N.Y. Birth Injury Lawyers Provide Guidance
Legal Counsel On Medical Negligence Claims & Birth Injury Lawsuits
The birth of a healthy baby should be one of the most joyous occasions in any parent’s life. However, the anticipation of welcoming a new loved one into the family can turn quickly to anguish if the child sustains an injury or suffers any kind of a medical setback while being delivered. There are well-established rules and procedures medical professionals are supposed to follow during childbirth; tragically, the failure to follow protocols and/or thoroughly monitor the newborn’s vital signs can result in an injury or medical condition that may last a lifetime.
If you have a child who has been harmed during birth due to medical malpractice, our personal injury attorneys can help. If a doctor, nurse, midwife, other health professional, or even a hospital itself has been negligent in any way during the delivery of your baby, you will need experienced legal counsel to navigate the complexities of taking on the medical establishment. Our experience, on staff nurse-attorney and comprehensive understanding of medical negligence claims can level the playing field in a lawsuit against a doctor or hospital. We will work with you to help recover the past and future medical costs resulting from the negligence, and secure fair compensation for the pain and suffering suffered by you and your child.
Frequently Asked Questions about Birth Injuries
Our personal injury lawyers provide answers to some important questions below.
Medical malpractice is the professional negligence of a medical provider. Medical providers are required to abide by a “standard of care”, or in other terms, what the accepted and expected practice is for a medical provider. If a medical provider deviates from or breaches the standard of care, and that deviation caused a serious or permanent injury to you or your baby, a claim may be pursued for medical malpractice.
Birth injury is a broad term encompassing injuries to a baby while in utero, during labor, or during delivery that may be caused by inadequate or inappropriate medical care. A birth defect is a congenital abnormality often inherited or caused by environmental exposure during the development of the baby. While the circumstances of a birth injury should be investigated by an attorney, the failure to diagnose a birth defect, either prior to birth or after birth, may also present issues warranting an investigation by an attorney.
After your child receives the necessary medical care, you should contact a law firm experienced in handling birth injuries. You will then meet with a birth injury lawyer who will assist you. Your lawyer will begin by obtaining all relevant medical records and will contact expert medical providers to review the care that was provided to you and/or your child. In New York, a medical malpractice lawsuit cannot proceed without the support of a medical expert.
Most injuries occur when a doctor, nurse, or other medical provider fails to adequately assess or respond to a condition or complication during a woman’s pregnancy or delivery. The key question is whether the medical provider failed to give you or your baby adequate medical care or medication advice during pregnancy or delivery. If you believe you or your child may have been a victim of a medical error, you should contact a birth injury lawyer right away.
Some of the most common errors that occur during childbirth include: failing to correctly read or interpret fetal monitoring strips, failing to timely perform a c-section, failing to appropriately monitor uterine stimulating drugs like Pitocin, improper prenatal or postnatal care, undiagnosed pre-eclampsia or gestational diabetes, misdiagnosed maternal or fetal distress, inappropriate use or monitoring of medications, or improper use of birth-assisting tools. In order to determine exactly what mistakes may have occurred, a birth injury attorney will need to thoroughly review the relevant medical records and consult with medical experts in the area of maternal fetal medicine.
Potential injuries include brain damage due to a lack of oxygen sometimes called hypoxic ischemic injury (HIE), cerebral palsy, shoulder dystocia, brachial plexus injuries, erb’s palsy, klumpke’s palsy, nerve trauma, spinal cord trauma, facial paralysis, body paralysis, uterine rupture, or post-delivery infections.
It is very common for a woman to build a strong relationship with her OB-GYN and other medical professionals throughout her pregnancy. However, when a doctor makes a serious mistake, you and your family should not have to suffer because of his/her negligence. It is important to consider what happened to you and your child, not only for you and your child but for the safety of future patients. A birth injury can result in a lifetime of medical expenses and other needs. A legal case is the way to secure your child’s future and protect other children from poor care.
In New York, all physicians must carry medical malpractice insurance which provides coverage for instances of medical malpractice up to a certain amount. If damages exceed the medical malpractice coverage, a defendant may be personally liable for the amount in excess.
You should collect everything you have been given either from the hospital or medical staff you worked with. Even if the paperwork does not involve the medical provider responsible for the harm caused, the paperwork may be important to show that your pregnancy and the baby’s health was progressing normally. Additionally, you should write down all of the names of your medical providers and any medical personnel you may have spoken with, as well as any important details you remember about those interactions so you don’t forget. Finally, you have the right to request your medical records and those of your baby. If you have trouble obtaining those records, a birth injury attorney will assist in obtaining these records.
Legal cases go through several distinct phases.
First there is the pre-suit phase, where an attorney will evaluate your case, collect information, request medical records, and review your records with medical experts.
Next, if your case can be supported both medically and legally, papers may be filed in court, signifying the official start of your case in court. At this point, your attorney and the attorneys for each of the defendants will begin making requests to exchange information and eventually conduct depositions, also called “examinations before trial” of each party to the lawsuit and other relevant witnesses. At a deposition, questions are asked by the attorneys and a stenographer types everything that is said.
Once all the necessary information is exchanged a case may be ready for trial and a trial date will be scheduled. During this process, discussions may occur between attorneys regarding whether the case can be resolved before a trial.
Ultimately, this resolution depends on what kind of injury your child has, the kind of documentation supporting your case, and the opinions of medical experts regarding the specific events that occurred in the case.
A jury will consider evidence such as medical records, and testimony of witnesses and expert doctors, who will testify whether your physician’s actions were reasonable or fell below the accepted standard of care. Once the jury considers the evidence and all testimony, they will then consider whether the elements of a medical malpractice claim have been met, and whether the plaintiff mother and baby should prevail.
If a living child suffers a birth injury because of the negligence of a doctor or hospital, the damages awarded can include the following:
- past and future medical expenses
- costs for necessary home modifications
- the physical pain and suffering of the child
- the emotional distress of the child
- future rehabilitation treatments or therapies
- lifelong supportive care
- costs for equipment needed to care for the child
A parent can also receive compensation for lost wages should the parent not be able to work any longer in order to provide specialized care to the child. Additionally, a mother may recover damages for emotional distress, even in the absence of an independent injury, if medical malpractice results in miscarriage or stillbirth.
Lawsuits involving personal injuries are typically handled on a contingency fee basis, meaning your lawyer will not get paid unless you receive a settlement before trial or a verdict in your favor at trial. The fees a lawyer is paid in a successful medical malpractice lawsuit in New York are set by court rules.
The time within which a lawsuit must be commenced is called the statute of limitations. Once the statute of limitations has run out, the injured person will be legally barred from filing a lawsuit based on those injuries. Often, the degree of a child’s injuries may not be immediately apparent to the doctors or family. It may be years until the parents realize the full extent of the harm done by an injury that occurred during childbirth. In New York, if the victim is under the age of 18, he or she has 10 years from the date of the injury to file a lawsuit. Parents can always choose to act on their child’s behalf sooner than ten years after the child’s birth and should be in contact with a birth injury attorney as soon as a birth injury is suspected to ensure no deadlines are missed.
Proceeds from a case involving a child under the age of 18 must be approved by a judge through an Infant Compromise proceeding. The purpose of the judge’s review is to ensure the funds are protected for the child. Funds can be handled in a variety of ways. A family may choose to structure the funds with the assistance of an insurance company who would then provide periodic payments to the child upon reaching a certain age. An annuity structured with an insurance company may allow for some additional investment yield from the funds over time. This is one way to provide for the long-term needs of a disabled child and his or her anticipated future needs. A special-needs trust or qualified settlement trust are also alternative options, as well as upfront cash payments to provide for any immediate needs. An attorney will help you understand your options as well as determine what is the best option for you and your family.
Timeline of a Personal Injury Case
- If injured, when ready, contact a personal injury lawyer to determine if a claim can be pursued on your behalf
- Meet with a lawyer to discuss the incident
- Bring medical records or other relevant documents including an accident report if available
- Your lawyer will help you understand the process of a personal injury case
- Follow the doctors’ advice
- Go to all medical appointments
- Report all symptoms to doctors
- Take photos of injuries
- Tell lawyer anytime a new doctor is seen
- Determine how and why the injury occurred
- Speak with witnesses
- Obtain any investigative reports
- Obtain scene, vehicle and product photos, as applicable
- Obtain medical records and bills
- Consider all possible claims and theories of liability against any potential defendant
- Consult with experts
- Communicate and negotiate with the insurance company
- Obtain a settlement or pursue a lawsuit
- File a summons and complaint prior to the statute of limitations
- Serve the legal documents on the defendants
- Prepare and exchange evidence with the other lawyers in the case
- Conduct depositions of all relevant parties (also called EBTs)
- Defense medical examination conducted
- File motions (written applications) to the court if necessary
- Participate in arbitration or mediation if appropriate
- Determine liens if any
- Settle the case or proceed to trial
- You have the right to a trial by jury or by the judge who will act as both judge and jury
- At a trial, the injured person must prove it was more likely than not that the defendant was negligent and caused injuries
- The judge or jury will listen to all the evidence presented and the arguments by the lawyers, apply the facts to the law, and render a decision
Recent Verdicts & Settlements
Plaintiff, a roofing contractor, suffered a fractured skull, cervical spine fracture and fractured ribs after falling from a roof. The injuries left him with chronic pain and fatigue, limited tolerance for walking, lifting, or carrying and limitations in his hearing and vision.
Plaintiff was injured when a fork from a forklift truck fell on top of his left leg, severely fracturing the tibia and fibula, requiring numerous surgeries and resulting in a permanent, partial loss of use of his leg.
Plaintiff was assaulted outside of a bar in Saratoga and as a result suffered a traumatic brain injury, a fractured skull, brain swelling and brain bleeding, facial contusions and bleeding, as well as lacerations and bruises on his body. He also suffered from short and long term memory deficits and other cognitive deficits.
Federal Employers Liability Act/FELA
Plaintiff suffered a significant back injury while working for CSX.
Plaintiff suffered injuries as a result of negligent monitoring of prescription medication.
Plaintiff, a 49-year-old man, was discharged from the hospital with critically low levels of potassium, which precipitated a fatal arrhythmia at home and subsequently caused his death. His family brought a claim against the hospital for medical negligence and wrongful death.
Plaintiff was an ironworker who was injured when he fell from a ladder, suffering fractures to both elbows resulting in permanent loss of strength and loss of range of motion in both arms. His impairment limited the number and types of employment opportunities and limited his future earning potential.
Plaintiff was a passenger in a vehicle which went off the road and rolled over, causing him to suffer significant permanent injuries, including skull fracture; fractured mandible requiring surgical placement of plates and screws; facial fractures and lacerations; sternal fracture; spinal fractures; lacerations to spleen, liver and lung; multiple rib and toe fractures; tinnitus and hearing loss; post-traumatic stress disorder; facial scarring and numbness.
Plaintiff suffered two dislocated shoulders and a dislocated elbow after he was struck by a vehicle, which negligently swerved onto the shoulder and into the bike lane.
Nursing Home Negligence
An 87-year-old man was discharged from a local hospital on the afternoon of his death and returned to his assisted living facility. His health began to deteriorate throughout that evening; a nurse was told to check on him but never did. Facility staff found him unconscious on the floor in his room later that evening; paramedics were unable to revive him. It was claimed that the facility failed to obtain appropriate medical advice, assistance and treatment.
The infant plaintiff fell from a tractor being operated by a farm employee and was run over by the tractor. The 10-year-old boy suffered a femur fracture requiring surgery, multiple facial fractures requiring surgery, foot and toe fractures and loss of consciousness.
* Prior results do not guarantee future outcomes.
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