“How long does a typical birth injury case take?”
It’s one of the first questions asked when a parent is deciding whether to sue for their child’s birth injury and pursuing a medical malpractice case against their medical providers.
It’s an important question too. A few months or a few years can make an incredible difference, especially as a parent of an infant or young child.
The first thing to know is that there is no such thing as a “typical” birth injury lawsuit.
Each individual case is unique, and we don’t just say that because it sounds nice. Birth injury lawsuits are inherently complicated and incredibly specific.
With so many different types of birth injuries and medical mistakes, one mother’s experience is going to differ greatly from another.
The answer you’ll hear from a lot of law firms is some variation of 2-4 years.
While it’s true that most birth injury lawsuits fall into that general time frame, it’s not really helpful information.
Here, we break down the process of a birth injury lawsuit and explain how long each step takes.
Step 1: Filing a Birth Injury Claim
(A few days – a few months)
A birth injury lawsuit, like any lawsuit, starts with an initial claim. This claim states the reasons for your lawsuit and the reasons that such a lawsuit is justified.
You can submit an injury claim on your own, but most people have their lawyer file their claim.
We recommend having a birth injury lawyer do this initial step for you, since you may not be familiar with the process and it can help keep a sense of continuity in your case.
Filing a claim is the easiest part of a birth injury lawsuit, and it only takes as long as you need to put your claim together. This can be expedited with the help of a birth injury lawyer too.
Certificate of Merit
In order to file a case under New York State Law, however, you need a certificate of merit for a medical malpractice case. This rule applies to birth injury cases too.
A certificate of merit is a document stating that your lawyer consulted with a medical expert. That medical expert looks at your case and certifies that there is a reasonable basis for you to sue.
A certificate of merit should be submitted with your birth injury claim.
In some cases, like if it is close to the expiration date of the statute of limitations on birth injury, a 90 day extension can be granted to you. This way, you can submit the claim before the deadline and get a certificate of merit later.
The earlier you get in contact with a birth injury lawyer, the sooner this part of the process can be done and over with. This means that if you want this step to be quicker, give us a call today!
Step 2: Waiting for a Response
Once your claim is submitted with a certificate of merit, it is sent to the defendant.
The defendant typically has 30 days to respond to your claim.
The defendant’s response will be one of two options:
- They can accept the claim and enter settlement negotiations,
- Or they can deny your claim, which means you’ll need to go to court to fight for compensation.
During these 30 days, while the defendant is deciding what to do, a good birth injury lawyer will go over your case with you.
We’ll begin working on your case, gathering all available evidence like medical records, testimonies, photos, and prior complaints against the physician or medical professional that injured your child.
Step 3: Negotiations or Court
(A few weeks – a year or more)
Birth Injury Settlement Negotiations
If the defendant accepts your claim, you will go into settlement negotiations with your birth injury lawyer.
Most birth injury claims actually achieve settlement without the need for the plaintiff, you, to go to court.
If you bring a case forward alone, settlement negotiations will take barely any time at all, but obviously there’s a catch.
If you try to settle a birth injury claim without legal representation, the defendant will have all the leverage to set compensation. In layman’s terms, you’ll be ripped off and never have a chance to sue again.
With legal representation, you will have equal or greater leverage than your defendant.
Our birth injury attorneys can defend your interests in a settlement and get you the most compensation possible.
Because you’re negotiating for a better payout, however, your defendant will haggle, and this process will be drawn out a little longer than if you settled for the bare minimum.
Representation from an experienced attorney can prevent this process from dragging out too long though, saving you time and money – though we never charge hourly fees and you only pay us if you get compensation from your claim.
A birth injury settlement could result in payment for all your child’s medical expenses, physical therapy costs, special education costs, and other related damages.
A settlement is often the easiest way to resolve your birth injury case; However, it may not be feasible if the defendant is unwilling to negotiate an acceptable amount, or if the defendant denies your claim from the beginning.
Birth Injury Court Trial
If this happens, you will need to go to trial to get the compensation you deserve. This can further lengthen your birth injury case, but if your claim is denied, it is the only way to get compensation for your child’s injuries.
The court process starts with the discovery phase. This involves research, gathering evidence, interviewing witnesses and other individuals, and much more. This can take several months, and both you and the defendant will be undergoing this process.
Thankfully, you will already be a step ahead, as while the defendant prepares to respond to your claim, we are already working on this step for you.
Once this is over, your trial will begin. A judge and/or a jury will listen to both you and the defendant’s perspectives and come to a decision on your case. The trial itself will only take a few days at most, except under rare circumstances, like a mistrial for example.
Birth Injury Appeals
Sometimes, a birth injury case will be appealed, meaning the court process will begin all over again.
In many cases, this is what makes a birth injury case drag out longer than necessary. If your case is not appealed, you won’t have to worry about a longer case.
An appeal can happen for many reasons, and both you and the defendant have the right to appeal a case.
If the defendant is unsatisfied with the judge’s decision, they can appeal. This might happen if you are awarded a large amount of money by a judge. It’s incredibly frustrating, and sometimes it may feel completely unfair.
However, in the reverse scenario, if you are unsatisfied with the judge’s decision on your case, you can appeal and argue for a better decision.
We’re just as prepared to fight appeals as we are to represent you the first time around, so don’t hesitate if you think you deserve better from the court.
All in all, an appeal will take as long as the original discovery and trial, sometimes doubling the length of your lawsuit or more.
How a Birth Injury Attorney at Merson Law Can Help You
We hope you leave this article with a better understanding of birth injury cases and how long they can take.
While you may have been looking for a concise answer, the truth is that birth injury cases are incredibly complex and no specific amount of time will be accurate to every individual case.
For a more precise estimate on the length of time your case will take, we’ll need to know the specifics of your child’s birth injury or injuries.
You can fill out our contact form at any time, or give us a call today for an initial consultation.
We wish you and your child the best, and we look forward to helping you in every way we can on this journey.