Bringing a child into the world represents a new beginning filled with hope and possibility. But if that child is born with an injury, their future seems bleak. Often, birth injuries will require physical therapy, special education, and other types of care. However, if the injury was avoidable, it may also raise legal issues.
What is Birth Injury Lawsuit Settlement?
Medical malpractice claims involve birth injury lawsuits. Over 95 percent of birth injury and medical malpractice cases are settled out of court. As reported by the Department of Health and Human Services, medical malpractice cases result in some of the highest payouts, around $350,000 on average. About 10% of malpractice claims are related to childbirth. The payout for permanent injuries, especially brain injuries, is higher when they require lifelong care.
In general, average settlement information is useful, but it doesn’t tell you much about any particular case, which is why you need an attorney on your side. Birth injury settlements are usually affected by these two factors:
- The extent of care a child will require over the course of their lifetime, including medical, nursing, therapeutic, and attendant care
- Life expectancy of a child who has been injured
A birth injury claim may allow a plaintiff to recover damages for:
- Medical expenses in the present and the future
- Other healthcare costs such as therapy, in-home care, and home modifications
- Loss of wages
- Emotional trauma and pain
What Can You Expect From A Birth Injury Lawsuit?
Your lawyer will support you throughout your journey, from filing a claim and gathering evidence to negotiating successful birth injury settlements and proceeding with the trial.
Most birth injury lawsuits follow the same general path despite the fact that each case is unique. You will be able to feel more comfortable with the outcome if you know what to expect. As a parent, it can be daunting to prepare for a lawsuit relating to birth injuries. However, if you choose the right lawyer for the job, you will be able to proceed through the legal process confidently.
Here is a detailed overview of what you can expect from your lawyer:
- To File The Claim On Your Behalf
You or your lawyer must initiate the birth injury lawsuit by filing the initial injury claim. The birth injury lawsuit must be filed in the county where the incident occurred. To file your claim, you need to complete the correct forms within the deadline set by the state.
You will file a medical malpractice lawsuit to recover compensation for birth injuries. A birth injury claim must be filed within eight years of the date of the incident or until the child reaches the age of 22 if he or she has disabilities. Medical malpractice lawsuits of other types have shorter, two-year deadlines. If you miss the deadline, you will generally not be able to file.
An affidavit of merit may also be required by some medical malpractice laws. As part of the affidavit, the plaintiff or his/her attorney states that they have consulted with a health care professional and that this professional believes that there is a “reasonable and meritorious cause” for the lawsuit. The medical professional must have expertise in the related medical concern, must be familiar with the lawsuit, and be currently practicing or teaching medicine.
If you cannot obtain an affidavit of merit within the statute of limitations, you have until 90 days after filing your demand letter to attach one. Your claim will most likely be dismissed without an affidavit of merit. An experienced birth injury attorney can assist you in fulfilling the affidavit requirement according to state law.
- To Build Your Case Stronger And Gather Evidence
A birth injury claim will give the defendant a certain timeframe (usually 30 days) to respond after it is filed. If the defendant accepts the claim, a settlement negotiation will take place. If the defendant denies the claim and refuses to pay, then you have the right to take the case to court to obtain compensation.
In the meantime, your attorney will build your case while you wait for the defendant to answer your complaint. To prove the defendant’s negligence and the plaintiff’s birth injury lawsuit, your lawyer will gather all available evidence. This evidence might include medical records and photographs of injuries, eyewitness reports from people who were present in the delivery room, and prior complaints against the physician. Medical expert testimony may also be considered as evidence. Together, you and your attorney will devise a comprehensive legal strategy for the future.
- To Successfully Negotiate A Settlement
In the event that a defendant agrees to your claim, you can begin settlement negotiations. Settlements for birth injury lawsuits are usually accomplished without the need for litigation. It is often possible to reach a successful compromise without the necessity of a costly or prolonged malpractice trial if you hire an attorney to represent you during negotiations. Taking your case to a settlement with the help of an attorney will ensure you don’t settle for less than your case is worth and will allow you to concentrate on your child’s treatment and recovery.
You could receive compensation for all of your medical expenses, physical therapy costs, special education costs, and other economic damages related to the birth injury. An out-of-court settlement is often the best and cheapest option for resolving a birth injury claim. However, if the defendant refuses to negotiate a fair amount – or if they refuse your claim outright – they will help you through the court process.
- The Court Process
If your claim requires a trial, the discovery phase will be the first phase of the court process. During discovery, the parties work together to collect information by conducting research, obtaining evidence, and interviewing other parties. However, it could take months to obtain them because hospitals are often slow to respond to requests for medical records and other evidence.
During the discovery process, the other party is requested to provide documents and depose witnesses. It is crucial for the medical malpractice discovery process to obtain expert witness testimony. Once the discovery process has ended, the trial will begin. After listening to both sides, the judge or jury will determine whether the plaintiff has presented sufficient evidence against the defendant. If they are successful, the court will decide on a sum suitable for compensating the victim for the losses they suffered. Otherwise, the plaintiff may file for an appeal.
Conclusion
A small error or lapse in attention is enough to cause a child to receive an injury that changes their lives forever. It can be challenging to prove that medical professionals made a mistake when they enjoy a reputation and have very high standards. In order to achieve justice, you must seek out a reputable firm that has recovered many cases and can give you some hope of success.
Settlements for birth injury lawsuits can take between three and six months. Depending on the facts of your case, it could take one year or longer for a verdict to be reached. The claims process can be expedited as much as possible for you and your family by working with an attorney. You can achieve better results, save money, and avoid common mistakes with the right steps.
