Frequently Asked Birth Injury Questions
Any injury sustained at birth which resulted from the negligence of the medical care is eligible for compensation. The most common (and severe) injuries include Brachial Plexus Palsy, Erb’s Palsy, Klumpke’s Palsy, Shoulder Dystocia, Caput Succedaneum, Cephalohematoma, Perinatal Asphyxia, Intracranial Hemmorhage, Subconjunctival Hemmorrhage, Paralysis, Spinal Cord Injuries, Cerebral Palsy, Brain Damage, Bone Fractures, Skull Fractures, Birth Infections, Persistent Pulmonary Hypertension, misuse of forceps or vacuum extractors, failure to administer steroids in a premature birth situation, cord strangulation/asphyxia.
As with any medical negligence claims, birth injury claims are very strongly defended by the medical insurers and defence team. They will not concede fault, and will dispute every element of compensation you claim. The medical defence team is a group of highly skilled lawyers backed by a multi-billion dollar defence fund. They will resist and dispute everything. A skilled lawyer with financial resources is needed to prove the claim and take the claim to trial, which many times will be necessary. Further, birth injury claims – again like all medical malpractice claims – are difficult to establish and prove to the satisfaction of a court. A skilled trial lawyer is needed to be successful on the claim
Birth injuries will take a long time to resolve. As noted above, the defence team will not admit liability, and will fight the claim aggressively. This will require moving the claim towards trial, and it will likely only settle just before trial, or at trial with a judgment. Trials can take years to reach. Also, and more importantly, prior to a birth injury claim resolving, it is necessary that we know the long term effects of the birth injury to the child, and that is often not known for many years.
There will be an extensive review of medical records to prove negligence. These records will have to be reviewed by medical specialists to provide opinions as to the extent of that negligence. The child will then be monitored to determine the extent of the impact on the child for their life. A lawsuit will be filed, and parents will need to be questioned on what happened at the birth, and how their child has been impacted. Your lawyer will question the medical team involved in your child’s birth to get evidence on negligence. There may or may not be negotiations. Ultimately, the claim will either settle out of court, or a trial will be necessary.
It is generally advisable to hire a lawyer as soon as possible so that the lawyer can review the medical records as early as possible. While not necessary, filing the lawsuit within the first year is usually ideal. Technically, your child has until two years after they reach the age of majority to file the lawsuit – however, there are things that could create issues with waiting that long (such as a Notice to Proceed or the Ultimate Limitation Rule). Also, if the parents are claiming compensation, then filing no later than 2 years after the birth is generally safest. Overall, while there may be considerable time to file the lawsuit, the longer time which is allowed to pass the more chance there is that risks may arise, and the harder it may be to prove the case.
When selecting a birth injury lawyer, you need someone skilled, experienced, and with the financial resources to fight the claim. Further, you need a lawyer who has a proven track record of going to court, and being successful in court, particularly at all levels of court (trial and appeal levels). Your lawyer must be someone who is financially prepared to go to trial, and not afraid to take your case to trial. Your lawyer must also be someone who can go to appeal courts if necessary, as trial decisions in birth injury cases are frequently appealed to higher courts as a result of their complexity, and the amount of compensation involved
The list of symptoms is wide spread. The most severe symptoms involve brain injuries, physical defects and deformities, cognitive impairments, or problems with motor (moving) skills. However, anything with your child that seems “off” should be viewed carefully.
Pursing a birth injury claim can theoretically be costly. You will have a senior lawyer and his staff working for you for potentially many years. High priced medical specialists will need to be hired at the appropriate time to provide medical opinions. Generally, the cost of pursuing these claims would be beyond the ability of most parents to pay. However, at Preszler Law we work on a contingency fee basis, meaning our fee is based on what we recover – if there is no recovery then no fee is charged. Further we fund the litigation expenses needed to bring the claim forward. Accordingly, parents can come to us without needing to be concerned about having to pay out money to us to bring their claim. Our fee and disbursement recovery will come at the end of the claim from the settlement proceeds.
Your lawyer will take care of obtaining medical records. At Preszler Law, we often order the records, review them, and then discuss with the parents whether we believe a viable negligence claim exists. That said, you can, as a parent, request the records directly before contacting a lawyer. Simply request them from the hospital and they will be provided, though that may take a few weeks or months.
The experts who are consulted will vary depending on the type of birth injury and the damages caused. Generally, at the beginning, specialists in pre-natal care, emergency room procedures, and birthing will be consulted. If negligence is found then subsequent experts may be consulted who can determine the lifelong impact of the injury and what compensation needs to be paid to fund what is needed.
Brain injuries are typically diagnosed by the treating doctors and specialists at the hospital. However, the fact they have diagnosed a “brain injury” does not mean they are saying it is the result of negligence – as noted above negligence is never conceded. They will simply say that it occurred and will likely say it was the result of an unavoidable issue with the pregnancy. Your lawyer will need to look through the records and consult specialists to determine if a claim for negligence can be made out for causing the brain injury. Further, even if a brain injury is not initially diagnosed, but you suspect your child is “off”, subsequent specialists, including ones that may be obtained by your lawyer, may diagnose a brain injury at a later date.