Birth Injury Settlement

Fact Checked

A birth injury settlement is monetary compensation for a child injured by medical malpractice during birth. Work with an experienced medical malpractice attorney for the best chance of getting a settlement for your child’s birth injury. They will investigate the case, find evidence, and negotiate with the defendants for a fair settlement to provide your child with lifelong care.

What Is a Birth Injury Settlement?

A settlement is a monetary award after an agreement between the plaintiff and defendant in a medical malpractice lawsuit.

One purpose of a birth injury settlement is to award compensation to the victim of this type of medical malpractice. Another goal is to legally recognize that a medical professional or medical institution did something wrong.

The settlement amount covers the costs incurred by a family with a child suffering from a birth injury. The settlement covers tangible costs, from medical bills to lost wages, also known as compensatory damages.

Birth Injuries and Medical Malpractice

A family may receive a birth injury settlement after the baby’s injuries are determined to be caused by medical malpractice. A doctor, for instance, may make the wrong decision about performing a Cesarean section, leading to a complicated delivery that harms the baby.

Another example of a negligent birth injury includes excessive force using instruments like vacuum extractors or forceps that can break bones and cause brain damage.[1]

Other examples include failure to diagnose an illness in the mother that impacts the baby’s health, making a mistake in diagnosing a condition that the child is born with, and then failing to treat it adequately or at all.

For example, a child born with jaundice needs immediate treatment to prevent brain damage. Failure to recognize it can have severe consequences.[2]

Can I Get a Settlement for My Child’s Birth Injury?

If your child suffered a birth injury due to a medical professional’s negligence, you might be eligible for a settlement. Cerebral palsy is a common consequence of birth injuries, but there are many other conditions and disabilities covered in birth injury settlements:  

• Brachial plexus injuries
• Erb’s palsy
• Klumpke’s palsy
• Shoulder dystocia
• Nerve damage
• Spinal cord damage
• Brain damage
• Spina bifida
• Persistent pulmonary hypertension
• Forceps and vacuum extractor injuries
• Newborn jaundice
• Wrongful death

What Is the Average Amount for a Birth Injury Settlement?

Settlements are usually less than jury verdicts. For medical malpractice claims made on behalf of a child younger than one year old, the average payout is about $1 million.[3]

How Much Can My Child Get for a Birth Injury Settlement?

The average helps explain what is possible in a birth injury settlement, but every case is different. Settlement amounts vary widely. Your lawyer can give you a reasonable estimate. Birth injury settlement amounts are calculated based on several factors: 

• The severity of the disability
• The degree of the defendant’s negligence
• Current medical bills
• Current and expected future medical expenses
• Estimates for the costs of lifelong care for a disabled child
• Lost wages if parents stay home to provide care
• Loss of independence for the child
• Emotional and physical pain and suffering

What if My State Caps Damages for Birth Injury Lawsuits?

Many states cap, or limit damages, in medical malpractice lawsuits. These caps limit the amount of damages a plaintiff can recover from defendants. The caps apply only to non-economic damages, such as pain and suffering.

If your state has a damages cap, it does not limit how much you can recover for expenses like medical bills. 

Caps don’t strictly apply to settlements; they only apply to jury verdicts. However, the defendants’ lawyers will use the existence of a cap to try to reduce the settlement amount during negotiations.

How to Get a Birth Injury Settlement

You should first get a good lawyer to represent you for the best chance of getting a birth injury settlement.

Choose a lawyer with expertise in medical malpractice lawyer who specializes in birth injury cases. A qualified lawyer or legal team should have the experience and knowledge to make a strong case.

Once you have selected the right lawyer, your legal team will do most of the work for you.

However, you should keep records of all expenses related to your child’s condition, including medical appointments, travel costs to the appointments, medications, treatments, therapy, and any medical or adaptive equipment.

You may also need to help your lawyer by describing what happened when your child was born. Your lawyer will investigate the incident and collect evidence, but your memory of the events is crucial.

What Are the Steps in Getting a Birth Injury Settlement?

Your lawyer will start the process by filing a birth injury lawsuit. The filing provides information about the case and notifies the defendants, who must then respond. From there, the process follows these steps:

1. Discovery. With the lawsuit officially filed, both sides enter a discovery period. Your lawyers and the defendants’ lawyers investigate, gather evidence, hold depositions, and build their cases.

2. Settlement negotiations. Lawyers from both sides negotiate for a settlement amount. Your lawyer will use information from discovery to push the defendants to provide you and your child with fair compensation.

3. Trial. If negotiations fail, your lawyer will take your case to trial. A jury decides if the defendants owe you compensation, and if so, how much.

Most birth injury lawsuits end in a settlement. Defendants prefer settlements because they are less costly. For the plaintiffs, a settlement guarantees compensation and is quicker than a trial.

Is There a Time Limit on Seeking a Settlement?

It’s essential to file a lawsuit seeking a settlement after your child’s birth as soon as possible. Statutes of limitations in each state vary and restrict the time you have to file.

Examples of Substantial Birth Injury Settlements

While every case is different, examples of successful birth injury claims help parents see what might be possible for their case.

Delayed C-Section

In 1999, a child was born with severe birth injuries at the Monmouth Medical Center in New Jersey. According to court documents, an attending obstetrician, two nurses, and obstetric residents failed to notice warning signs that the baby was in severe distress despite fetal monitoring strips indicating that there were complications.

Instead of performing a timely Cesarean section, the healthcare professionals let the mother go through labor for 10 hours, her birth injury lawyers said. While the mother was in labor, the baby was deprived of oxygen, leading to severe brain damage.

The plaintiffs’ birth injury attorneys ultimately helped them obtain a $6.5 million settlement from the responsible parties.

Failure to Act on Fetal Distress