Disclaimer: the following information presented in this article serves only as a general guideline as to what one may experience legally following birth injuries to a baby. If you have further questions, need clarification, or find yourself in this unfortunate situation, it is recommended that you seek the services of an attorney familiar with these types of cases.
Giving birth is one of the most wonderful experiences in the world. This experience can never be compared to anything else. You can never explain the feeling of holding your baby for the first time, feeling his/her skin next to yours and hearing his/her first cry. You’ll imagine different futures that you want for him/her. Then, these dreams and aspirations would soon be crushed when you’ll find out that his/her chances would be lessened because he/she is ill-equipped. And things would get worse when you find that the people you trusted caused this. However, instead of wallowing in grief, you should stand up and fight for your little angel.
Here’s what you should do about your baby’s injury legally:
1.) Build Your Case
a.) Gather Information
You’d need to gather information about your medical records that are related to your pregnancy; from the day you conceived up to the day that you delivered. You should also collect information about your healthcare providers.
- Contact information of your healthcare providers
Name, phone number, home address, and work address.
- Hospital or clinic information
Hospital or clinic address, and facility.
- Date and time
Date and time of conceiving, your first visit to the doctor, your delivery, and when you discovered that something is wrong with your baby.
b.) Hire an attorney
You should hire a lawyer that will help and guide you throughout the whole process.
Your lawyer should be:
- Experienced with cases like yours
Find someone who can understand the different structures of birth injury cases.
- Someone you can communicate with
Your lawyer should be able to communicate openly. He/she should be able to explain to you your case in a manner that you’ll be able to understand.
- Referred by people you trust
Birth injury cases are delicate cases, so you should find someone you can trust. He/she should be someone who’s been referred by people that understand what you’re going through.
c.) Decide in which court you’ll file your case
You should ask your lawyer where you can file your case. However, usually you’ll have to sue in the court that’s located to where you gave birth. At times, there will be complications since the court where you can sue and the state laws that apply to your case can have differences. This can happen if you gave birth in a different state from where you live.
d.) File the notice of your intent to sue
If you’re suing your healthcare providers for medical malpractice, most jurisdictions will require you to file a document called Notice of Intent to Bring a Lawsuit. The notice of intent to bring a lawsuit should be served to your healthcare providers, their insurance company, and healthcare facility that handled your pregnancy and delivery. This is to ensure that they are notified of the lawsuit.
During this period, your lawyer will contact another doctor for you. His/her opinion would only be legally accepted if they are board-certified in the same discipline of the doctor that handled your pregnancy. He/she would be required to provide their certification that you have the right to sue your lawsuit has to merit.
e.) Make sure to complete your complaint
Once your lawyer has finished assessing your case and has decided what kind of claims you have, he/she will then draft your complaint so you can initiate your lawsuit.
Your complaint should identify:
- You and your baby
The pain and suffering you’ve suffered because of the injury, the injury/injuries your baby has suffered, the extent of the damages, and the amount you’re entitled to these injuries and damages.
- Health providers you’re suing
Your doctors and everyone present during your delivery.
- Healthcare facility
The hospital or clinic that oversaw pregnancy and prenatal needs.
- Insurance company of your doctor
Before finally completing your complaint, you and your lawyer will go over your case to make sure that you understand your allegations and what you want the court to do about it.
2.) Filing Your Complaint
a.) Deliver your complaint to the clerk’s office
Some jurisdictions don’t require your presence when filing your complaint with the clerk’s office. However, to ensure that you’re aware of the process, you should go with your lawyer.
After your lawyer pays the filing fee, the clerk will stamp every copy of your complaint.You will then be given you a copy of the complaint about your records, and the rest of the copies will be given to the defendants.
The clerk will then summon everyone you’ve sued, which will inform them how much time they have to respond.
b.) Wait for the defendant’s response
Once the people you’re suing receives copies of your complaint, they have 30 days to respond. If they’re unable to answer, you may win by default.
You shouldn’t be surprised when they file a motion to dismiss against your complaint. This is a standard litigation practice.
Typically, they’ll deny most, if not all, of your allegations. This means that you must prove them during the trial.
c.) Take time to consider a settlement
When your lawsuit survives the motion to dismiss, the defendants will usually offer you a settlement. They’ll do this to avoid going on trial.
In birth injury cases, you’ll be most likely looking for damages. Damages such as loss of your child’s future earning capacity or capacity to care for himself/herself. When you’re considering settling, you have to put your baby’s best interest first.
If you’re having difficulties calculating the amount you should settle for, you can ask for your lawyer and other doctor’s help. They can help to estimate how much your baby will incur over the rest of his/her life.
Advantages of Settlement Over Going to Trial:
- Fewer expenses
Trials are usually less expensive than settlements. When you’re going to trial, you’d need to pay additional fees, travel expenses for you and your witnesses, and a lot more.
- Trials are stressful
Trials can be extremely stressful. Sitting on the witness stand, getting cross-examined by the other party’s lawyer, and opening up your child’s situation to the world can be a mentally and physically exhausting process.
- Shorter period
Settlements take the shorter time than going to trial. Trials typically take 1 to 3 years, and when the defendant files an appeal, this may take longer.
3.) Litigating Your Case
a.) Conduct discovery
If you and the defendant haven’t settled the case, the litigation of your case will continue through the process of discovery.
Discovery will include:
- Evidence and information
You and the defendant will exchange pieces of evidence and information of your claim.
Written questions will be provided. Each party will be required to answer these questions under oath.
Each party will provide documents regarding your case. Documents such as records of your child’s birth and your prenatal care documents. These documents will be crucial to your birth injury lawsuit.
Each party and witnesses will be interviewed under oath. A court-appointed reporter will transcribe the interview. The transcription will be available for later use.
- Expert witnesses
To further give proof of guilt or innocence, you and the defendant can provide expert witnesses. You and your lawyer will have to depose doctors that are board certified in the same field as the doctors you’re suing. They’ll give statements on what’s the standard prenatal care and how to accurately deliver a baby.
b.) Attend any pretrial hearings or conferences
The court will schedule hearings and pretrial conferences to make sure that your litigation is on track. Usually, the lawyers are the only ones required to attend the hearings and pretrial conferences. At this period, the judge and lawyers will outline the whole case to establish what should be discussed during the trial.
If you or the defendants won’t file motions before the trial, you may be required to attend the hearings. Most motions are for the sake of procedure only, and the judge may not schedule hearings in an open court.
c.) Make sure to participate in mediation
Most courts will require both parties to mediate before the trial begins. A mediator will then be appointed to act as a neutral third party. He/she will try to make you and the defendant come to a mutual agreement and give you an agreeable settlement.
If you and the defendant won’t be able to agree, anything that you and the defendant discuss during the mediation will be deemed as confidential. You or the defendant won’t be able to use anything discussed during the trial. If you and the defendant will reach an agreement, the settlement terms are also confidential.
d.) Prepare for the trial
If you and the defendant won’t resolve the case by settlement and negotiations, the next step will be to present your case to the jury and judge.
During this period, you and your lawyer should be in constant contact. He/she will help you decide on your final list of witnesses for the case. He/she will guide you in matters related to the preparation of the trial.
While going through this time, you should never disregard the opportunity for settlement, even when the trial starts.
There’s no amount of money that will be able to equal to what you, your baby, and family are going through right now. However, you should never forget that your child’s well-being should be on top of your list. You should always bear in mind that you’re doing this for your child; you’re suing them for your child’s behalf, not for your benefit.
Dianna Charles is a promising young law enthusiast that hopes to bring her youthful spirit in her field. She tries to add a refreshing modern take to topics on the legal world that people can learn from. Dianna enjoys her free time with friends and family, and loves to cook for them.