The Birth Injury Legal Process

What is the process of a birth injury medical malpractice case for a child?

The filing and litigation of a birth injury or medical malpractice case is complex and typically takes several years to accomplish.  All the following will occur in any potential case:

  1. Initial Interview: Our staff will speak with you by phone to do an intake interview and gather information about your claim to see if we can be of assistance.
  2. Medical Records Requests: Initial medical records are requested and obtained for review. Obtaining records on average takes one to three months.
  3. Investigation & Expert Support: Initial review of your case by our nurses and attorneys will be done after obtaining all initial relevant records. If, based on records, our nurses and attorneys believe there is a violation of the standard of care, your records are sent to expert medical providers to obtain their opinion as to whether the care provided was inappropriate.
  4. Service of a Demand or Notice: After expert support establishing negligence is obtained, then a demand letter or Notice of Intent to File Suit can be served on the negligent caregivers by mail. Once a Notice of Intent to File Suit is served, there is waiting period under law, up to six months, before your case can be filed in a court. Sometimes negligent caregivers may elect to discuss resolution of the case during the time period before suit is filed in court.
  5. Filing Your Case: To file a case in court, a document called a “Complaint” is filed in court and then served on the negligent caregivers. The injured party seeking recovery and support is known as the “Plaintiff” and the negligent caregivers being served are known as the “Defendants.” Along with your Complaint, affidavits signed by experts stating the detailed negligence of the caregivers are also filed. Once your Complaint is filed in court, then the Defendants will file a document called an “Answer” to the Complaint typically within 42 days after service.
  6. Discovery: After your case is filed, a period of discovery in the case begins – this is a period of exchanging information between the parties (plaintiff and defendant) in the case.

Both sides will exchange written questions seeking information, documents and other records, these are often known legally as “Interrogatories,” “Requests for Production,” and “Requests for Admission.”

Also during the discovery phase, the parties will also take depositions of witnesses relevant to the issues in the case.  This includes depositions of the plaintiffs, defendants and expert witnesses for both sides. Medical examinations by experts and depositions of those experts may also take place.

  1. Facilitation, Mediation, Case Evaluation: Once the discovery phase of the case closes, then the case may go to a facilitator or mediator (typically a neutral attorney) or a panel of attorneys (known as case evaluation) to negotiate between the parties and/or to put a monetary value on the case to attempt to achieve settlement of the case before trial. Settlement of a case occurs only when defendants agree to pay an amount to the plaintiff, which the plaintiff choose to accept in exchange for release of the claims filed in court. The plaintiff always has discretion whether to accept or reject a proposed settlement offered by a defendant.
  2. Trial: If a case does not resolve through settlement, then the plaintiff has a right to a trial. If it is a jury trial, the attorneys for both plaintiff and defendants will pick a jury, and then each will give opening arguments. If it is a bench trial, then the judge will sit as the fact-finder in place of the jury. After opening arguments, the plaintiff goes first in presenting the case through fact witnesses and experts.  After the plaintiff rests their case, the defense attorneys present their case.  In the end, attorneys for both sides give closing arguments, and then the jury or judge deliberates to reach a verdict in the case.

What will my involvement be in pursuing a birth injury medical malpractice case for my child?

We are here to work for you.  We want your focus to be on caring for your child and family, while we focus on protecting your rights. Your most important involvement in your child’s case is to keep us updated as to your child’s progress, medical providers and therapies. We will always help you obtain all relevant records and any information necessary for your case.

Once a case is filed on your child’s behalf, we will assist you with anything during the litigation that you need to take part in.  Yourself and any family members that have information related to the case will likely be deposed, i.e. asked questions by attorneys for the defendants. You will also be asked to respond to written questions during the discovery phase of the case. You and your child might have to be present for expert examinations related to the case. You also will need to be present for all settlement conferences and facilitation/mediation related to the case. Lastly, you will need to be present for trial when needed.

If you and your family believe that you may have been injured as the result of medical malpractice, please give us a call at 800-366-8653 so that we may begin the process of helping you find justice. 

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