• Overview of birth injury claims in New York
  • Possible causes of birth injuries
  • Types of birth injuries
  • Possible signs and symptoms of a birth injury
  • What to do if you suspect birth injury medical malpractice
• Finding an Attorney for a New York Birth Injury Lawsuit
  • Costs of pursuing a birth injury lawsuit in New York
  • Choosing a birth injury attorney
  • What to expect at an initial consultation with a birth injury lawyer
  • Need help finding a New York birth injury lawyer for your case?
• Pursuing a Birth Injury Lawsuit in New York
  • Statute of limitations for New York birth injury lawsuits
  • Potential defendants in a birth injury lawsuit
  • Elements of a birth injury claim
  • Common types of evidence in birth injury lawsuits
  • Types of damages in a birth injury case
  • The impact of the comparative negligence rule on birth injury cases
  • The legal process for birth injury lawsuits
  • Birth injury lawsuit settlements in New York
• Frequently Asked Questions

Overview of birth injury claims in New York

Over the last few decades, birth injury rates have been declining. This is likely due to improvements in medical care for pregnancy and childbirth. Doctors are also more likely to use cesarean sections for difficult deliveries. Still, one study estimated that birth injuries continue to happen in about 1.9 per 1000 live births.

Often, birth injuries are an unavoidable part of labor and delivery. However, birth injuries may also be the result of medical mistakes during pregnancy, labor, delivery, or even soon after birth.

If a birth injury was caused by a medical provider failing to provide appropriate professional care, it may be possible to pursue a birth injury lawsuit. Birth injury lawsuits are a type of medical malpractice lawsuit. The defendants would typically be the medical providers involved in the mother and baby’s care.

Whether a medical provider is legally responsible for a birth injury will depend on whether they failed to act in accordance with generally accepted practices in the medical community for professionals with similar training and experience. Specialists like obstetricians are held to higher standards than generalist doctors. This is because such specialists generally have more training and specialized knowledge.

To establish the appropriate standard of care in a case, both sides of a birth injury lawsuit will engage medical experts. The opinion of a medical expert is generally required to pursue a birth injury lawsuit. These experts testify about whether they believe the medical professionals involved acted appropriately under the circumstances.

However, a medical expert’s opinion alone won’t be sufficient to establish the standard of care. Rather, the expert must demonstrate that their position is widely accepted in the medical community. The expert may achieve this by supporting their testimony with medical cases, formal studies, or other evidence.

This point is demonstrated in Lara v. New York City Health and Hospitals Corporation. In this case, a child manifested cerebral palsy at about six months old. A lawsuit was filed on his behalf, claiming that his rapid but otherwise uneventful birth may have caused cerebral palsy.

Expert testimony supporting this theory was submitted to the court. However, the court ultimately dismissed the complaint. In doing so, the court noted that the expert didn’t support his testimony with any medical writings. In other words, the expert didn’t show that his theory was widely recognized or accepted in the medical community.

For more information about building a birth injury case, including the role of experts, see Chapter 3: Pursuing a Birth Injury Lawsuit in New York.

Possible causes of birth injuries

Birth injuries may be caused by the natural forces of the birthing process. However, other injuries are the result of medical errors. Examples of medical mistakes that may injure a baby and/or mother include the failure to:

• Provide appropriate prenatal care
• Monitor the healthy development of the baby
• Diagnose and treat medical conditions of the baby or mother
• Properly prescribe and administer medications (such as prescribing a drug during pregnancy that harms the baby or the improper use of Pitocin, a drug used to stimulate labor that can cause complications for the baby)
• Identify or address complications during pregnancy or delivery (such as failing to perform a cesarean section when necessary)
• Properly perform delivery techniques (including improper use of delivery instruments, such as vacuum extractors or forceps)
• Provide appropriate care for a newborn in the Neonatal Intensive Care Unit (“NICU”)

Note that not all mistakes will support a lawsuit. As noted in the section above, the key question is whether the medical professional acted according to the standards set by the medical community.

Types of birth injuries

Birth injuries come in many forms. Some are minor and heal in a matter of days or weeks. Others are more serious, with lasting effects. Some examples of common birth injuries are described below. To determine if an injury may support a legal claim, you should consult a New York birth injury lawyer.

Brain damage resulting in cerebral palsy or other disorders

Brain damage is one of the most common types of birth injuries. Brain damage can result from:

• Skull fractures (including due to improper use of forceps or maneuvers during delivery)
• Infection
• Preeclampsia in the mother
• Jaundice
• Other untreated conditions

Damage to the brain also often occurs due to lack of oxygen to the baby’s brain before, during, or after delivery. During labor and delivery, the medical staff should use electronic fetal monitoring to assess the infant’s heart rate and check for fetal distress. If a baby is in distress, it may mean they’re not getting enough oxygen to their brain.

In a lawsuit, a medical expert would review the fetal monitoring strips for signs of fetal distress or lack of oxygen. Medical institutions generally must preserve these strips for at least seven years.

According to the Centers for Disease Control and Prevention (“CDC”), if a baby suffers oxygen deprivation during birth, they may develop cerebral palsy. “Cerebral palsy” is a generic term that covers a number of brain function and body movement disorders. Many people with cerebral palsy have related conditions as well, such as:

• Intellectual disability
• Seizures
• Vision, hearing, and speech problems
• Changes in the spine, such as scoliosis
• Joint problems

Cerebral palsy is the most common childhood motor disability. About 1 in 345 children in the United States have been identified with cerebral palsy.

Nerve injury resulting in Erb’s palsy or other nerve conditions

Nerve injuries are another common type of birth injury. Such injuries may result from excessive force, pulling, or use of instruments like forceps during delivery. This is more likely to occur if a baby’s shoulders get stuck in the mother’s pelvis during delivery (called “shoulder dystocia”). Nerves in the baby’s arms, shoulders, neck, and head are especially at risk for overstretching or tears.

For example, Erb’s palsy can be caused by injury to the brachial plexus nerves. The brachial plexus nerves connect the spinal cord to the arms and hands, so symptoms of Erb’s palsy include weakness, loss of feeling, or even paralysis in the arms. This happens in an estimated 0.9 to 2.6 per 1000 live births.

Bone and skull fractures

During difficult deliveries, a baby’s bones may be fractured as well. Clavicle (collar bone) fractures are especially common. According to one study, they can occur in up to 15 per 1000 live births. Clavicle fractures may also result in damage to the brachial plexus nerves. This can cause Erb’s palsy as described above.

Skull fractures are another possible injury. A baby’s skull is naturally flexible so that it can squeeze through the birth canal. However, doctors may apply too much pressure with instruments like forceps or a vacuum extractor. This can cause fractures, as well as damage to the brain or nerves.

Bleeding, including hematomas and hemorrhages

Excessive pressure during delivery from forceps, a vacuum extractor, or other forces can also cause bleeding injuries. Such injuries include hematomas (localized blood clots) and hemorrhaging (ongoing internal bleeding). While many of these injuries heal without treatment, others can turn serious.

A few examples of such injuries include:

• Subgaleal hemorrhage. This refers to bleeding that’s under the scalp, but above the membrane covering the skull. Because the blood is not confined to one area, it can spread. This can cause a lot of blood loss and even shock. In some cases, the baby may even require a blood transfusion.
• Subdural hemorrhage. This refers to bleeding between the outer and the inner layers of the membrane that covers the brain. This type of bleeding can increase pressure on the brain surface. As a result, the baby may develop problems such as seizures.
• Epidural hematoma. This refers to bleeding between the skull and the outer layer of tissue covering the brain. Skull fractures may cause this type of bleeding. A newborn with an epidural hematoma may suffer from apnea or seizures.

Other birth injuries

There are many other types of birth injuries, such as lacerations, untreated jaundice, infections, and more. In the worst case scenario, birth injuries may even result in the infant’s death. The mother may also suffer injuries.

As soon as you suspect a birth injury, you should contact an experienced personal injury lawyer. If a medical provider’s error caused the injury, you may be able to seek compensation in a lawsuit. Your lawyer will be able to investigate further and identify next steps.

Possible signs of a birth injury

The signs of birth injuries vary widely, depending on the type of injury. Some symptoms will become apparent immediately after birth. Others will take years to present.

While every case is different, below are some common signs that a child may have suffered a birth injury. However, these signs may also be the result of other conditions unrelated to medical malpractice. It’s important to make sure any symptoms are properly evaluated by a doctor. Then, if you suspect a medical mistake, you should contact a birth injury lawyer as soon as possible.

Just after birth and in early infancy

Just after birth and in early infancy, the following may be signs of a possible birth injury:

• Pale skin color
• Need for resuscitation
• Breathing issues, such as rapid or slow breathing
• Low heart rate
• Muscle weakness / floppiness
• Muscle stiffness
• Slow suckling or other feeding difficulties
• Seizures
• Favoring one side of the body
• Reflex problems
• Sluggishness or lethargy
• Nonresponsive to loud noises or bright lights
• Excessive drooling
• Bruising, swelling, or abrasions

Admission to the NICU or need for a CT scan, MRI, or tests after birth may also indicate possible injuries.

Later signs of birth injuries

Some birth injuries don’t become apparent until much later. In fact, parents often don’t notice any problems until the child misses developmental milestones or their pediatrician indicates that the child is demonstrating physical and intellectual deficits.

Below are some possible signs of injury that may appear later in a child’s life. Many of these symptoms may indicate damage to the brain or nervous system.

• Learning disabilities
• Problems sitting, standing, crawling, walking, running, or climbing stairs
• Problems with motor skills, such as holding items, dressing themselves, and other age-appropriate coordination
• Vision problems
• Speech issues (impairments or lack of speech)
• Hearing difficulties
• Inability to control bodily movements (ataxia)
• Rigidity of muscles
• Eating or drinking difficulties
• Seizures
• Tremors

What to do if you suspect birth injury medical malpractice

If you suspect your child has suffered a birth injury, you should take the steps below as soon as possible. If you’re able to pursue a lawsuit, these steps will help ensure that you’re able to build the strongest case possible.

• Talk to your doctors. If something doesn’t seem right, you have the right to ask your medical team questions. This can be a stressful time, but it’s important to remain calm during any interactions. The goal of these conversations is to learn as much as possible about what happened. You should not make any accusations or threaten to sue. Doing so may cause a medical provider to become defensive. If a medical provider fears a lawsuit, they may make it more difficult for you to get information. They may even try to cover up evidence.
• Document everything. Write down as much as you can remember about the mother and baby’s medical care. Include details about the prenatal care, as well as what happened before, during, and after delivery. Sometimes seemingly unimportant information can have a big impact on your case, so it’s best to be as thorough as possible. It may also be helpful to document any interactions with medical providers. Take detailed notes and record the names of doctors, nurses, and others involved in the care of your child. This information will make it easier for your lawyer to investigate further.
• Request medical records. Medical records will be a key piece of evidence in any birth injury claim. You should request them for both the baby and the mother. By law, medical providers must provide these to patients upon request. They may only charge a reasonable fee for copying and postage. The sooner you request your records, the better. Over time, medical records may be lost, altered, or even destroyed. This is especially true if a medical provider fears a lawsuit. If you decide to pursue a lawsuit, your attorney will also request records on your behalf. However, they may not do so right away, as it may disrupt the doctor-patient relationship. In some cases, the lawyer may decide to see how the child’s condition responds to treatment before requesting records, while being mindful of the statute of limitations.
• Contact a birth injury lawyer. Getting the help of an experienced lawyer is a critical step if you suspect a birth injury. Building a strong case involves a deep knowledge of relevant law and legal procedures. Without the right information, it’s easy to make mistakes that can harm your ability to recover compensation.

Your lawyer will also be able to engage the appropriate medical experts and guide you through the entire process. For more information about finding a birth injury attorney, see Chapter 2: Finding an Attorney for a New York Birth Injury Lawsuit.

Finding an Attorney for a New York Birth Injury Lawsuit

If you suspect your child suffered a birth injury, it’s important to bring your child’s medical records to a lawyer for a consultation as soon as possible. Waiting too long can jeopardize your ability to build a strong case and recover fair compensation.

Once you hire a lawyer, they’ll manage the entire legal process for you. That means you can focus on your child, with the peace of mind that someone experienced and qualified is fighting on behalf of you and your child. In particular, your lawyer will:

• Conduct thorough investigations to determine what happened
• Explain your rights and legal options
• Identify the appropriate defendants
• Gather evidence
• Identify and interview witnesses
• Engage medical and financial experts to support your case
• Identify and calculate damages
• Handle communications with all third parties
• Represent you at all meetings and hearings
• Ensure you meet all legal requirements and deadlines

Costs of pursuing a birth injury lawsuit in New York

It’s common for personal injury victims to worry about how much it will cost to pursue a lawsuit. Fortunately, it’s standard for birth injury lawyers to offer free case evaluations. So there’s little downside to at least meeting with a lawyer to discuss your case.

Birth injury lawyers also generally work on a “contingency basis.” This means that if you hire a lawyer, you usually won’t have to pay retainer or hourly rates upfront. Instead, your attorney will only get paid if they win money for you in a settlement or trial verdict.

New York law limits the amount attorneys may charge in a contingency arrangement for medical malpractice cases, including birth injury lawsuits. These limits are as follows:

• 30% of the first $250,000;
• 25% of the next $250,000;
• 20% of the next $500,000;
• 15% of the next $250,000;
• 10% of any amount over $1.25 million.

For cases based on ordinary negligence rather than medical malpractice, the contingency fee is generally one-third of the amount recovered in a settlement or at trial. Ordinary negligence refers to the failure to act as a reasonable person would have under the circumstances.

Lawsuits involve other costs as well. Examples include fees for records, experts, and depositions. Highly qualified medical experts can be particularly expensive. Since they must spend time away from their work to assist on a case, they can charge as much as $1,000 per hour, or even more.

Birth injury lawyers generally advance all litigation-related costs, as they can quickly add up and most clients are unable to handle such expenses. If your lawyer wins money for you, they’ll get reimbursement for these costs as well.

If you have questions about how a lawyer will handle fees and expenses, you should feel free to ask them. When hiring a lawyer, your financial arrangement with them should also be outlined in your engagement agreement.

Choosing a birth injury attorney

The attorney you choose for your case is an important decision. A lawyer’s experience, skills, and knowledge can greatly influence the outcome of a lawsuit. So before hiring a lawyer, you should carefully evaluate whether they’re right for your case.

Specifically, you should try to learn about their:

• Qualifications
• Experience with birth injury cases
• Connections with quality experts

You should try to get a sense of their resources as well. Birth injury lawsuits can take a lot of time and money to resolve. Your law firm will generally advance lawsuit expenses and will only get paid attorneys’ fees if they recover money for you. This means your lawyer should have enough financial and personnel resources to build a strong case and go through an entire trial, if needed.

Finally, you should choose an attorney who suits you on a personal level. Dealing with a birth injury is stressful enough, and you’ll be working closely with your attorney during this emotional time. A lawyer who’s compassionate, attentive, and responsive will make the process a lot easier. For more information on how to choose a lawyer for your case, click here.

What to expect at an initial consultation with a birth injury lawyer

The first step towards hiring a lawyer is getting a free initial consultation. This meeting is an opportunity for the lawyer to learn more about your case and determine if they can help you. You should bring any evidence of your claim that you already have with you to the consultation.

If the attorney believes you may have a claim, they’ll conduct further investigations. They’ll also engage a medical expert to review your case. If both the attorney and the expert believe you have a viable claim, the next step is officially pursuing a lawsuit.

During the initial consultation, the lawyer will likely ask you a lot of questions. You should also feel free to ask questions. As noted in the section above, you should try to get a feeling for the attorney’s qualifications, experience, and resources. Preparing questions ahead of time can help ensure you get all the information you need to make a decision.

Keep in mind that initial investigations may take longer than you expect. To make sure you don’t miss legal deadlines and jeopardize your case, you should get a consultation as soon as possible.

Consult a New York birth injury lawyer about your case today

At Rosenblum Law, we understand just how heartbreaking and stressful a birth injury can be. If you believe your child was a victim of a medical error, we’re standing by ready to evaluate your case.

We’ll review the available evidence and help you identify all your legal options. If we can take on your case, we’ll also fight to recover maximum compensation and secure justice for your child. We’ll handle the entire legal process, so you can focus on your child and family.

If we’re not the best fit for you, we offer help finding the right law firm to handle your case as well. We have a large network of pre-screened law firms with experience handling birth injury claims.

To get started with a free consultation, call us today at 888-235-9021 or contact us online at www.rosenblumlaw.com/contact. We’re passionate about getting victims of birth injury medical malpractice the compensation that’s rightfully theirs. Since we work on a contingency basis, you also won’t have to pay any fees unless we win money for you.

Pursuing a Birth Injury Lawsuit in New York

If you’re thinking about pursuing a birth injury claim, it’s helpful to become familiar with the basics of building a case. This will help you better understand what to expect and reduce unnecessary stress. It will also help you avoid common mistakes that can harm your case.

Below is an overview of important general information about pursuing a birth injury lawsuit in New York. If you have questions about your specific case, you should always discuss them directly with a qualified lawyer.

Who can file a New York birth injury lawsuit

Under New York’s Civil Practice Law & Rules (“CPLR”) Sec. 1201, minors can’t file lawsuits themselves. So for birth injuries, the parents or legal guardian of the injured child usually have to file on the child’s behalf.

Under CPLR Sec.1206, any money won in a birth injury lawsuit would be for the child’s benefit. Such funds are often deposited into a special account. Generally, the child won’t have access to the money until they reach 18.

If the parents incurred costs (such as medical bills), they may be able to get compensation for those expenses. If the mother was injured herself, she would be able to seek compensation for her own losses as well.

Statute of limitations for New York birth injury lawsuits

The “statute of limitations” refers to the legal deadline for filing a claim. Once that deadline passes, you’ll usually no longer be able to pursue a lawsuit.

Under CPLR Sec. 214-A, the statute of limitations in New York for a general medical malpractice claim is generally 2.5 years from:

• the date of the action, omission, or failure to act that injured the victim; or
• the date of the last treatment where there was continuous treatment for the same illness, injury or condition (called the “continuous treatment” doctrine).

This deadline would generally apply for any medical malpractice claims based on injuries to the mother.

For birth injuries to an infant, New York has special rules extending the above deadline. Under CPLR Sec. 208, the deadline for birth injuries may be extended to 10 years if a parent is pursuing a claim on a child’s behalf. This means that parents must generally pursue a claim on behalf of the child before the child turns 10 years old. A child generally has until age 21 to pursue a claim on their own behalf.

Note that additional or different deadlines may apply to your specific case. For example:

• Under New York’s General Municipal Law Sec. 50-E, suing a government entity generally requires filing a notice of claim within 90 days after the cause of action arises.
• Under CPLR Sec. 214, ordinary negligence claims (not medical malpractice) must generally be filed within three years after the cause of action arises.
• Under New York’s Estates, Powers, & Trusts Law § 5-4.1, wrongful death claims must generally be filed within two years from death.

To confirm which specific deadlines apply to your case, you should consult a lawyer as soon as possible. If you miss a deadline, you may not be able to recover compensation at all.

For example, in Sarjoo v. Health & Hosps. Corp., a claim was filed on behalf of an infant plaintiff for injuries allegedly suffered during birth. However, the notice of claim under New York’s General Municipal Law Sec. 50-E and the complaint were not filed until about 5 years after birth.

The defendant filed a motion to dismiss the case because the plaintiff missed the notice of claim deadline. The lower court denied the motion, but this decision was reversed on appeal.

In reversing the decision, the appeals court noted that the “continuous treatment” doctrine was the only way to extend the deadline. However, they found that the doctrine didn’t apply in this case because there were gaps in treatment. As a result, the plaintiff’s claim was thrown out.

Even if the deadlines in your case are years away, it’s better to get started as soon as you suspect a birth injury. The longer you wait, the more difficult it will be to gather the evidence necessary to build a strong case and recover maximum compensation.

Potential defendants in a birth injury lawsuit

One of the most important steps in building a case is identifying the legally responsible parties. In most birth injury lawsuits, the defendants will be the medical providers involved in delivering your baby. Potential defendants include:

• Obstetricians
• Family doctors
• Anesthesiologists
• Neonatologists
• Nurses
• Other medical staff
• Hospitals/clinics

Midwives may also be defendants in birth injury lawsuits. In New York, midwives are trained, licensed professionals who assist in delivering babies. Some, but not all, are registered nurses. Either way, midwives are only supposed to handle normal pregnancies.

If there are complications or the pregnancy is high risk, the midwife should transfer care to an obstetrician. Under New York’s Education Law Sec. 6951, midwives must have “collaborative relationships” with a licensed obstetrician or a hospital that provides obstetrics.

If a midwife’s failure to act reasonably under the circumstances causes injuries, they may be legally liable. However, New York law doesn’t require midwives to have medical malpractice insurance. If a midwife doesn’t have insurance, they may not be the best source of compensation. In those cases, it may be better to pursue the claim against another party involved in the mother and baby’s care.

The defendants in your case will depend on who was involved in the care and injury of your child. Typically, at least the hospital or other institution where the delivery occurred will be named as a defendant. If possible, you’ll name everyone involved in the care of the mother and baby. This helps ensure that there’s adequate insurance coverage for your damages. Your attorney will investigate to determine the appropriate defendants for your case.

Elements of a birth injury claim

To win a birth injury lawsuit, you’ll have to prove the four parts of a personal injury legal claim. These parts are called the “elements” of the claim. Your attorney will investigate, gather evidence, and construct legal arguments in support of each element.

The four elements of a birth injury claim are as follows:

• Duty. The first step is proving that the defendant owed a duty to the injured party. In a birth injury case, this will require proving a medical provider-patient relationship. You’ll also have to establish the proper standard of care under the circumstances. In any medical provider-patient relationship, the medical provider has the duty to act with the same skill and care ordinarily used by well-qualified professionals under similar circumstances. In other words, the medical profession’s own customs and practices sets the standard of care. The legal obligation to meet this standard is called the “duty of care.” Since the medical community sets the standard of care, you’ll need medical experts to testify about the appropriate standard under the circumstances. For more information about the role of experts, see Common types of evidence in birth injury lawsuits — Expert testimony below.
• Breach. The next step is proving that the defendant breached their duty of care. This means that you have to show that the defendant failed to provide appropriate care to the mother and/or baby under the circumstances. Again, medical expert testimony (as well as other evidence, such as medical records) is usually necessary to establish this element.
• Causation. A medical mistake alone still isn’t enough to win a lawsuit. You’ll also have to show that the defendant’s breach of duty caused the child’s birth injury. In other words, you have to prove that if it weren’t for the defendant’s actions (or failure to act), the child wouldn’t have been injured in the same way. In many birth injury cases, causation is a hotly contested issue. Birth injuries can have many causes. So it’s common for defendants and their insurers to argue that the defendant’s conduct did not cause the child’s injuries. This is yet another reason why it’s so important to get the help of a lawyer and medical experts to thoroughly investigate and collect strong evidence in support of your claim.
• Damages. Lastly, you’ll have to show evidence of the losses resulting from the injuries. Damages can be economic in nature (such as medical bills), or non-economic (such as pain and suffering). For more information about types of damages, see Types of damages in a birth injury lawsuit below.

If your lawsuit goes all the way to trial, the judge or jury will decide whether you sufficiently proved each of these four elements. If you don’t meet certain legal requirements, the judge may dismiss your case before a verdict. These elements and the strength of the evidence supporting each will also impact settlement negotiations.

Common types of evidence in birth injury lawsuits

Building a birth injury lawsuit requires a wide range of evidence to prove each of the elements described above. Below are a few types of common evidence in birth injury lawsuits. As soon as you suspect a birth injury, you should try to start collecting evidence. Your lawyer will also help gather the appropriate evidence to support your claim.

Medical records (for both mother and child)

Medical records are crucial for any birth injury claim. Medical records often include documents such as:

• Evaluations
• Doctors’ notes
• Test results
• Diagnoses
• Treatment plans
• Prescriptions

You’ll need the medical records of both the mother and the child. These records will provide important information about the mother and baby’s health care, which can help establish what happened and who was involved.

Patients have a right to access their medical records. Medical providers may only charge a reasonable fee for copying and postage. They may not deny your request, even if you have unpaid bills. So as soon as you suspect a birth injury, you should request them. Waiting too long may increase the chances that the records are lost, altered, or even destroyed. This is especially true if the medical provider fears a lawsuit.

If you hire a lawyer, they can help get medical records as well. However, they may not request medical records on your behalf right away. This is because the child’s care should always be the top priority.

If a medical institution gets a medical authorization from a law firm, they may be deterred from continuing care or doctors may become reluctant to get involved in the child’s care. To avoid disturbing the doctor-patient relationship, a lawyer may decide to wait to see how the disability responds to treatment, while being mindful of the statute of limitations.

Depositions and witness testimony

A “witness” in a lawsuit is someone who can testify under oath about certain aspects of your case. If a case goes to trial, both sides of the lawsuit will call witnesses to testify in support of their arguments.

Witnesses are an important part of preparing a case as well. Before trial, both sides of a lawsuit will take depositions of witnesses. “Depositions” are sworn, out-of-court statements in the form of question-and-answer sessions with an attorney. Depositions can help flesh out what happened and how. They can also help your lawyers understand the medical provider’s version of events and their defenses.

Typically, there will be depositions of OB-GYN, nurses, and anyone else involved in the care and delivery of the mother and baby. The defense attorneys will also likely depose the parents. This can be an intimidating experience, but your lawyer should work with you to prepare. Your attorney will also be present during the deposition.

Expert testimony

Experts are individuals with specialized knowledge in a specific area. The opinion of a medical expert is generally required to pursue a birth injury case. This opinion should help establish that the medical provider violated the appropriate standard of care, and that such conduct caused harm to the infant and/or mother.

The medical expert will review all evidence in the case, including medical records and depositions of the medical providers involved. They’ll then provide an opinion. They’ll also provide feedback throughout the case and, if needed, testify at trial.

You may also need other types of experts as well. For example, financial experts are often needed to calculate reasonable damages that account for all types of past and future damages.

Your attorney is responsible for identifying and engaging the right experts for your case. So when choosing an attorney, you should look for one who can secure qualified, respected experts. The defense will also engage experts, and the outcome of some cases will depend on which expert is more believable. This means it’s important for your experts to have strong credentials, such as:

• Having a clinical practice
• Being on a medical school’s faculty
• Being involved in medical research
• Authoring peer-reviewed medical publications

Conflicts between expert opinions must often be resolved in court. In Youssef v. Guirguis, for example, a mother filed a lawsuit alleging injuries to herself and to her newborn. The defendant hospital filed a motion with the court to resolve the case in their favor without a full trial (called “summary judgment”). The hospital argued that 1) they didn’t deviate from accepted medical practices, and 2) in any case, any alleged departure didn’t cause the baby’s injuries.

The defendant submitted expert medical opinions in support of their motion. However, the plaintiff also submitted expert testimony countering the defendant’s experts. The court found that the conflicting expert opinion must be resolved in court. As a result, it denied the defendant’s motion for summary judgment.

Other evidence in a birth injury case

Aside from medical records, witnesses, and expert opinions, you’ll likely need many other types of evidence to build the strongest case possible. Examples include:

• Photos/videos
• Background information about the defendants, such as education, experience, and qualifications
• The medical institution’s internal records and policies
• Any complaints filed against the defendants
• Documentation of expenses (such as medical bills and other out-of-pocket expenses)
• Documentation of mental health treatment

Your attorney will work with you to investigate all aspects of your case and identify any relevant evidence.

Types of damages in a birth injury case

Like other personal injury cases, there are generally three possible types of damages in a birth injury lawsuit:

• Economic damages. Economic damages are monetary losses incurred in connection with the victim’s injuries. Examples include medical bills and other out-of-pocket expenses for things like prescriptions, therapy, home modifications, medical equipment, and travel to appointments.
• Non-economic damages. Non-economic damages are compensation for non-monetary losses. Examples include pain and suffering, loss of enjoyment of life, impairments, and disability. These are more subjective losses, and therefore vary wildly. Generally, the judge or jury in a case will base such damages on the nature of the injuries and the impact they have on the victim’s life.
• Punitive damages. Punitive damages are not a form of compensation for the victim’s losses. Rather, courts sometimes award them as a way to punish or deter especially bad behavior. They’re usually only awarded in extreme cases involving intentional, extremely reckless, or fraudulent behavior.

Under CPLR Sec.1206, any money won in a lawsuit for a birth injury would be for the child’s benefit. Such funds are usually deposited into a special account. Generally, the child won’t have access to the money until they reach 18.

If the parents incurred costs (such as medical bills), they may be able to get compensation for those expenses. If the mother was injured, she would be able to seek compensation for her own losses as well.

Every birth injury lawsuit is different, so the types and amounts of damage will vary from case to case. Your attorney will work with medical and financial experts to determine an appropriate amount to seek based on what the child’s life will look like socially, emotionally, and financially. They will then build a case to show what the child needs and why so that a jury can visualize what life would be like for them.

Sometimes, it may be beneficial to see how such injuries develop over time while being mindful of the statute of limitations. A young child of 2-3 years old may not exhibit the effects of the injury. However, by grade school, it may be more apparent how the injury has developed and how it has impacted the child’s life.

If the case is decided in court, the judge or jury will determine the damages. In settlement negotiations, the attorneys will try to negotiate a fair settlement amount based on the circumstances. Settlement for damages recovered on behalf of a minor or deceased person must be approved by a judge.

Note that New York has a Medical Indemnity Fund (“MIF”) for birth injury victims. A person can enroll in the MIF if they are deemed to have sustained a “birth-related neurological injury” in a court-approved settlement or lawsuit judgment. The MIF will pay for the person’s health care needs related to the injury, such as medical treatment, nursing care, medications, equipment, and more. Your lawyer can help with the enrollment process.

A defendant’s damages may also be reduced in a post-trial proceeding if certain care costs are covered by insurance, Medicaid, or Individual Educational Programs in a public school system.

The impact of the comparative negligence rule on birth injury cases

New York follows a “comparative negligence” rule in personal injury lawsuits. This means that multiple parties may be found at fault, including the plaintiff. In a trial, the judge or jury is responsible for assigning fault. The damages are then allocated accordingly.

This is a common defense in lawsuits, because it can reduce the defendant’s liability by the percentage of fault of the other parties. For example, if a doctor made a mistake that caused an injury and the mother failed to follow medical orders that contributed to injury, both the doctor and mother could be legally responsible.

If the jury finds the doctor 90% at fault and the mother 10% at fault, the doctor would only be liable for 90% of the damages. So if the jury found $1,000,000 in total damages, the doctor would only have to pay $900,000.

The comparative negligence rule may also affect settlement negotiations, depending on the strength of available evidence.

The legal process for birth injury lawsuits

Deciding to pursue a lawsuit is a big decision. Building a strong case is complicated, and it can take a lot of time to resolve. The process can also be intimidating to face. However, part of your attorney’s job is to guide you every step of the way. They should be able to answer your questions about what to expect and help you make decisions at every stage.

Your lawsuit will officially begin when your attorney files a Summons and Complaint. The defendant will then have the chance to file a response, called the Answer. After the defendant files their Answer, the case will generally go through a period of motions, hearings, and discovery. “Discovery” refers to the exchange of evidence and information between both sides of the lawsuit, such as medical records and information about past litigation.

You can learn more about what to expect during the litigation process here. Throughout the process, both sides will also usually try to reach a settlement agreement outside of court. Still, a birth injury lawsuit can take years to resolve — often 4-6 years. However, as described below, some cases settle much sooner.

Birth injury lawsuit settlements in New York

Many lawsuits never reach a trial verdict. Instead, the parties resolve the case outside of court. This is called reaching a “settlement agreement.” Settlements are faster, less costly, and provide more certainty than litigating claims in court.

Despite the benefits, medical malpractice insurance companies often resist settlements. This is because damages can be large in a birth injury case, and they uniformly want to discourage claims. Even so, strong cases are likely to settle.

If both parties are interested in settling, negotiations generally start soon after a lawsuit begins. The parties’ attorneys may negotiate directly, but mediation is also possible. “Mediation” is a process led by a neutral third party called a “mediator.” The mediator helps the parties reach a mutually acceptable agreement.

Reaching a settlement that satisfies both sides is difficult. The goal of the defendants and their insurers is to pay as little as possible in damages. As a result, they’ll often offer much less than a claim is really worth. This is especially true early in the process. So it can take many counter offers and extensive negotiations before the parties can reach a fair settlement, if one is reached at all.

The parties can reach a settlement agreement any time before a trial verdict. In birth injury lawsuits, under CPLR Sec. 1207, the parent or legal guardian filing on behalf of the child must file a motion with the court to approve the settlement. The physicians involved may also have to give consent to a settlement, even if their insurer is handling the case. Most of the birth injury cases are confidential when settled. If the parties can’t reach an agreement, the case will proceed in court.

It’s important to never accept an offer for compensation from the defendant or their insurer without consulting an attorney first. Once you agree to a settlement, you give up the right to pursue your claim in court. This is true even if you find out later that the amount you agreed to is much less than the true value of your claim.

Frequently Asked Questions

Below are answers to some common questions about birth injury claims in New York. If you suspect your child suffered a birth injury, you should get a free consultation with an experienced birth injury lawyer as soon as possible. A qualified lawyer will be able to answer your specific questions and help you identify next steps.