A Nationwide Birth Injury Resource

Malpractice Lawsuits and Birth Injuries

Not every birth injury is preventable - but many are. When a child sustains a long-term or permanent injury due to medical malpractice, families need to be aware of their legal options. In particular, one way to pay for the medical care your child needs may be to pursue a malpractice lawsuit against the negligent medical provider.

Understanding standards of care

In order to file a malpractice lawsuit, it's not enough to show that your child was injured while in medical care. The law does not expect doctors to prevent every injury imaginable. Rather, you need to demonstrate that a doctor did not meet the established standard of care.

The "standard of care" is a legal (rather than medical) term that refers to the level of care that could be reasonably expected from an average medical doctor in the same specialty with the same available information. Failure to provide the minimum standard level of care to someone with a medical issue is negligence and could be grounds for a medical malpractice case.

For example, if your child sustained a traumatic injury during the labor and delivery process while under the care of an obstetrician, a medical malpractice lawsuit would need to prove that:

  • The obstetrician failed to provide the level of care that an average obstetrician would provide in the same circumstances with the same available information; and
  • The obstetrician's failure to meet that standard of care caused the traumatic injury.

How medical malpractice lawsuits work

Medical malpractice claims are governed by state law, and as such, they vary widely depending on jurisdiction. Typically, the patient's attorney needs to review medical records, investigate what happened that led to the child's injury, and reconstruct what would have happened if the provider had followed the standard of care. The lawsuit needs to present a narrative that shows a causal relationship between malpractice and injury. In most cases, the attorney needs to retain a medical expert in the same specialty to testify that the standard of care was not met.

Damages (financial compensation) recovered in a malpractice lawsuit can include the cost of:

  • Medical procedures, medications and medical devices needed to care for the injury;
  • Modifications to the home required to accommodate a disability;
  • Long-term care, which may include in-home nursing or even a long-term care facility;
  • Pain and suffering, lost quality of life and other more subjective losses.

In most cases, damages recovered in a malpractice case are exempt from income taxes. The law views this money as making the victim whole again, rather than taxable income. Additionally, an attorney can use certain legal vehicles to make sure the additional funds don't affect Medicaid or Social Security eligibility, such as special needs trusts.

Most attorneys who handle these types of lawsuits do so on a contingency fee basis. That means the patient's family does not pay anything to the attorney out of pocket. Instead, the attorney pays the costs of litigation as the case move forward. When the case is resolved - either through an out-of-court settlement or a judgment at trial - the attorney's fee is a percentage of the recovery. If the case is not resolved in the patient's favor, the attorney does not get paid at all.

Pursuing a malpractice lawsuit is a long process. In addition, there are legal time limits (called the statute of limitations) that apply to these cases, which vary from state to state. The best course of action for any parent who suspects malpractice is to contact an attorney licensed in their jurisdiction for a free legal consultation.