Although each birth injury lawsuit is unique, most share the same general progression. Knowing what to expect can make you feel more at ease with what is to come. Preparing for a birth injury lawsuit as a parent can feel daunting. With the right lawyer by your side, however, you can navigate the legal process with confidence.
Filing the Claim
To start the birth injury lawsuit, you or your attorney must file the initial injury claim. You will file with the courts in the county where the incident occurred. In Chicago, for example, you will file your claim with the Circuit Court of Cook County. Filing your claim takes completing the correct forms within the state’s statute of limitations, or deadline for filing.
Your birth injury claim will take the form of a medical malpractice lawsuit. You have eight years from the date of the incident to file a birth injury claim, or until you child turns 22 if he or she suffered a disability. Other types of medical malpractice lawsuits have shorter, two-year deadlines. The courts generally will not allow you to file if you miss your statute of limitations.
Illinois medical malpractice law also requires an affidavit of merit with the initial claim. The affidavit declares that the plaintiff or his/her attorney has consulted with an appropriate health care professional, and that this expert believes there is a “reasonable and meritorious cause” for the lawsuit. The medical professional must have knowledge in the related medical issues, currently practice or teach medicine, and have expertise in the subject matter of the lawsuit.
You may have up to 90 days after filing your demand letter to attach an affidavit of merit if you cannot get one within the statute of limitations. If your claim does not have an affidavit of merit, it will most likely receive dismissal. A birth injury lawyer can help you fulfill the affidavit requirement according to state laws.
Waiting for a Response
Once you or your lawyer file the birth injury claim, the defendant must respond within the deadline (typically 30 days). The defendant will either accept the claim and enter into settlement negotiations, or deny the claim. If you receive a denial, you have the power to take the defendant to court to fight for compensation.
While you wait for the defendant’s answer to your complaint, you and your attorney will work on building your case. Your lawyer will gather all available evidence to help prove your birth injury lawsuit and the defendant’s negligence. Evidence may include medical records, photographs of injuries, statements from eyewitnesses who were in the delivery room, prior complaints against the physician, and testimony from medical experts. You will work closely with your attorney to craft a comprehensive legal strategy moving forward.
If the defendant accepts your claim, settlement negotiations can begin. Most birth injury claims achieve successful settlements without needing to go to court. Hiring a lawyer to represent you during negotiations can increase your odds of reaching a successful compromise without needing a costly or lengthy malpractice trial. Settlement negotiations with help form an attorney can ensure you do not settle for less than your case is worth, while you focus on your child’s treatment and recovery.
A birth injury settlement could result in payment for all your medical expenses, physical therapy costs, special education costs, and other related economic damages. A settlement is often the cheapest and easiest way to resolve your birth injury case. However, it may not be enough if the defendant is unwilling to negotiate a fair amount – or if the defendant denies your claim from the beginning.
The Court Process
Should your birth injury claim require a trial, the court process will start with the discovery phase. Discovery involves research, evidence gathering, and hosting interviews with people from the other side of the case as both sides work to collect information. It could take months to acquire medical records and other pieces of evidence since hospitals are often slow to respond to requests.
The discovery process often involves requesting documents from the other party and taking depositions from witnesses. An important part of a medical malpractice discovery process is testimony from the expert medical witness. After the end of discovery, the trial will begin. A judge or jury will listen to both sides and conclude whether the plaintiff has fulfilled his or her burden of proof against the defendant. If so, the courts will award an appropriate judgment amount to compensate the victim for his or her losses. If not, the plaintiff can appeal the court’s decision.
Speak to an Attorney About Your Lawsuit
A birth injury lawsuit can take around three to six months to resolve via settlement. If your case requires a trial, it could take one year or longer to reach a verdict. Working with an attorney can expedite the claims process as much as possible for you and your family. You can take the correct steps, avoid common mistakes, save money, and achieve better results. If you wish to speak to a birth injury attorney about your lawsuit, contact Rosenfeld Injury Lawyers LLC.