The birth of a baby should be a time of joy and new beginnings. Unfortunately, when an infant is injured during the birthing process, this excitement is often replaced with fear and uncertainty. Not all injuries from the birth process are caused by negligence or malpractice. However, those that have a link to negligence or malpractice have the potential for legal action. The following are common steps to take when pursuing legal action for a birth injury.
Schedule a Consultation with a Lawyer
In a legal consultation with an attorney, the lawyer will gather as much information and evidence as they can. Once they feel they have sufficient information to give a professional opinion, they will be able to advise whether a lawsuit will hold up in the court of law.
Depending on how much information the lawyer needs, it could take some time for them to gather the information required to give well-informed legal advice. Bring as much documentation as possible to the consultation, including as much medical documentation and information as possible. This will help expedite the process. The attorney will know the questions to ask to ensure they have the critical points needed to build a case.
Receive Legal Advice Based on the Initial Consultation
Once the lawyer has all the information they feel they need, they will make recommendations on the next steps to take. In some instances, they may recommend taking the case to court, giving their opinion of the chances of winning the case and how much the case could be awarded in damages.
In place of taking the case to court, the lawyer may recommend other options for pursuing compensation. One such option is to write a demand letter to the defendant.
Before deciding how to proceed, be sure that all the information needed to make a well-informed decision has been explained and that you fully understand it. This is your life after all, so take the time you need.
If further legal action is required, the lawyer will likely need a signed agreement to outline client rights and lawyer’s fees. Typically, lawyers will only get paid when a settlement is made, or a judge awards compensation. Be sure to ask about payment if it is not clear in the agreement.
Send the Defendant a Demand Letter
A demand letter can be sent regardless of whether further legal action is planned. This letter explains the evidence and demands compensation. Sometimes, the defendant will offer a settlement right away. According to the Safe Birth Project, demand letters are often most successful if they demand smaller amounts of money.
File a Formal Lawsuit
If the demand letter is not successful or one was not sent, the next step is to file a formal lawsuit. Often, lawyers will want to wait until the child has recovered as much as possible. This is called the “point of maximum medical improvement,” also referred to as MMI. Before they reach this point, it is difficult to predict how much compensation should be demanded because it is unknown to what level their condition will improve.
Waiting for the MMI is ideal, but certainly not always practical. Lawsuits take time, and when financial resources are being depleted, it can be difficult to delay the process for any length of time. Additionally, the statute of limitations must be considered when deciding when to file a lawsuit. Thus, any advice on the perfect time to file a suit is necessarily subjective.
When the formal lawsuit is filed, the lawyer will write up a complaint and file it through the proper channels with the court.
Wait for the Discovery Process
The discovery process is when both sides of the lawsuit obtain evidence from each other and outside sources, including witness depositions, documents, medical records, etc. Both sides will likely obtain an expert witness that will support their claims. Discovery can take months, so it is important to be patient during this time.
Consider Settlement Options
It is normal for the defendant to offer a settlement at any point during the process. Legally, a settlement can be agreed upon at any point until the judge issues a court order. The defendant is motivated to save on legal fees and settle for a lesser amount that what the judge could order. The plaintiff is also motivated to settle to save on legal fees and receive compensation sooner.
It is important, however, to speak with a qualified birth injury lawyer before agreeing to a settlement. If a case is strong for the plaintiff, it may be beneficial to turn down the settlement offer and go to trial, where the payout could be more substantial. However, it is important to remember that no trial is a sure thing, while a settlement is a guaranteed payout.
Bring the Case to Court
It is common for cases to take months before they are tried in a court of law. Additionally, cases can be pushed back as other cases take longer than expected. At the trial, both sides will present their evidence, provide witness testimonies, and present arguments for their side.
The length of the case will depend on its complexity. It could take a couple of hours to multiple weeks, depending on how much information is presented.
Once both sides have presented their information, the jury will deliberate and return a verdict.
The court Issues a Decision
Once the court issues a decision, the defendant will either be exonerated of the accusations, or they will be ordered to pay damages to the plaintiff. Regardless of the outcome, either side has the option to appeal the decision and take it to a higher court. Most individuals choose not to appeal the decision, however, since it costs much more in legal fees and can often take several years before the trial.
Receive the Settlement
If the court issued a settlement amount or if a settlement was agreed upon out of court, money is due to the plaintiff. In most cases, compensation can be issued in one of two ways: a lump sum payment, or structured payments.
Agreeing upon the payment form is also an important part of the settlement process that a birth injury lawyer will guide you through. By approaching the process armed with this information, hopefully, you will be able to successfully get the financial justice you and your family deserve. This period in any parent’s life is stressful and heartbreaking, but there are great attorneys out there with the skills and expertise to help you along this process.