Birth Injuries

Parents expect exemplary care during the childbirth process. If a doctor or other medical professional has acted negligently and caused your child to suffer from an injury that could have otherwise been prevented, the personal injury lawyers at Caesar & Napoli, will represent you in your medical malpractice claim. We take a highly thorough approach to investigating the cause of the incident, gathering documentation and proving that the standard of care was not provided.

Lack Of Attention Can Lead To A Lawsuit

A fetus must be continuously monitored during the birthing process. Failure to monitor the fetus and take initiative when the fetus is in distress can cause lifelong birth injuries that affect the newborn indefinitely. Our medical malpractice lawyers stand ready to protect your rights and can take on even the most complicated injury cases in Queens, Manhattan and Brooklyn, involving:

• Cerebral palsy
• Failure to perform a C-section
• Shoulder dystocia
• Spina bifida
• Erb’s palsy
• Brain damage from oxygen deprivation or lack of blood flow

Decades Of Experience Fighting Delivery Room Errors

At Caesar & Napoli, our New York birth injury lawyers have been handling complex medical malpractice cases for more than 30 years. Given our experience, we know what resources we may need to call upon and what medical documentation needs to be used in the case. We are highly familiar with the legal procedures and timelines involved in a birth injury case, allowing us to prepare in the most effective manner from the start.

A Birth Injury Is Not the Same as a Birth Defect

The two are often confused, and the difference matters. A birth defect forms during pregnancy, from genetics or from an exposure, and in most cases it is not the result of anyone’s error. A birth injury happens during labor, delivery or the period immediately afterward. Some birth injuries occur despite entirely appropriate care. Others happen because something was done, or not done, that should have been.

A diagnosis on its own does not tell you which of those you are looking at. Cerebral palsy, for example, has many causes, and only some of them involve a departure from accepted medical practice. The answer comes from the record of what happened in the delivery room, not from the label given later.

What the Records Usually Show

A birth injury case starts with documents that already exist. The ones that carry the most weight are these.

• The fetal monitoring strips, and whether signs of distress were recognized and acted on
• The timing of the decision to perform a cesarean section, and how long the delivery took after it
• Apgar scores and cord blood gas results in the minutes after birth
• Nursing notes, which often record what was happening before the physician was called
• Imaging performed in the first days of life
• The mother’s prenatal record, including anything flagged and not followed up

Hospitals hold these records, and families are entitled to a complete copy. Requesting them early is worth doing even if no decision has been made about a claim. What the documents cannot do on their own is answer the question. That takes a physician in the relevant specialty reading them against the standard of care.

Deadlines for a Claim on Behalf of a Child

New York treats these deadlines differently from other injury claims, and more than one clock runs at once.

• The child’s claim. Medical malpractice in New York normally has to be brought within two years and six months. Because the injured person is a child, that period is extended, but the extension is capped. A claim on behalf of a child cannot be brought more than ten years after the event.
• The parents’ own claim. A parent’s claim for the cost of the child’s care is separate, and it is not extended by the child’s age. It generally runs on the same two year and six month period and expires long before the child’s does.
• A public hospital. If the birth took place at a city or state facility, a notice of claim is normally required within ninety days, and the period to start the lawsuit is shorter than the ordinary one.

Because the parents’ claim and the notice requirement move so much faster than the child’s, waiting for a clearer diagnosis can quietly cost part of the case. A date already passed is still worth asking about. A court can permit a late notice of claim in some circumstances, and that relief is more often available where the injured person is a child, although it is discretionary rather than automatic.

What a Birth Injury Claim Has to Cover

Where an injury is permanent, the claim is not about the hospital stay. It is about the whole of that child’s life. That means therapy, equipment, adapted housing, special education, attendant care, and the earning capacity the child will never have. A life care plan prepared with treating specialists sets out that need year by year, and our page on assessing lifetime costs explains how those figures are built. Where the outcome is a catastrophic injury, that plan sits at the center of the case.

Common Questions

Does a cerebral palsy diagnosis mean there was malpractice?

No. The answer comes from reading the delivery record against the accepted standard of care, which is why a medical review comes before any opinion about a claim.

How would we know something went wrong?

Families usually do not, at the time. Signs that prompt a review include an emergency cesarean after a long period of monitoring, a low Apgar score, resuscitation at birth, admission to intensive care, seizures in the first days, or a developmental delay identified later.

How long do we have to bring a claim?

The child’s claim can be brought up to ten years after the event. The parents’ own claim for the cost of care generally runs on two years and six months and is not extended by the child’s age. If the birth took place at a public hospital, a notice of claim may be due within ninety days. Those three dates are far apart, which is why they are worth checking together.

What does a review involve for the family?

It involves requesting the complete hospital record and having it read by a physician in the relevant specialty. Nothing is filed at that stage, and the review answers a question rather than starting a case. The cost of that review is normally carried by the firm as a case expense rather than billed to the family, and the written retainer sets out how expenses are handled.

How is a settlement handled when the injured person is a child?

A court has to approve it. New York requires a judge to review any settlement on behalf of a child, and the funds are protected rather than paid out directly.

Will this affect the child’s benefits?

It can, if nothing is done about it. Where a child receives means-tested benefits, a special needs trust is normally put in place as part of resolving the case, so that the recovery is held without displacing what the child already receives.

Discuss Your Case With A Personal Injury Lawyer

At Caesar & Napoli, we do not charge for initial consultations. To schedule a meeting with one of our attorneys to discuss your injury case, please contact us at (888) 235-6766. Most personal injury cases are handled on a no-win, no-fee basis. We are not paid attorney’s fees unless we win a recovery for your case.