When you are pregnant, you hope that your doctor and their team will take the proper care to make sure that your baby is born without harm. Unfortunately, health care providers can make errors that cause birth injuries. If your baby sustained a birth injury during your pregnancy or during or after labor, you may be able to recover damages by filing a birth injury lawsuit. You should consult the Upstate New York birth injury lawyers at DeFrancisco & Falgiatano about whether you have a viable claim. We understand the complexities of birth injury lawsuits, and our experience allows us to determine which strategies are likely to work to recover the damages that your child has suffered. Our attorneys represent people in the areas around Syracuse, Rochester, Buffalo, and Albany.
Birth Injury LawsuitsTo recover damages for your baby’s birth injuries, you will need to establish liability by a preponderance of the evidence. Establishing liability requires you to show that it is more likely than not that your baby was owed a professional duty of care by the defendant, but they deviated from the professional standard of care and caused your baby’s injuries.
In New York, the professional standard of care is determined by looking at the accepted medical practices of health care providers in the same geographic area and specialty when addressing the same or similar circumstances. In other words, a jury would need to understand what a reasonably prudent obstetrician-gynecologist or nurse in Upstate New York would have done when faced with a certain obstetric situation and a patient with your medical profile.
The professional standard of care may vary based on an expectant mother’s unique risk factors. For example, if a pregnant mother has previously had preeclampsia, she is at greater risk of having it again, and her health care provider may take special care to monitor her. If her blood pressure goes up to certain levels, and there are proteins in her urine, a prudent doctor in Upstate New York may require bedrest and a planned early delivery, since preeclampsia left untreated can result in birth injuries. If her child is born with cerebral palsy as a result of her obstetrician-gynecologist ignoring the risk factors, a birth injury attorney in Upstate New York may be able to hold the obstetrician-gynecologist liable.
Certificate of MeritIt is critical to have a patient’s medical records reviewed by an expert in the same specialty as the potential defendant. In birth injury cases, the expert is often a board-certified obstetrician-gynecologist. Under New York Civil Practice Law & Rules, Article 30 section 3012-a, in most cases, we will need to file a certificate of merit with the complaint, stating that we have reviewed the facts and consulted at least one licensed doctor who we reasonably believe is knowledgeable about the relevant issues involved and have concluded based on their review that there is a reasonable basis to commence an action. Alternatively, we will need to certify that we were not able to get the consultation required due to a time limit that would bar the lawsuit. In that case, we would need to either file a certificate within 90 days of filing the complaint, or certify that we made three separate good-faith efforts to get the certificate but could not.
Statute of LimitationsThere are a variety of statute of limitations when it comes to injuries to children in New York. Because children are unable to make decisions themselves, the law has afforded a longer statute of limitations as compared to adults. For medical malpractice cases, such as a birth injuries, the statute of limitations for the child, in general, is tolled for 10 years pursuant to the Civil Practice Law and Rules (CPLR). We say, in general, because there are other factors that could change the statute for the case. For example, if the delivery occurred at a facility that was owned and/or run by a municipality, then a Notice of Claim would need to be filed to keep the statute open for a case against that medical facility where the child was born. For cases against physicians, certified nurse midwifes, or other medical providers that are private, the statute is tolled for 10 years whether the potential negligent care was prenatal, occurred during the delivery or happened at any time after the child was born. If you are wondering if a statute is still open for your child, or a loved one, call us for the answer.
DamagesIf our Upstate New York birth injury attorneys can establish liability, we may be able to recover compensatory damages. These are damages intended to put your baby back in the position in which they would have been had there been no injury. Depending on the nature of the birth injuries, compensatory damages can include economic losses, such as medical bills, rehabilitation, therapy, medication, assistive equipment, around-the-clock care, and out-of-pocket costs. They can also include non-economic losses that flow from the birth injury, such as mental anguish, pain and suffering, loss of enjoyment of life, and lost earning capacity. Sometimes actionable birth injuries lead to a baby’s death. In that case, we may be able to recover wrongful death damages.
Consult a Seasoned Medical Malpractice AttorneyDue to the special requirements associated with medical malpractice lawsuits, it can be challenging to pursue damages for birth injuries. It is vital to retain a seasoned attorney who understands how to mount this type of case and how to convey your baby’s story to a jury. If your baby has a birth injury that may have resulted from medical malpractice in Upstate New York, consult the experienced birth injury lawyers at DeFrancisco & Falgiatano. Contact us at 833-200-2000 or via our online form.