What is a birth injury? A birth injury is damage or injury to a baby that results from some event during the birthing process. These injuries are not always visible at the time of the birth. An eye injury may be visible, but the function or deficit of sight might not be known until a later time. These injuries are often caused by negligence of medical professionals or the medical facilities.
If the birth injury is serious, it could result in short term or everlasting medical treatment and related expenses, in which case the parents may be entitled compensation to help pay for those injuries and damages. Birth injuries are not immediately identified, and even when they are, the extent of future harm or damage to the development of the child may not be known until the child is older. The damage may not be realized until the child shows deficits in reaching developmental milestones. It is important to contact legal counsel to file a claim as soon as you realize there is a problem that may have resulted from a birth injury.
Risk factors for a birth injury.
- large-for-date infants, especially infants who weigh close to 10 pounds,
- instrumental deliveries, commonly using forceps,
- vaginal breech deliveries (feet or buttock first presentation),
- abnormal or excessive traction during a delivery.
New York State law. New York State medical malpractice laws have no limit on damages, which is a powerful source of economic strength against birth injury claims that will require a lifetime of special treatments, medical costs, and other related expenses due to the malpractice that caused the damage. The statute of limitations on a medical malpractice claim is 2 years and 6 months from the time of the injury, with modified joint and several liability (joint and several liability for economic damages; several liability only for noneconomic damages), if the fault is proven to be fifty percent or less.
Attorneys’ fees sought after in a medical malpractice in New York are based upon a structured settlement ranging from 30% for the first $250,000, reduced to 25% for the next $250,000, then 20% of the next $500,000, further reduced to 15% of the next $250,000 and then another 10% if the amount is over $1.25 million dollars. When there are awards that are granted for future pain and suffering due to the injury exceeding $500,000, the court has input on a lump sum amount greater than 35% of that amount resolved by payments over eight years, as determined by the court.
New York State Indemnity Fund. The New York State Indemnity Fund is a fund that provides for future health costs that are associated with birth-related injuries in the state of New York and provides future health care costs funds that are due to birth-related neurological injuries. The New York State Medical Indemnity Fund (NYSMIF) was “established in 2011 to provide a funding source for future health care costs associated with birth-related neurological injuries.”
Frivolous filing of malpractice claims. Filing of medical malpractice claims in New York Courts is contingent upon a review by a qualified medical expert who supports the claim of malpractice based on best standard of care practices regarding childbirth. If the expert concludes there is a reasonable basis for filing the suit it can be filed.
Settlement without court. If the defendant in the case admits to liability due to his/her actions or lack of action, they may demand the claimant in the action to consent to arbitration proceedings to settle the damages sought. A settlement conference is a mandatory condition of this action.
Statute of limitations. The statute of limitations in New York for a medical malpractice case has a two, and a half year window to bring a lawsuit against a private health care provider. Section 208 provides that in the event of medical malpractice, an extension of time cannot be longer than ten years; for example, regarding a birth injury, the suit must be started before the child’s 10th birthday by a legal guardian.
Seek legal counsel. If your child suffered an injury at birth, you should seek out a qualified medical malpractice attorney’s legal advice immediately. Your attorney will begin gathering essential information needed for a formal claim of action.