Personal Injury Attorneys

Closer to Whole: Recovering in a Birth Injury Action

Recovering in a Birth Injury Action

 

Is there any sort of medical malpractice lawsuit that’s not extremely emotionally taxing? Probably not – but birth injury lawsuits are arguably among the most traumatic type of personal injury claim. If you’re a parent seeking to recover in a birth injury action, knowing what you’re in for, and finding the right New York birth injury attorney, can make the process a bit more bearable – and much more likely to succeed.

As a preliminary matter, it’s important to distinguish between a birth injury and a birth defect. A birth injury occurs due to a complication during the labor or delivery process. A birth defect, on the other hand, typically involves harm to a baby that arose prior to birth, either due to a genetic mutation or to an event occurring during the mother’s pregnancy. In many cases, birth defects are not a result of anyone’s negligence.

How do you prove a birth injury claim? The bottom line: birth injury actions are a type of medical malpractice lawsuit, and medical malpractice lawsuit is simply a specific type of negligence claim. That means that in a birth injury action, as in any negligence case, you’ll be required to prove the four elements of negligence: (1) there existed a duty of care; (2) the doctor, hospital, or other medical professional breached that duty of care; (3) that breach of duty caused injury; and (4) damages resulted.

Thus, while birth injury claims are extremely fact-intensive, regardless of the circumstances of your particular case, you’ll first be required to prove that a doctor or other medical professional failed to provide you or your infant with adequate medical care. In order to do that, you’ll need to show that the doctor’s conduct fell below a generally accepted standard of medical care.

Establishing the requisite standard of care will typically entail retaining a qualified medical expert, who will testify not only as to the applicable standard of care, but also that, in your case, the defendant failed to meet this standard of care. An experienced birth injury lawyer in New York will help you find a qualified, effective medical expert, critical to proving your case.

That takes care of the first two negligence elements, duty and breach of duty. In getting your head around a birth injury claim, it can be easier to consider the third and fourth negligence factors, causation and damages, in reverse. It’s often quite apparent that an injury and damages occurred; the more critical issue in your birth injury lawsuit is likely to be whether those damages were the legal or “proximate” cause of those injuries. Keep in mind that, given the complex nature of birth injury claims, an investigation into causation may take anywhere from six months to a year to complete.

What are some instances in which a doctor or hospital is considered to have “caused” a birth-related injury? Some examples include where a doctor neglects to properly monitor the baby’s oxygen levels both before and after birth, resulting in brain damage or other injury, or where a doctor inappropriately decides to induce a premature delivery, causing injury to the newborn. Conditions like cerebral palsy may also be caused by negligence during delivery.

Finally comes the fourth element: damages. Naturally, monetary damages can never make a parent or injured child truly “whole,” since, all too clearly, financial recompense will never be equivalent to having a healthy newborn child. That being said, damages available in a birth defect case involving a doctor’s negligence include medical expenses, the cost of an injured child’s ongoing physical rehabilitation, the cost of addressing an injured child’s developmental needs, and damages for loss of enjoyment of life, pain and suffering, and emotional distress.

And time is of the essence in a birth injury lawsuit. In New York, the statute of limitations for medical malpractice is  two and a half years. Ordinarily, New York law “freezes” that statutory limitation period for infants, so that the limitation period will not begin to run until until the infant reaches the age of 18. New York also makes an exception, however, for birth injury actions. Under New York law, the infancy toll in a birth injury lawsuit cannot exceed ten years, meaning that, generally, any claim for a child’s birth injury must be filed before the child reaches the age of ten.

Obviously, parents of a child suffering from a severe birth injury have their hands full. Finding the right New York birth injury lawyer is key to navigating the complex medical and legal issues of a birth injury claim, and, as mentioned, many personal injury lawyers in NYC offer free consultations. An experienced New York birth injury attorney will also help you make sure that you file your case within the applicable statute of limitations period and comply with other statutory deadlines. The sooner you retain an experienced birth injury attorney, the sooner you’ll be able to turn your focus back to where it belongs: caring for your newborn child.

Featured image credit: chritianabella / Pixabay

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