Guide to Finding a Birth Injury Lawyer
If you Google "birth injury lawyer" you are going to get either a law firm saying please hire us or a website that sends prospective birth injury clients to attorneys. This page does neither.
Instead, the purpose is to help you make the right choice without recommending anyone. Because the lawyer you pick might be the most important single decision you make for your child.
Birth injury attorneys want your case because cerebral palsy and other injuries to a baby during childbirth can be very lucrative. Compensation in settlements and jury verdicts can run in the multi-millions and go over $200 million. The purpose of this page is to give you some wisdom on how to find the right legal team for your child and your family.
Birth injuries happen for a wide range of reasons and in many cases, they are unpreventable even with the most diligent and advanced obstetrical care. Sadly, however, a certain percentage of birth injuries are the result of negligent medical care or supervision during pregnancy or labor and delivery. Doctors and hospital staff deliver a lot of babies and, like all of us, they occasionally make medical errors. They take shortcuts. They get distracted. When this type of natural human error occurs in obstetrical care it can and negligence often does result in the baby suffering serious and permanent injuries.
In situations where a birth injury is caused by poor medical care, our civil legal system entitles the child and parents to get financial compensation from the responsible healthcare providers. The first step in seeking monetary compensation for a birth injury involves finding and retaining a birth injury lawyer. Finding a good birth injury attorney to handle your lawsuit is very important to your chances of success but this process can be difficult and confusing for most people. This page will guide you through the challenges of this process. This is NOT an advertisement or an effort to refer leads to any specific attorney.
But taking legal action against your obstetrician or other health care provider can be hard. You may like your doctor or nurse. But the question is whether that relationship is worth missing out on the opportunity for lifetime care for your child. It is also worth remembering that usually the doctor or nurse is paying your settlement or jury verdict. An insurance company or hospital is behind the great majority of these cases.
A birth injury lawyer is an attorney who specializes in representing plaintiffs on a contingent fee basis in medical malpractice cases involving birth injuries. Birth injury lawsuits are a specific type of medical malpractice suits. They involve allegations that doctors, hospitals, or healthcare professionals breached the standard of care resulting in the birth injury.
Birth injury litigation is more complex and expensive than other personal injury cases like auto accidents or slip and fall claims. Not just every medical malpractice attorney can handle these types of claims. Birth injury cases are a special type of medical malpractice case. These claims present additional layers of complexity for lawyers. Most lawyers who handle malpractice will also handle birth injury cases, but they may not have much experience with birth injury claims. You want an attorney who specializes in birth injuries.
Birth injury lawyers will generally take on any case in which a baby suffered a serious birth injury such as cerebral palsy, Erb’s palsy, HIE, etc. The two things lawyers look for in a “good” birth injury case are (1) evidence of possible medical negligence; and (2) the severity of the injury.
The severity of the injury is probably the most significant. Keep in mind that bringing a birth injury malpractice case can be a very expensive endeavor for the lawyer. The lawyer may have to pay over $200,000 to expert witnesses and if they lose the case they get nothing back. So for a lawyer to take on a birth injury case the injury needs to be serious enough to justify the financial investment. The expert witnesses don’t charge less for cases involving minor injuries so there is a minimum expense threshold for a birth injury attorney on all cases.
For example, let's say your baby injures his arm during delivery because the doctor pulled him out too forcefully. He is diagnosed with a mild form of Erb’s palsy, but the paralysis in his arm goes away and he fully recovers after 3 months of therapy. This is a viable birth injury lawsuit. But most lawyers will turn it down even if they believe a breach of the standard of care can be proven. Why? Because the injury, while awful, does not enough to justify the cost of bringing the lawsuit to trial.
First of all, the idea of the "best birth injury lawyer" is just plain silly. Many law firms are competent to handle a birth injury case. Still, it is a very specialized practice. Many pretend to be birth injury lawyers who most certainly are not.
Birth injury cases are very specialized and complex malpractice cases. They require a high degree of skill, knowledge, and experience by the lawyer. The key to finding a good birth injury lawyer is finding someone who has a proven track record of success in birth injury lawsuits. Today, most people use the internet to find attorneys. Birth injuries attorneys are no exception to this. But you have to be careful.
A simple internet search for “birth injury attorneys” in your area is probably a good starting point in your search. Take a look at the information and reviews on each site, paying particular attention to prior birth injury cases and success stories for the firm. From that search make a list of 3-4 firms and call them to start the consultation process. You should get a good idea over the phone whether there is interest in your case.
Retaining a great birth injury lawyer should not cost you anything out of pocket. Like all personal injury and malpractice lawyers, birth injury lawyers work on a contingency fee basis. This means that the lawyer handles your case and pays for all the expenses in the case and then receives a percentage fee of whatever money they get for you in the end. If they don’t win your case you don’t owe them anything.
Contingent fee percentages vary by state but typically range between 33%-40%. Could a reasonable lawyer ask for more? Maybe. But a higher fee does raise an eyebrow are requires some explaining. The percentage fee does NOT typically include expenses that also come out of the client’s compensation.
Accordingly, the best birth injury attorneys will give you a free case review. So if you are offered anything other than a free consultation, you are heading in the wrong direction.
Once you retain a birth injury attorney, the first thing they will do is investigate your claim to determine if there is sufficient evidence of medical negligence to file a lawsuit. The investigation begins with requesting and collecting all medical records regarding the birth of the baby and prenatal care. This includes medical records from the hospital and all treating doctors.
After the medical records are received the lawyer will review them and identify evidence that supports medical negligence. Then the birth injury attorney will need to hire expert witnesses to review the case and give a formal opinion as to whether medical malpractice occurred. This can be a time-consuming process and may involve consultations and opinions from multiple experts. The experts are other doctors (usually, as a starting point, another OB/GYN to determine the appropriate standard of care).
If a medical expert agrees that malpractice occurred the lawyer can then file the actual lawsuit against the appropriate defendants which usually includes the doctor, nurse, and hospital involved in the delivery.
In a birth injury lawsuit, both the injured child and the parents of the injured child have separate claims for damages.
The parents have a separate medical malpractice claim and they will be entitled to damages for past and future medical expenses and other costs required to care for their child until they are an adult.
Damage awards for the parent's past and future medical expenses in a birth injury case can be very large. Depending on how serious the birth injury is, the child may require 24-hour medical care for the next 18 years. The parents are entitled to money damages for the total cost of this medical care. In most jurisdictions, this is true even when most (or all) of these medical expenses are covered by health insurance or some other third-party source.
There are deadlines to file a birth injury lawsuit. The statute of limitations varies from state to state. Get a free case review from a birth injury lawyer (you should call more than one) and find out the statute of limitations that applies to you.
- Statute of limitations to bring a birth injury lawsuit by state
The amount of a compensation payout in birth injury settlement will depend mostly on the baby's injuries, the jurisdiction, and how well your legal team prepares the case. These offer some insight on the settlement value of birth injury cases: