Personal Injury Representation

We handle catastrophic injury claims in Charleston and the surrounding West Virginia areas.

  1. Home
  2.  » 
  3. Articles
  4.  » Mounting a Birth Injury Lawsuit
View Our Practice Areas

Mounting a Birth Injury Lawsuit

When an otherwise healthy fetus sustains brain injuries or other injuries during birth owing to the negligence of the medical team involved, you may be able to obtain compensation by filing a lawsuit. This article looks at how birth injury lawsuits work.

A birth injury lawsuit is a legal action that you use to help gain justice for mistakes made during the birth of a child in your family if the mistakes result in complications such as cerebral palsy or Erb’s palsy. Cerebral palsy, for instance, is commonly caused by denial of oxygen to the child’s brain around childbirth.

Birth injury lawsuits are brought against the medical personnel assisting in the flawed birth of a child. During such a legal proceeding, attorneys defending either side put together evidence to help prove their view. Families often hire experienced birth injury lawyers to enable them to obtain damages and compensation. They need these resources to help take care of the child’s special needs: adaptive equipment, therapy, and home modifications can be expensive.

Should you bring a birth injury lawsuit?

The primary goal of a lawsuit in a birth injury case is to obtain compensation that pays for the child’s medical costs, both current and future. Your birth injury lawyer could use their experience to work out how much money is likely needed to help care for the child through life. Your lawyer could also bring in a life care planner to help draw up realistic estimates of these costs. Bringing a lawsuit can also give you the satisfaction of holding medical personnel to account for their mistakes, bring you closure, and help other families in the future avoid the fate that has befallen you.

What is the right time to launch a lawsuit?

It is best not to delay birth injury lawsuits. The sooner you begin proceedings, the quicker you’re likely to obtain compensation and ease your financial burden. You may, in some cases, need a medical professional to provide you with an affidavit before you get started, vouching to the need for legal action. You may also prepare evidence that demonstrates that medical negligence was involved.

There is a statute of limitations on the time you have to mount a lawsuit. In West Virginia, that is two years from the time of the occurrence of the injury, or from the time that you learn about it. Merely claiming ignorance about a birth injury, however, doesn’t prevent the statute of limitations from running out.

What kind of compensation can you hope for?

Families are able to recover economic damages, non-economic damages, and punitive damages in birth injury cases. While there are no caps on the amount of the economic damages that you might claim, there are limits on the other two kinds of damages. You may recover up to $250,000 in non-economic damages for each birth injury, for example. The limit doubles for death, disfigurement, or other permanent disability. Punitive damages top out at $500,000 or four times as much as the compensatory damages awarded, whichever is greater.

You can also take legal action in wrongful birth cases

When a child is born with birth defects that a physician should have reasonably been able to foresee with regular sonograms and other tests, the parents are able to sue the physician for the loss of a chance to terminate the pregnancy. West Virginia allows wrongful birth actions. Parents are able to recover the extraordinary costs involved in raising the child to adulthood, and even after.

The birth injury legal process

Mounting a birth injury lawsuit begins with drafting a demand letter. Before filing a lawsuit, your lawyer sends such a letter to the doctor whom you believe was responsible, and demands a certain amount of compensation. If the doctor agrees to pay at this stage, you wouldn’t need to actually go through with a lawsuit. If the doctor rejects the demand, however, your lawyer would need to build your case and meet the doctor in court. They would need to put together detailed information on how the exercise of modern medical standards could have prevented the birth injury.

Once a lawsuit is filed, the court gives the defendants a certain amount of time to respond and defend themselves. If they don’t respond, you win your case by default. If they do reply, your lawyers need to go to work on the discovery phase. In this stage, they put together information on the basis of depositions and medical documents. The other party is likely to have their own lawyers gather information to contest your claims.

Once all the information involved is on the table, both sides study it, decide on how persuasive a case exists, and attempt to discuss a potential settlement: a compensation package given in exchange for the understanding that neither side formally wins or loses. A settlement is a quick way to gain the financial support that you need for the care of your child without going through lengthy legal proceedings. If a reasonable settlement isn’t forthcoming, however, your lawyer will proceed to take your case to court.

If you believe that you may have a birth injury or wrongful birth case on your hands, it’s important to take action as early as possible, and contact an experienced West Virginia injury lawyer.