Birth Injury Lawsuit Guide 2024 – Forbes Advisor

Here is an overview of what occurs in a birth injury case. States may have different procedures, but generally, most lawsuits take these steps.

Step 1: Hire an Attorney

It is difficult, if not impossible, to navigate a birth injury medical malpractice case without an attorney. These matters are often complex and require access to experts and time spent in negotiations. An attorney has the professional skills and experience to handle a birth injury lawsuit.

Most attorneys begin a birth injury case with a free consultation and case review. They assess the potential client’s case for a valid medical malpractice claim. If they take the case, the client signs a fee agreement (usually a contingency fee agreement) and the law firm starts preparing the case.

Step 2: Investigate and Find Evidence

Once hired, attorneys will:

• Order medical records regarding pregnancy and prenatal care
• Order hospital notes and records from the delivery
• Order medical records regarding treatment the baby received
• Collect witness statements

This evidence helps establish if the doctors missed any diagnoses or committed errors. Attorneys will either review medical records directly or hire medical experts to assess them.

Step 3: Settlement Negotiations

Most medical malpractice claims, including birth injuries, settle out of court. Many doctors and hospitals wish to avoid negative publicity, so they are often willing to settle.

An attorney may submit a demand package to the doctor’s or hospital’s malpractice carrier before filing a lawsuit. The demand package includes a statement describing the events leading to the birth injury and how it affects the baby and parents. An attorney then attaches records and other documentation to support the claim. The demand then ends with a dollar amount that will settle the matter.

A malpractice carrier may ignore the package or make a counteroffer. This dialogue will go back and forth until parties agree on a settlement amount. If there is no agreement, the attorney will likely file a lawsuit.

Step 4: File a Lawsuit

Attorneys file medical malpractice lawsuits if they can’t negotiate a fair settlement or the statute of limitations deadline is close. They file the lawsuit with the appropriate court in the county where the birth injury took place. The parents become the plaintiffs, and the doctors, hospital and other medical providers become defendants.

The court will assign a number and case schedule to the lawsuit. Many states require mediation and arbitration before allowing a matter to go to trial. Settlement negotiations continue.

Step 5: Discovery

Attorneys can find more information supporting the birth injury case through discovery. Discovery is a step during which parties exchange information. It includes taking depositions, or sworn testimony, from the parties in the case.

For example, the defendants’ attorneys may want to depose the parents and family members of the injured infant. Likewise, the plaintiff’s attorney will depose doctors and other medical staff involved in the case. All statements are taken under oath and considered testimony.

Step 6: Trial

Medical malpractice cases rarely go to trial, and that is especially true with birth injuries. These cases generate jury sympathy and often result in high verdicts against doctors and hospitals. That’s why settling the matter is preferred over a trial.

Also, trials are often risky, stressful and painful for plaintiffs. No one wants to relive the day their baby died or sustained a disabling condition. Plus, there is always a risk the judge or jury will award no compensation.

If the matter moves to trial, a judge and jury will hear arguments and testimony from both sides. They use that evidence to determine a verdict.