Fri, 08 Dec 2023

8 Steps to Fighting a Birth Injury Case

14 Nov 2023, 21:41 GMT+10

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When there are complications during labor and delivery, it can unfortunately result in devastating birth injuries for the child that last a lifetime. From cerebral palsy to brachial plexus injuries, these types of birth injuries arise when critical medical errors are made during the birthing process. While no amount of financial compensation can ever make up for the challenges the child will face, pursuing a birth injury lawsuit can help the family obtain funds to pay for essential medical care, therapies, equipment, education, and other necessities.

If parents believe their child suffered preventable harm due to negligence on the part of healthcare providers, it is imperative that they understand the legal process and key steps involved in fighting for justice through a birth injury case. Here are eight important aspects of navigating a birth injury lawsuit:

1.   Work With an Experienced Birth Injury Attorney

The first vital step is to partner with a lawyer who focuses their practice specifically on birth injury litigation. These cases are extremely complex, both medically and legally. A general personal injury lawyer does not have the specialized expertise required here. It is critical to have a legal advocate who is deeply experienced in every facet of birth injury law. They will be able to thoroughly evaluate the details of the case and provide clear guidance on whether there are legitimate grounds to move forward with a lawsuit.

Having a highly skilled birth injury attorney maximizes the chances of a favorable outcome. The attorney will take care of collecting records, assembling the strongest evidence, negotiating for the maximum possible settlement, and arguing the case effectively in court if a settlement can't be reached.

Don't hesitate to speak with a representative who can connect you with a birth injury attorney tailored to your specific needs. This initial conversation can provide clarity and direction as you navigate the complexities of a birth injury lawsuit.

2.   Gather Medical Records

After taking your case, your birth injury attorney will start gathering all relevant medical records related to your pregnancy, labor, and delivery and your child's neonatal and pediatric care. This includes prenatal and obstetrical records from all providers involved, complete labor and delivery hospital records, neonatal intensive care unit (NICU) records, pediatric follow-up records, and any imaging study results or specialty test results.

Thorough and comprehensive medical records are key to proving exactly when, where, and how the birth injury occurred, as well as whether proper protocols were followed. Records thoroughly document the care provided and highlight any negligent actions or omissions. Your attorney will leave no stone unturned in obtaining a complete set of medical records related to your pregnancy, delivery, and child's care.

3.   Calculate Damages

To seek fair and full compensation, your attorney will thoroughly calculate all the damages - meaning all the medical costs, therapies, equipment, educational supports, lost wages, and other necessities your child will need over their lifetime because of the birth injury.

A life care planner, who is an expert in calculating future medical costs and needs, will create a comprehensive life care plan estimating the costs of all the medical care, therapy, surgeries, assistive technology, educational supports, in-home care, transportation, housing modifications, and other expenses your child will incur over the course of their life due to their birth injury.

4.   Send Notice of Intent to Sue

Before your attorney files the actual lawsuit, they will send a formal notice of intent to sue to all potential defendants. This important step starts the legal process and prompts the defendants to preserve all evidence related to their case.

The notice of intent to sue outlines the key details of your claim and clearly conveys your intent to pursue litigation if a satisfactory settlement is not reached. It provides pertinent information about your pregnancy, delivery, child's diagnosis, and how the care providers involved failed to meet medical standards.

5.   File the Lawsuit

If a reasonable settlement is not reached within a specified time period after sending notice of intent to sue, your attorney will take the next step of filing a lawsuit in the appropriate court. This formal legal complaint names as defendants the specific providers and institutions whose negligence caused your child's birth injury.

The defendants typically include the obstetrician, nurses, pediatrician, anesthesiologist, midwife or doula if involved, the hospital or birth center, and sometimes the prenatal clinic or medical group as well.

6.   Attempt Settlement

Many birth injury cases are able to reach settlement agreements out of court once liability becomes clear through the discovery process. Your attorney will work aggressively to negotiate the maximum possible settlement that will sufficiently provide for your child's extensive needs throughout their lifetime.

Settlement negotiations are often long and complex but can avoid the further time and expense of a trial. Your attorney's goal is to secure a large enough settlement to cover all of your child's costly medical care, therapies, equipment, educational supports, and other necessities over the course of their life due to their birth injury.

7.   Go to Trial

If earnest settlement negotiations fail to result in adequate compensation, your birth injury case will go to trial before a judge or jury. Your attorney will diligently prepare for trial and have you ready as well.

At trial, your attorney will passionately argue your case and aggressively work to prove negligence occurred. They will present all the convincing evidence gathered through discovery and call on medical experts to testify about how the defendants' lapses caused your child's birth injury.

8.   Get Compensation

If you win your birth injury case at trial, or if a settlement is successfully negotiated before trial, the financial compensation obtained will be protected in a special needs trust set up for your child. This ensures the funds are used only for your child's medical care, therapies, equipment, education, and other necessities arising from their birth injury.

The funds cannot be misused or depleted. Having this compensation provides immense relief, knowing your child will be cared for. Though no amount of money can make up for what happened, it can greatly improve your child's quality of life.


The impacts of birth injuries on children and families can be devastating, but seeking compensation through a lawsuit can help provide for a lifetime of care. Following these key steps, with the help of a knowledgeable attorney, will give you the greatest chance of success in fighting your birth injury case and obtaining funds that can significantly enhance your child's quality of life.

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