Most of us have watched crime dramas on TV. Those crime dramas tend to focus on finding the suspect and the necessary evidence. Once you find the murderer and the smoking gun, the episode ends — case closed! Of course, real cases aren’t that simple.
To win a birth injury case, you do need a defendant and evidence. However, it’s rarely as clear-cut in real life as it is on TV. Medical malpractice doesn’t often leave a smoking gun. So, what does it take to prove a birth injury case?
In this guide, we’ll talk about civil birth injury cases. In civil cases, one party sues another party for compensation, usually in the form of money. There are criminal medical malpractice cases for birth injuries, but we don’t address them here.
When you file a lawsuit, you have to name a defendant. It’s not enough to say that your child was injured and someone at the hospital was responsible. Choosing the right defendant is a key aspect of your case. If you name the wrong defendant, you’ll have to file a whole new case and start all over with the right defendant.
You and your child may have received care from a number of doctors, nurses, and other staff. Any of those individuals could have caused your child’s injury. In some cases, the hospital or clinic may be at fault for having bad equipment, for failing to manage your case appropriately, or for hiring someone who wasn’t qualified to treat you. In other cases, a combination of individuals or institutions is to blame. You may need to name multiple defendants.
In most cases, you’ll name both individuals and institutions as defendants. Individuals may have made the mistakes that harmed your child, but the institutions that hired them are responsible for their actions. The legal theory of “respondeat superior” means the hospital is liable for the actions of its employees while they’re working. Some doctors are independent contractors, not employees, so respondeat superior may not apply. In that case, you’ll need to show that the hospital either knew or should have known that the doctor was prone to medical negligence in order to include the hospital in the case.
There’s a benefit to including the hospital or clinic in your case: they have much more substantial insurance coverage than individual care providers and can afford to pay out much more in compensation for your child’s injuries.
See also: Birth Injury vs. Birth Defect
Now that you’ve decided whom to sue, it’s time to actually go about proving your case. A birth injury case requires four elements: proof that an injury occurred, proof that the medical care provider had a duty to care for your child, proof that the doctor failed to meet that standard, and proof that the failure caused the injury.
Criminal cases must be proven “beyond a reasonable doubt.” Birth injury and other civil cases, on the other hand, must be proven by “a preponderance of the evidence.” That’s an easier standard. You can win even if the jury has reasonable doubts. It just has to be more likely than not that each element of your case is true.
The preponderance of the evidence standard of proof is crucial for birth injury cases. The evidence in a birth injury case may come in the form of medical records, testimony by witnesses and experts, and more. Because multiple different issues can sit at the root of most birth injuries, the evidence is rarely a smoking gun.
For example, cerebral palsy could be the result of a genetic mutation, which a doctor could not help, or asphyxiation due to medical negligence. You don’t have to rule out every conceivable alternative explanation. You can show that the baby appeared healthy on ultrasound before delivery. Then you can show that the baby started showing signs of distress during delivery, but the doctor didn’t act to speed up delivery. Then you can show that the baby was trapped in the birth canal for several minutes.
These pieces don’t add up to absolute proof that the doctor caused the baby’s cerebral palsy, but the evidence shows that to be a probable explanation. The jury can see that it’s more likely than not that the doctor was at fault.
Getting Your Evidence
Birth injury cases require a lot of technical evidence. It takes test results, x-rays, MRI scans, and more. It takes experts to explain the evidence and to discuss what your doctor should have done. When you decide to file a birth injury lawsuit, you don’t have to come up with all of that evidence. You can just bring the medical records you have and your attorney will take care of the rest.
Using legal tools such as subpoenas, your attorney can gather the information necessary to prove your case. That may include the hospital’s internal records, your child’s test results, testimony from experts, and more. You don’t have to call the hospital looking for the proof you need.
Thinking of Filing a Birth Injury Lawsuit? What You Need to Do Next
If you’re considering a birth injury case, you should gather up your child’s medical records. You should also keep notes on any doctor’s appointments, followups, medications, therapy, and other care your child needs. Keep records of any communication you have had with your doctor or the hospital. Take all of that to your attorney. Your attorney can get the rest of the information necessary for your case.
Most attorneys offer a free consultation so you can ask about your case without spending any money. You can ask about the strength of your case, how long the case will take, how much compensation you can expect to win, and any other questions you may have.
Remember to ask about the attorney’s fees. Many take birth injury cases on a contingent-fee basis, so they only get paid if you win.