With all the anticipation that precedes a child’s birth, it can be heartbreaking to know they’ve started life with a debilitating injury. A birth injury is a very serious matter, regardless of how severe it is, and coping with it can be very difficult for all involved.
With all the pain and stress, filing a lawsuit may be the last item on a parent’s mind, but it can actually help ease the process in certain circumstances. It’s worthwhile to know when filing a birth injury lawsuit is appropriate.
Birth Injury Vs. Birth Defect
When determining whether to sue for a birth injury, it’s first important to distinguish between a birth injury and a birth defect. They can each be defined as follows:
- A birth defect occurs while the infant is still in the womb. These are frequently genetic, and they are generally not attributable to medical malpractice.
- A birth injury occurs during labor or the delivery process. It may result from unavoidable complications during childbirth, or it could be caused by improper delivery methods or other forms of malpractice.
This distinction is critical. If a newborn has a birth defect, there is no cause for a lawsuit. Birth injuries, on the other hand, may well be the result of medical malpractice.
Even if your newborn sustained a birth injury, that doesn’t necessarily mean you have a case. As mentioned, many birth injuries are the result of complications during labor or delivery. These may occur regardless of the doctor’s competency, and therefore could preclude a lawsuit.
Statute of Limitations on Birth Injuries
Another factor to consider is the statute of limitations. Illinois is quite generous in this area in terms of the law, allowing up to eight years to file a lawsuit after the injury occurred (or after it was discovered). In cases where the injury resulted in a disability, the time period doesn’t start until after the disability is removed. In any of these cases, it must have occurred while the child was under 18 years of age.
Under no circumstances is a lawsuit to be made after the child turns 22. Even with this limitation, there is a great deal of opportunity for a lawsuit to be filed, especially considering that the normal statute of limitations on medical malpractice is only two years.
Potential Challenges of Birth Injury Lawsuits
A final factor to consider when filing a birth injury lawsuit is what challenges may arise. The exact level of difficulty in pursuing a lawsuit depends on the individual case, but there are some factors that remain fairly consistent.
For instance, a doctor’s defense lawyer may claim that an injury was actually a defect, thereby undermining the case. This is overcome by gathering as much evidence as possible while also securing a testimony from an expert witness.
Another challenge arises when it’s not completely clear if a birth injury was avoidable. Whether a doctor should have been able to prevent it is sometimes a hazy area that again necessitates an expert witness.
A skilled birth injury attorney will know how to handle these challenges and give you the counsel you need to secure damages for your child’s injury. For more information, contact Hart David Carson LLP today.