Birth injury is a broad term encompassing injuries to a baby while in utero, during labor, or during delivery that may be caused by inadequate or inappropriate medical care. A birth defect is a congenital abnormality often inherited or caused by environmental exposure during the development of the baby. While the circumstances of a birth injury should be investigated by an attorney, the failure to diagnose a birth defect, either prior to birth or after birth, may also present issues warranting an investigation by an attorney.

After your child receives the necessary medical care, you should contact a law firm experienced in handling birth injuries. You will then meet with a birth injury lawyer who will assist you. Your lawyer will begin by obtaining all relevant medical records and will contact expert medical providers to review the care that was provided to you and/or your child. In New York, a medical malpractice lawsuit cannot proceed without the support of a medical expert.

Most injuries occur when a doctor, nurse, or other medical provider fails to adequately assess or respond to a condition or complication during a woman’s pregnancy or delivery. The key question is whether the medical provider failed to give you or your baby adequate medical care or medication advice during pregnancy or delivery. If you believe you or your child may have been a victim of a medical error, you should contact a birth injury lawyer right away.

Some of the most common errors that occur during childbirth include: failing to correctly read or interpret fetal monitoring strips, failing to timely perform a c-section,  failing to appropriately monitor uterine stimulating drugs like Pitocin, improper prenatal or postnatal care, undiagnosed pre-eclampsia or gestational diabetes, misdiagnosed maternal or fetal distress, inappropriate use or monitoring of medications, or improper use of birth-assisting tools. In order to determine exactly what mistakes may have occurred, a birth injury attorney will need to thoroughly review the relevant medical records and consult with medical experts in the area of maternal fetal medicine.

Potential injuries include brain damage due to a lack of oxygen sometimes called hypoxic ischemic injury (HIE), cerebral palsy, shoulder dystocia, brachial plexus injuries, erb’s palsy, klumpke’s palsy, nerve trauma, spinal cord trauma, facial paralysis, body paralysis, uterine rupture, or post-delivery infections.

It is very common for a woman to build a strong relationship with her OB-GYN and other medical professionals throughout her pregnancy. However, when a doctor makes a serious mistake, you and your family should not have to suffer because of his/her negligence. It is important to consider what happened to you and your child, not only for you and your child but for the safety of future patients. A birth injury can result in a lifetime of medical expenses and other needs. A legal case is the way to secure your child’s future and protect other children from poor care.

In New York, all physicians must carry medical malpractice insurance which provides coverage for instances of medical malpractice up to a certain amount. If damages exceed the medical malpractice coverage, a defendant may be personally liable for the amount in excess.

You should collect everything you have been given either from the hospital or medical staff you worked with.  Even if the paperwork does not involve the medical provider responsible for the harm caused, the paperwork may be important to show that your pregnancy and the baby’s health was progressing normally. Additionally, you should write down all of the names of your medical providers and any medical personnel you may have spoken with, as well as any important details you remember about those interactions so you don’t forget. Finally, you have the right to request your medical records and those of your baby. If you have trouble obtaining those records, a birth injury attorney will assist in obtaining these records.

Legal cases go through several distinct phases.

First there is the pre-suit phase, where an attorney will evaluate your case, collect information, request medical records, and review your records with medical experts.

Next, if your case can be supported both medically and legally, papers may be filed in court, signifying the official start of your case in court. At this point, your attorney and the attorneys for each of the defendants will begin making requests to exchange information and eventually conduct depositions, also called “examinations before trial” of each party to the lawsuit and other relevant witnesses. At a deposition, questions are asked by the attorneys and a stenographer types everything that is said.

Once all the necessary information is exchanged a case may be ready for trial and a trial date will be scheduled. During this process, discussions may occur between attorneys regarding whether the case can be resolved before a trial.

Ultimately, this resolution depends on what kind of injury your child has, the kind of documentation supporting your case, and the opinions of medical experts regarding the specific events that occurred in the case.

A jury will consider evidence such as medical records, and testimony of witnesses and expert doctors, who will testify whether your physician’s actions were reasonable or fell below the accepted standard of care. Once the jury considers the evidence and all testimony, they will then consider whether the elements of a medical malpractice claim have been met, and whether the plaintiff mother and baby should prevail.

If a living child suffers a birth injury because of the negligence of a doctor or hospital, the damages awarded can include the following:

• past and future medical expenses
• costs for necessary home modifications
• the physical pain and suffering of the child
• the emotional distress of the child
• future rehabilitation treatments or therapies
• lifelong supportive care
• costs for equipment needed to care for the child

A parent can also receive compensation for lost wages should the parent not be able to work any longer in order to provide specialized care to the child. Additionally, a mother may recover damages for emotional distress, even in the absence of an independent injury, if medical malpractice results in miscarriage or stillbirth.

Lawsuits involving personal injuries are typically handled on a contingency fee basis, meaning your lawyer will not get paid unless you receive a settlement before trial or a verdict in your favor at trial. The fees a lawyer is paid in a successful medical malpractice lawsuit in New York are set by court rules.

The time within which a lawsuit must be commenced is called the statute of limitations. Once the statute of limitations has run out, the injured person will be legally barred from filing a lawsuit based on those injuries. Often, the degree of a child’s injuries may not be immediately apparent to the doctors or family. It may be years until the parents realize the full extent of the harm done by an injury that occurred during childbirth. In New York, if the victim is under the age of 18, he or she has 10 years from the date of the injury to file a lawsuit. Parents can always choose to act on their child’s behalf sooner than ten years after the child’s birth and should be in contact with a birth injury attorney as soon as a birth injury is suspected to ensure no deadlines are missed.

Proceeds from a case involving a child under the age of 18 must be approved by a judge through an Infant Compromise proceeding. The purpose of the judge’s review is to ensure the funds are protected for the child. Funds can be handled in a variety of ways. A family may choose to structure the funds with the assistance of an insurance company who would then provide periodic payments to the child upon reaching a certain age. An annuity structured with an insurance company may allow for some additional investment yield from the funds over time. This is one way to provide for the long-term needs of a disabled child and his or her anticipated future needs. A special-needs trust or qualified settlement trust are also alternative options, as well as upfront cash payments to provide for any immediate needs. An attorney will help you understand your options as well as determine what is the best option for you and your family.