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A birth injury settlement is monetary compensation a negligent health care provider agrees to pay a defendant, the parent, or the family of the injured child. To receive a settlement for your child’s birth injury, work with an experienced medical malpractice attorney. They will investigate the case, find evidence, and give you the best chance of getting a fair settlement.
Birth Injuries and Medical Malpractice
A family may receive a birth injury settlement after the baby’s injuries are determined to be caused by medical malpractice. A doctor, for instance, may make the wrong decision about performing a Cesarean section, leading to a complicated delivery that harms the baby.
Another example of a negligent birth injury includes excessive force using instruments like vacuum extractors or forceps that can break bones and cause brain damage.
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Other examples include failure to diagnose an illness in the mother that impacts the baby’s health, making a mistake in diagnosing a condition that the child is born with, and then failing to treat it adequately or at all.
What Is a Birth Injury Settlement?
A settlement is a monetary award after an agreement between both the plaintiff and defendant in a medical malpractice lawsuit.
One purpose of a birth injury settlement is to award damages to the victim. Another goal is to legally recognize that a medical professional or medical institution did something wrong.
The settlement amount covers the costs incurred by a family with a child suffering from a birth injury. From medical bills to lost wages, the settlement covers tangible costs, also known as compensatory damages.
Can I Get a Settlement for My Child’s Birth Injury?
If your child suffered a birth injury due to a medical professional’s negligence, you might be eligible for a settlement. Cerebral palsy is the most common birth injury, but there are many others covered in birth injury settlements:
- Brachial plexus injuries
- Erb’s palsy
- Klumpke’s palsy
- Shoulder dystocia
- Nerve damage
- Spinal cord damage
- Brain damage
- Spina bifida
- Persistent pulmonary hypertension
- Forceps and vacuum extractor injuries
- Newborn jaundice
- Wrongful death
What Is the Average Amount for a Birth Injury Settlement?
Settlements are usually less than jury verdicts. For medical malpractice claims made on behalf of a child younger than one year old, the average payout is about $1 million.
How Much Can My Child Get for a Birth Injury Settlement?
The average is useful for providing an idea of what is possible in a birth injury settlement, but every case is different. Settlements amounts vary widely. Your lawyer can give you a reasonable estimate. Birth injury settlement amounts are calculated based on several factors:
- The severity of the disability
- The degree of the defendants’ negligence
- Current medical bills
- Current and expected future medical expenses
- Estimates for the costs of lifelong care for a disabled child
- Lost wages if parents stay home to provide care
- Loss of independence for the child
- Emotional and physical pain and suffering
What if My State Caps Damages for Birth Injury Lawsuits?
Many states have damages caps on medical malpractice lawsuits. This limits the amount of damages a plaintiff can recover from defendants. It applies only to non-economic damages, things like pain and suffering.
If your state has a damages cap, it does not limit how much you can recover for actual expenses, like medical bills.
Caps don’t strictly apply to settlements, only to jury verdicts. However, the defendants’ lawyers will use the existence of a cap to try to reduce the settlement amount during negotiations.
How to Get a Birth Injury Settlement
The first thing you should do to have the best chances for a birth injury settlement is to get a good lawyer to represent you. Choose a lawyer with expertise in medical malpractice lawyer who specializes in birth injury cases. A qualified lawyer or legal team should have the experience and knowledge you need to make a strong case.
Once you have selected the right lawyer, your legal team will do most of the work for you.
However, you should keep records of all expenses related to your child’s condition, including medical appointments, travel costs to the appointments, medications, treatments, therapy, and any medical or adaptive equipment.
You may also need to help your lawyer by describing what happened when your child was born. Your lawyer will investigate the incident and collect evidence, but your memory of the events is crucial.
What Are the Steps in Getting a Birth Injury Settlement?
Your lawyer will start the process by filing a birth injury lawsuit. The filing provides information about the case and notifies the defendants, who must then respond. From there, the process follows these steps:
1. Discovery. With the lawsuit officially filed, both sides enter a discovery period. Your lawyers, and the defendants’ lawyers, investigate, gather evidence, hold depositions, and build their cases.
2. Settlement negotiations. Lawyers from both sides negotiate for a settlement amount. Your lawyer will use information from discovery to push the defendants to provide you and your child with fair compensation.
3. Trial. If negotiations fail, your lawyer will take your case to trial. A jury decides if the defendants owe you compensation, and if so, how much.
Most birth injury lawsuits end in a settlement. Defendants prefer settlements because they are less costly. For the plaintiffs, a settlement is guaranteed compensation and is quicker than a trial.
Is There a Time Limit on Seeking a Settlement?
It’s essential to file a lawsuit seeking a settlement as soon as possible after your child’s birth. Statutes of limitations in each state vary and restrict the time you have to file.
Examples of Substantial Birth Injury Settlements
In 1999, a child was born with severe birth injuries at the Monmouth Medical Center in New Jersey. According to court documents, an attending obstetrician, two nurses, and obstetric residents failed to notice warning signs that the baby was in severe distress, despite fetal monitoring strips indicating that there were complications.
Instead of performing a timely Cesarean section, the healthcare professionals let the mother go through labor for 10 hours, her birth injury lawyers said. While the mother was in labor, the baby was deprived of oxygen, leading to severe brain damage.
The plaintiffs’ birth injury attorneys ultimately helped them obtain a $6.5 million settlement from the responsible parties.
A similar incident took place in 2006 at the Salina Regional Health Center in Salina, Kansas. Court documents indicate that an attending physician and nurses failed to detect an infant girl’s distress from umbilical cord compression.
Dr. David Prendergast, the on-call physician, had not met the infant, Adriane, until 7 a.m., hours after fetal monitoring showed distress. The doctor ended up rupturing the baby’s membrane, which subsequently decelerated her heart rate.
The baby’s fetal monitoring machine beeped for around 15 minutes afterward, but the doctor and nurses didn’t take action. According to court documents, each time the monitor beeped, someone muted it at the nurse’s station.
The delay ultimately led to Adriane developing hypoxic-ischemic encephalopathy due to a lack of oxygen. The little girl also developed cerebral palsy. The mother’s birth injuries attorneys negotiated a $4.2 million settlement with the defendants.
If you have a child injured during birth and you believe it was caused by medical negligence, you have the legal right to seek justice. Be sure to choose the right legal team and act quickly.
Your lawyer can help guide you and give you the best chance of winning the money that your child needs.
- Birth Injury - Health Encyclopedia - University of Rochester Medical Center. (n.d.). Welcome to URMC - Rochester, NY - University of Rochester Medical Center.
Retrieved from: https://www.urmc.rochester.edu/encyclopedia/content.aspx?ContentTypeID=90&ContentID=P02340
- Neurological Neonatal Birth Injuries: A Literature Review. (n.d.). PubMed Central (PMC).
Retrieved from: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5811307/
- Ranum, D. (2019). Study of Malpractice Claims Involving Children. The Doctors Company.
Retrieved from: https://www.thedoctors.com/articles/study-of-malpractice-claims-involving-children/