Birth injuries can occur from natural processes or medical errors during pregnancy, labor, delivery, or soon after birth. If your loved one was involved in a birth injury where the doctor failed to provide the appropriate care, you can pursue a lawsuit against the clinicians and hospitals involved. Birth injury lawsuits are often complicated. In birth injury lawsuits New York, you will need the help of an attorney to prove that the physician did not follow the generally accepted practices set by the medical community, which a professional with similar training and experience would follow under the circumstances.

In birth injury cases, both parties engage medical experts to establish the expected standard of care. These experts give testimonies and opinions on whether the professional involved acted in the expected standard of care under the circumstances.  Additionally, the medical expert must prove that their opinions are widely accepted in the medical profession through supporting medical cases, formal studies, and research.

Birth injuries may occur from medical errors such as:

• Failure to provide the appropriate prenatal care
• Failure to monitor the baby’s development
• Failure to diagnose and treat the baby’s/mother’s medical conditions
• Improper prescription and administration of medications that harm the baby before and after delivery
• Failure to identify and address pregnancy and delivery complications
• Use of improper delivery techniques
• Improper handling of a newborn in the neonatal intensive care unit

It is important to remember that even in the presence of a birth injury, the injured party has to prove that the medical professional failed to act according to the industry standards expected from professionals of similar training and experience. Experts of higher qualifications are held to higher standards by the medical community.

Types of Birth Injury Lawsuits New York

There are three types of birth injuries: brain injuries, fractures, and nerve injuries. Birth injuries can be mild, moderate, or severe. Some can heal, while others have long-term effects on the child’s life. Here are some of the most common birth injuries:

Hypoxic Ischemic Encephalopathy (HIE)- asphyxia- occurs when the baby’s brain does not get enough oxygen before or during birth. The condition affects the baby’s brain and nervous system. It can occur from the restriction of blood flow to the fetus from umbilical cord prolapse, placental abruption, excessive uterine contractions, uterine rupture, high maternal blood pressure, trauma from forceps or a vacuum, or placenta previa.

Most babies hardly survive severe HIE, but those with mild oxygen deprivation do not suffer significant effects. Babies with moderate and severe HIE may suffer long-term neurological problems such as developmental delay, cognitive impairment, cerebral palsy, or epilepsy.

Brachial palsy/Erb’s palsy is a form of arm nerve injury resulting from the compression, overstretching, or tearing of the baby’s nerves from excessive force applied during delivery. The affected child experiences arm or shoulder muscle weakness and may recover the arm’s functioning without treatment or through treatment and therapy.

Bone and skull fractures – during the delivery, the baby may suffer spontaneous skull fractures. The injury can also occur from the use of delivery instruments. Depending on the type of fracture, the baby may suffer from bleeding or pressure on the brain.

Bleeding– different types of injuries can lead to bleeding. For instance, brain injury can cause blood to accumulate in the skull, which may require surgery. Bleeding can also occur from injuries resulting from various delivery equipment.

Other birth injuries that may occur from medical negligence include lacerations, untreated jaundice, and infections.

Some injuries may be noted immediately, while others appear later. It is best to contact a birth injury attorney as soon as you suspect an injury. An attorney will help you investigate if there exists an injury and advise you on the next steps of action.

Filing birth injury lawsuits New York

Birth injury cases are filed by parents and guardians of the injured child because minors cannot file lawsuits under the New York state legislation. The money awarded as compensation for the damages is meant for the child’s benefit and is deposited in a special account. The injured person can access the funds when they reach 18. Compensation for economic losses incurred through the treatment of the infant and the mother is paid to the parents.

Statute of limitations

The statute of limitations for medical malpractice claims for injured mothers during delivery in New York is 2.5 years. The period starts from the date the action or omission that injured the victim occurred or from the date of the last treatment in a case of continuous treatment for the same injury.

The doctrine of continuous treatment in New York legislation states that the cause of action for medical malpractice begins from the last date of continuous treatment. It is important to note that courts may not extend the statute of limitations for cases with gaps in treatment.

The statute of limitations for claims for injuries sustained by an infant at birth, where a parent is pursuing the claim on behalf of a child, has a special extension period of ten years. The injured child can, however, pursue a claim between 18 and 21 years.

There are exceptions to this statute:

• Lawsuits against government entities require the claimant to file a notice of claim within 90 days following the cause of action.
• The statute of limitations for claims of non-medical malpractice negligence is three years.
• Claims for wrongful death must be filed two years after the infant’s death

Our attorneys will advise you on your case’s issues, including the deadlines for filing your claim. Reach out to us as soon as you suspect an issue of medical malpractice to avoid missing the deadline and allow proper evidence collection.

Elements of a Birth Injury Claim

There are four elements to a birth injury claim that a plaintiff must prove through evidence and legal arguments to win a lawsuit. If the case goes to trial, the judge and the jury will decide if the plaintiff has sufficiently proved all four elements. The evidence provided in support of these elements also affects the negotiation process.

These elements include:

Duty of care – the injured person must prove that the defendant owed them a duty of care through a patient-medical-provider relationship where the medical provider has a duty to act in the same standard of care expected from professionals with similar skills and experience. The injured person must also establish the proper standard of care under the circumstances. The plaintiff must have a medical expert in the field testifying the profession’s standard of care under similar circumstances.

Breach of duty– the plaintiff must prove that there was a breach of duty of care or negligence. To win a birth injury lawsuit, the plaintiff must prove that the defendant failed to provide the proper standards of care set by the profession. Medical records may be used as evidence alongside expert testimony.

Causation – the plaintiff must also establish that the defendant’s breach of duty caused harm to the infant or the mother, and if it weren’t for the breach of duty, such harm would not have occurred. And if the defendant had acted within the expected standards of care, the injury wouldn’t have occurred. To prove causation, the plaintiff must have researched the issue extensively and gathered strong evidence to support their claim.

Damages- finally, the plaintiff must show evidence of economic and non-economic losses that resulted from the injury. In New York, there is no limit on the monetary amount that may be awarded to the injured person in a medical malpractice case.

A court may also award punitive damages in cases of intentional, extremely reckless, or fraudulent behavior. Punitive damages are determined by the court and are meant to punish the defendant and deter such behavior in the future.

The amounts of damages awarded may differ from one case to another. It is important to note that the damages awarded may be reduced when insurance and other programs cover certain costs. Also, the principle of comparative negligence may apply if the court determines that multiple people are at fault. In such a case, the parties at fault share the damages accordingly, including the plaintiff, if they are partly to blame for the injuries.

Evidence for Birth Injury Lawsuits

Plaintiffs in a birth injury lawsuit can use a wide range of evidence, including:

• Medical records of both the mother and infant may include doctor’s notes, evaluation documents, test results, diagnoses, treatment plans, and prescriptions to provide information on what happened and the physicians involved. Remember, patients have a right to access their medical records, and the health care provider should only charge you printing and mailing fees. It is best to request the records when you suspect medical malpractice to lower the chances of loss and alteration. As you request for the results, be cautious not to interfere with the doctor-patient relationship that may affect your child’s treatment. It is advisable to seek the help of an attorney before making any move.
• Depositions and witness testimony– if a case goes to trial, the plaintiff and defendant must have witnesses to support their arguments with testimonies. Depositions are sworn out of court statements by witnesses, and they help attorneys understand the other party’s version of the story. Attorneys help their clients through a deposition.
• Expert testimony– medical experts in the specific fields provide their opinions to help establish if the medical provider acted within the appropriate standard of care and if their actions or failure to act caused the injury. Medical experts review the evidence and depositions and give their opinions throughout the case. A conflict of opinion might arise among the experts in the case, which could be resolved in court.
• Other types of evidence you may require to win a birth injury lawsuit include photographs and videos, the defendants’ background information, the hospital’s policies and internal records, other complaints against the defendant, and records of expenses incurred from the injury.

The Medical Indemnity Fund (MIF)

MIF was established in 2011 by the New York legislature to fund the healthcare costs of plaintiffs in medical malpractice cases who suffer neurological problems from birth injuries. The fund is available to persons established to have sustained neurological problems through a birth injury in a court. Once the person enrolls for the fund, it covers medical treatment, medications, equipment, and care related to the injury.

Settlement agreement

Throughout the case process, parties will try to negotiate a settlement before going to trial. Such agreements are often confidential, faster, and less costly.  The settlement is offered to the plaintiff to give up pursuing any lawsuit on the injury in the future. It is always best to consult an attorney before agreeing to a settlement. In birth injury lawsuits, settlements are made with the court’s approval; thus, the parents or guardians must file a motion for approval.