New York Birth Injury Law

The birth of a child should be an exciting, momentous event in the lives of the parents. Unfortunately, however, tragedy sometimes intervenes if the medical professionals handling the childbirth process fail to act according to the standards of their profession. For example, obstetricians and gynecologists may fail to diagnose a condition that they should have recognized. In other instances, they may fail to promptly treat a complication that arises, or they may fail to take proper care when using surgical instruments. The results can be devastating and far-reaching for both the child and their parents, sometimes resulting in disabilities that require lifelong care. Families affected by a birth injury in a New York hospital or other medical practice should consult a medical malpractice attorney for guidance on whether they have a claim.

The legal process in these cases is more complex than in many ordinary personal injury cases, such as those arising from car accidents, and certain specific rules may apply. To prove the liability of a health care provider, a victim’s attorney would need to show that they did not meet the standard of care that would apply to an obstetrician, gynecologist, or other specialist treating a similarly situated patient in similar circumstances. Articulating this professional standard of care can be a complex, technical process because of the sophistication of the medical profession. Ordinary people, such as members of a jury, would not necessarily understand it on their own. Therefore, an attorney usually will need to retain an expert witness to explain what the standard of care would be and how the defendant’s actions failed to meet it. (There are certain situations in which an expert is not required because the defendant’s negligence is obvious, but these are uncommon.)

The plaintiff’s expert witness also would need to describe how the defendant’s negligence led to the injuries that the child suffered. In other words, the condition must not have been a birth defect that could not have been avoided. Instead, the baby would have been healthy (or relatively healthy) if not for specific actions by the defendant.

Families who prevail in a birth injury case may be able to obtain a wide range of damages that help them cope with the burdens on the child and their parents. A child may endure significant pain and suffering and emotional distress because of their condition, and these tragic consequences may persist throughout their life. In addition to these non-economic damages, the family usually can recover compensation for the costs of the child’s past and future treatment. A child may require regular therapy, future surgical procedures, psychological counseling, and special educational assistance, among other needs. As long as the cost can be tied to the birth injury and shown to be reasonably quantifiable, it can be compensated.

What happens if a birth injury is not immediately obvious but only manifests over a period of months or years after the birth? New York has a strict statute of limitations for medical malpractice, which lasts for two and a half years, but there is an exception that is often relevant in birth injury cases. When a child is the victim of an incident of medical malpractice, the statute extends for 10 years after the malpractice occurred or until the child turns 28, whichever comes sooner.

Another important procedural requirement that applies to birth injury and other medical malpractice cases is the certificate of merit. The plaintiff’s lawyer must provide this certificate with the lawsuit or within 90 days of filing it. The certificate will state that the lawyer has reviewed the case and consulted with at least one licensed medical professional, and the lawyer believes that there is a reasonable basis for bringing the case based on this consultation. (If the lawyer makes three good-faith attempts to consult with three different physicians but cannot comply with the consultation requirement, they can file a certificate of merit as well.) This requirement does not apply if the plaintiff files the lawsuit without an attorney. However, the plaintiff probably still will need to retain an expert eventually to prove the case on its merits.

While some states impose caps on damages awards in medical malpractice cases such as birth injury claims, New York is not one of those states. A child and their parents can recover the full amount of damages that their attorney can prove.

Related New York Personal Injury Pages: Car Accidents, Construction Accidents, Motorcycle Accidents, Truck Accidents, Bronx Car Accidents

Last updated July 2018