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When a child suffers a birth injury because of medical negligence, parents may face years of medical care, therapy, adaptive equipment, and other expenses. Depending on the severity of the injury, the child may also face lifelong impacts. At the same time, parents may be dealing with the emotional impact of knowing that their child’s injury might have been prevented.
If your child’s birth injury was caused by medical malpractice, you may be able to file a personal injury lawsuit to recover compensation for medical expenses, future medical care, pain and suffering, and other losses. New York law places strict time limits on filing this type of claim, known as the statute of limitations. For children, the statute of limitations for filing a claim is 10 years from the date that the injury was discovered or should have been discovered.
The Law Offices of Thomas L. Gallivan represents injured children and their families across a range of personal injury cases, including medical malpractice actions. We work with our clients to help them understand their rights and how the statute of limitations impacts their case. Reach out to our law firm today to schedule a free consultation with a New York birth injury lawyer.
What Is the Statute of Limitations for a Birth Injury Lawsuit in New York?
Birth injury lawsuits are a type of medical malpractice claim. Typically, the statute of limitations for medical malpractice cases is 2 years and 6 months. This means that you have up to 30 months to file a lawsuit from the date that you either discovered the alleged malpractice or (in some cases) the date of your last treatment for the condition caused by the malpractice.
For medical malpractice claims involving children, however, there is an important exception. The statute of limitations contains exceptions for certain situations where it wouldn’t be fair to impose a strict limitation. This includes exceptions for cases where:
- The victim is under the age of 18.
- The victim is suffering from a serious mental health condition.
- The at-fault party (defendant) is not in New York when they harm the victim.
- The defendant leaves New York after the injury and does not return for at least 4 months.
- The defendant is using a fake name that the victim doesn’t know.
In these situations, the statute of limitations may be paused (tolled).
For minors, New York’s tolling rules can extend the amount of time that an injured child has to bring a birth injury claim. Under New York law, when a medical malpractice claim accrues while the injured party (plaintiff) is an infant, they have up to 10 years to file a lawsuit. In most cases, the statute of limitations won’t extend beyond 10 years from the date that the claim accrued.
The statute of limitations is incredibly important because once it has expired, you won’t be able to pursue a claim. If you file a lawsuit after the statute of limitations, then the defendant will almost certainly file a motion to dismiss. This means that you could lose your right to recover compensation if you don’t file a lawsuit on time.
This means that parents should not assume that their child has until adulthood to file a birth injury lawsuit. Depending on the facts of the case, the statute of limitations may be the child’s 10th birthday. This makes it incredibly important to seek experienced legal counsel early in the process.
When Does a Birth Injury Claim Accrue?
For some types of personal injury cases, the date that a claim accrues is very obvious. For example, if you are in a car accident, then the date of the crash is the day that the statute of limitations will begin to run.
Medical malpractice cases are a bit different because an injury isn’t always apparent on the date that it occurs. If a doctor fails to diagnose you with cancer, you might not be aware of the medical malpractice for months or even years down the road.
In New York, the date that the statute of limitations for a medical malpractice claim will begin to run will vary based on the facts of the case. It may begin to run:
- On the day that you were harmed by substandard care
- On the date of your last treatment if the malpractice was part of a continuing course of medical treatment
- On the date that you discovered or reasonably should have discovered in two scenarios:
- A foreign object was left in your body (subject to a 1 year statute of limitations after the discovery); or
- A provider failed to diagnose cancer
For plaintiffs who were minors at the time of the medical malpractice claims, such as in a birth injury case, the statute of limitations may be extended until they turn 18. However, in most cases, the deadline to file a lawsuit won’t be extended beyond 10 years after the alleged malpractice occurred.
Consider a situation where your child was diagnosed with cerebral palsy due to oxygen deprivation at birth. This birth injury could have been prevented with proper medical care, such as by performing an emergency cesarean section when labor failed to progress. In this scenario, the statute of limitations would be 10 years from the date of the injury, or the child’s 10th birthday.
However, there are cases where a birth injury isn’t immediately obvious at birth. For example, a milder case of cerebral palsy may not be diagnosed until the child starts missing developmental milestones in toddlerhood. In these cases, the statute of limitations may start to run when the injury is discovered.
Typically, birth injury lawsuits are filed by parents on behalf of their minor children. This means that you don’t have to wait until your child is older to file a claim. It is generally a good idea to pursue legal action sooner rather than later so that important evidence is available and you can put together the strongest possible claim for compensation.
Our New York birth injury attorneys are adept at analyzing claims and determining the best course of action. If you believe that your child has suffered a birth injury, don’t hesitate to call. We will work with you to help you get the best possible outcome for your case.
What Damages Can Be Recovered in a New York Birth Injury Lawsuit?
When medical negligence causes a birth injury, the losses may extend far beyond immediate medical bills. In many situations, a child has significant medical, therapy, and other needs for years. A child’s long-term earning potential and ability to live independently may also be impacted.
Depending on the circumstances, compensation in a birth injury case may include:
- Past medical and hospital expenses
- Future medical treatment
- Physical and occupational therapy
- Speech and developmental therapy
- Prescription medications
- Medical equipment and assistive technology
- Home modifications
- In-home care or personal assistance
- Special education expenses
- Loss of future earning capacity
- Physical pain and suffering
- Emotional distress
- Reduced quality of life
Calculating these damages often requires looking beyond the child’s current needs. Medical professionals, life care planners, economists, vocational experts, and other specialists may be needed to determine the likely cost of future care and the financial impact of a permanent disability.
A parent’s ability to work and earn a living may also be affected by a birth injury. If a parent takes off work for appointments and other necessary care, their lost wages could be part of the total compensation. In addition, if a parent has to quit working to provide care for their child, their lost earning capacity may be included as damages.
In rare cases, a birth injury case may lead to an award of punitive damages. This category of compensation is meant to punish someone who engaged in intentional or reckless conduct. While it is rare in medical malpractice cases, punitive damages may be awarded in some situations, such as if a physician attended a birth while under the influence of alcohol and/or drugs and committed malpractice as a result of their intoxication.
Medical malpractice insurance companies often encourage parents to accept a quick settlement offer. While these offers can be tempting, they often “lowball” settlements. In other words, if you accept the settlement, you probably won’t get the money that you need to cover your full losses.
A settlement offer will require you to give up your right to sue for the birth injury in the future. If you discover that your child’s injuries were more serious than you originally thought, you won’t be able to go back and get more money. That is why it is so important to consult with a New York birth injury attorney before talking to an insurance adjuster, making a statement, signing any paperwork, or accepting a settlement.
Talk to a New York Birth Injury Lawyer About Your Case
New York’s statute of limitations for birth injury cases can be complicated. While medical malpractice claims typically have a 30-month statute of limitations, special rules apply when the injured party is a child. These rules give you up to 10 years to file a claim, but it is still a good idea to pursue legal action sooner rather than later to protect your rights and to put together the strongest possible claim for compensation.
At the Law Offices of Thomas L. Gallivan, we are adept at navigating complex laws and dealing with insurance companies. We won’t back down from a fight, and we won’t accept anything less than full compensation for our clients. To learn more, call us at 914-220-1086 or fill out our online contact form to schedule a free consultation with a New York medical malpractice attorney.
