer, you have to take your child's best interests into account. Your attorney and other doctors can help you understand the costs you and your child are likely to incur over the rest of the child's life as a result of the child's birth injuries.
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Part 3

Part 3 of 3:

Litigating Your Case

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   Conduct discovery. If you haven't settled the case, litigation continues through the discovery process with you and the defendant exchanging evidence and information about the claim.

   • Discovery includes interrogatories, which are written questions the party must answer under oath, requests for production of documents, and depositions.
   • Depositions are interviews with parties or witnesses that are conducted under oath. A court reporter transcribes the interview and the written transcription is available for later use.
   • Production of documents and depositions will be key to your birth injuries lawsuit. Through requests for production of documents, you will request records of the birth and your prenatal care from your doctor and the hospital or birthing facility where your baby was delivered.
   • Expert witnesses are essential to a successful medical malpractice suit, so you and your attorney typically will be deposing several doctors regarding the standard of care for delivering a baby or providing prenatal care, and whether your doctor failed to meet that standard.
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   Attend any pretrial hearings or conferences. The court may schedule hearings on any motions filed through the course of discovery, as well as pretrial conferences to make sure the litigation is on track.

   • Typically only attorneys need to be present for status conferences and the like. During these conferences, the attorneys work with the judge to outline the case and establish the issues that will be discussed at trial.
   • If either you or one of the defendants files any motions prior to trial, such as a motion for summary judgment, you may have to attend those hearings. Some motions are more procedural, and the judge may not even schedule a hearing in open court.
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   Participate in mediation. Many courts require parties in personal injury or medical malpractice cases to attempt mediation before a trial will be scheduled.

   • A mediator is a neutral third party who has training in dispute resolution. He or she will work with you and the defendants to come to a mutually agreeable settlement to your claim.
   • In a medical malpractice case, you and your attorney will attend the mediation session, as well as your doctor and his or her attorney and a representative of his or her insurer.
   • Anything discussed in mediation is confidential, and cannot be used in the trial if an agreement isn't reached.
   • If you do reach a settlement through mediation, the terms of that settlement typically also are confidential. For this reason, medical care providers and insurers may prefer to resolve the matter through mediation rather than going through a public trial.
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   Get ready for trial. If you are unable to resolve your case through private settlement negotiations or through mediation, your next step is to present your case to a judge or jury.

   • Typically your attorney will advise a jury trial for your birth injury lawsuit, particularly if your state doesn't have any law limiting recovery in medical malpractice cases.
   • Juries in general often are very sympathetic to birth injuries and to the costs of caring for a child with special needs.
   • In the lead-up to your trial date, you will be in frequent contact with your attorney as he or she decides on the final list of witnesses to call and related matters in preparation for the trial.
   • You also may need to evaluate continuing settlement offers, even up to the date of the trial itself.
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