There’s a reason lawyers have to go to school for three extra years — lawsuits are complicated! In addition, courts are handling many cases all at once. Your case will need to be scheduled in with all the rest every step of the way.
Let’s take a look at how a birth injury case works.
The time you discover your baby’s injury is important because that’s when the “statute of limitations” kicks in. The statute of limitations is a state law that limits the amount of time you have to file a claim for a given issue. In Ohio, for example, you have a year from the time you discovered the injury to file, but no more than four years after the date the injury occurred. In Missouri, you have two years after discovery to file, but no more than 10 years after the date the injury occurred.
Some states include special rules for minors in medical malpractice cases. In Kentucky, for example, the statute of limitations for an injury to a minor doesn’t start running until the minor reaches the age of 18.
After the statute of limitations has run, you no longer have the right to file a claim. Even if you think the statute may have run, you should speak to an experienced local attorney. The rules can be complicated and there are occasional exceptions.
Working with Your Lawyer
Now that you’ve discovered the injury, you’ll have a consultation with a lawyer about how to handle your case. The lawyer will interview you thoroughly about the injury, about the pregnancy and delivery, and about how your child is doing now. Feel free to ask any questions you may have about how a lawsuit works and what you’ll need to do going forward.
Your lawyer will then need to gather other evidence, including complete medical records from the time of the injury and for any subsequent treatment your child has received. This can take a while — sometimes months — because hospitals and doctors’ offices are typically slow to respond to requests for records.
Once your lawyer has gathered all the evidence she needs, she’ll help you decide if a lawsuit is the right choice for you and your child. She’ll explain your chances of winning and how much you may be able to win. She may also be able to offer you other options for getting compensation, such as writing a demand letter. Make sure you ask for clarification on anything you don’t feel comfortable with. You should only make a decision when you feel you understand your choices.
If you do decide to hire the lawyer, you’ll need to sign an agreement that describes your rights as a client and lays out the lawyer’s fees. Make sure you understand the terms of the agreement and keep a copy for your records.
Starting the Legal Process
Whether or not you decide to file a complaint, you and your lawyer may choose to write a demand letter to the doctor or hospital’s attorney or insurance company. The letter will explain what happened and make a demand for compensation. This can lead to an early settlement without the cost and trouble of a full lawsuit. However, a demand letter is typically only useful in cases that involve small amounts of money.
If the demand letter does not get the desired response or if you choose not to send one, the next step is filing a formal lawsuit. Your lawyer will want to wait until your child has reached the “point of maximum medical improvement,” or MMI. This is the point at which your child has recovered as much as possible. Until your child reaches MMI, your lawyer won’t be able to accurately judge how much compensation you deserve.
The decision for when to file requires balancing the need to reach MMI with the need to fit within the statute of limitations. This decision may also be affected by your family’s financial situation. If you need money immediately, you may want to file before your child reaches MMI.
When it’s time to file, your lawyer will write a formal “Complaint” and file it with the appropriate court. With the Complaint, the lawsuit has begun. You are now the “plaintiff” and the people you’re suing are the “defendants.”
Once the lawsuit is filed, the next step in the process is called “discovery.” During discovery, the lawyers for both sides will get the evidence they need from each other. That can include taking depositions from witnesses, requesting documents from each other, and more. You may be surprised to find that the two sides of a lawsuit are required to share evidence with each other — you can’t hide anything from the other side.
One of the most important parts of the discovery process in a birth injury lawsuit is the expert witness. This is a doctor, usually from the same field as the defendant, who can explain the accepted standard of care and how your doctor breached that standard. There may be more than one expert witness, depending on the case.
Discovery can take a long time — up to a year, depending on the rules of the particular court you’re in.
Now that both sides have a clear picture of the case, they can start to negotiate a settlement. The vast majority of birth injury cases (and personal injury cases in general) end in a settlement. Trial is expensive and time-consuming and the outcome is uncertain. Settlement is easier and cheaper for everyone. Your lawyer will negotiate with the lawyer for the defendants to get a settlement offer.
While settlement is much faster than trial, the amounts paid out at settlement are typically much lower than those won in trial. In fact, the average jury awards in successful trials for medical malpractice are more than double the average settlement amounts.
You’ll need to balance the time it would take to go to trial with the amount you could win. Remember to consider how strong your case is — a weaker case is worth a smaller settlement but may be worth nothing at all at trial. Finally, consider that the outcome of a trial is uncertain. You may get double your highest settlement offer or you may get nothing.
This decision is yours. Your attorney can help you understand your options and your chances, but you have the right to accept or reject a settlement offer regardless of your attorney’s advice.
The settlement process can last right up to the start of a trial. Sometimes, settlements happen in the courtroom just before the trial actually starts.
Without a settlement, it’s time to go to trial. The timing of your trial will depend on the caseload of the court. If they’re very busy, you may have to wait for months or longer. For the same reason, your trial date may be moved back as other trials run longer than expected.
At trial, your lawyer and the defense lawyer will present their evidence. You may be asked to testify. The expert witness(es) will explain their opinions. The lawyers will present arguments about the relevant points of law. The whole process can take anywhere from a day to a week or more, depending on how complicated your case is. When everyone is done presenting their evidence and arguments, the jury will make a decision. They’ll decide whether or not the defendants were negligent. If they were, the jury will decide how much compensation they owe you.
Whatever the outcome, either side can choose to appeal the decision to a higher court. However, appeals are very expensive and take a very long time — usually several years.
Getting Your Compensation
If you accepted a settlement offer or if the jury awarded you compensation, how will you actually get the money? In general, you have two choices: structured payments and lump sum payments. If you receive structured payments, you’ll get regular payments over time up to the amount of the settlement.
A lump sum is payment all at once. If you choose a lump sum, you’ll get less than the dollar value of the settlement. You’ll get the “present value” of the total dollar amount. Present value means that if you invest the lump sum and it earns interest, it will add up to the dollar value of the settlement over a certain amount of time. Usually, the timeframe is the amount of time during which you would be receiving structured payments. So, the lump sum and the structured payments are theoretically worth the same amount and differ only in your options for managing them.
If you settle, you can negotiate how you want to receive the money as part of the settlement agreement. If you’re awarded damages at trial, the court will often set up structured payments to ensure that your child has a steady stream of resources over time.
Remember that the majority of the compensation you win belongs to your child. Courts will often set up a trust for the benefit of your child to protect the money. You may also win compensation for your own expenses, emotional distress, loss of consortium with your child, and more.
See also: The Cost of Cerebral Palsy
Most attorneys take birth injury cases on a “contingent-fee” basis. That means they get paid a percentage of the compensation you win. If you don’t win anything, you don’t pay anything. Once you’ve settled or won a jury award, you’ll need to pay your lawyer as described in the agreement you signed when you hired her.
As you can see, a birth injury lawsuit is a complicated process. The best thing you can do is find a lawyer you trust as soon as you find out that your child has been injured. Shop around until you meet a lawyer who understands your needs and concerns and who makes you feel comfortable. After that, it’s all a matter of patience.