How birth injury claims generally work

What a claim has to show

In general terms, a medical negligence claim must establish three things:

1. that the clinicians owed the mother and baby a duty of care;
2. that the care provided fell below the standard of care, meaning what a reasonably careful clinician in that field would have done in the same circumstances; and
3. that this shortfall caused the injury, as opposed to the injury having another cause.

Each element has to be proved, and in birth injury matters the second and third usually require physician experts. Because many birth-related conditions have several possible causes, causation is examined with particular care.

The stages, in general

• Initial consultation

  An attorney listens to what happened and asks about the pregnancy, the birth and the child’s condition. Many will say at this stage that they do not see a claim, and a good attorney says so honestly.

• Obtaining the records

  With your authorisation, the attorney requests the complete prenatal, labor and delivery, newborn and follow-up records, including the fetal monitoring strip and, if examined, the placenta pathology. This can take weeks. Our records guide explains what to ask for.

• Expert review

  Physician experts, typically in obstetrics and in a pediatric specialty, review the records to assess the standard of care and causation. Many matters end here when the experts do not support a claim.

  State rules vary

  Some states require a written expert opinion or certificate of merit before a claim can be filed.

• Pre-suit steps

  State rules vary

  Some states require formal notice to the providers, a waiting period, or review by a screening panel before a lawsuit may be filed.

• Filing and litigation

  If the experts support the claim, the attorney files the lawsuit. Litigation involves exchange of documents, depositions and expert reports, and can take years. Filed cases may resolve by agreement before trial, and some go to trial.

  State rules vary

  Time limits for filing, how they apply to a child, and any outer limit that applies regardless of when the injury was discovered, all differ by state.

• Resolution

  If a case resolves in the child’s favor, courts generally supervise how funds for a minor are protected. The attorney’s fee comes from the recovery under rules set by the state and the written agreement you signed at the start.

  State rules vary

  Some states limit certain categories of damages or attorney fees in medical negligence cases.

Florida and Virginia

These two states operate compensation programs for certain qualifying birth-related neurological injuries. For an injury that qualifies, the program may be the exclusive route, meaning a conventional lawsuit may not be available, or may be available only in limited circumstances. The programs and the statutes that create them are linked from our state framework; any attorney you speak with in those states should explain how the program applies to your family.

How long it takes

Honestly: a long time. Obtaining records takes weeks, expert review takes months, and a filed case can take years. An attorney who promises a quick result is telling you something useful about themselves.

What it costs you

Consultations are commonly free, and birth injury attorneys generally work on a contingency basis, meaning the attorney’s fee is a percentage of any recovery and no fee is owed if there is none. Whether the costs of experts and records are owed if the case does not succeed depends on the written agreement. The percentage and who pays those costs are set in that agreement; read it, and ask about both before signing. Our questions guide covers what to ask.