Find out when a birth injury lawsuit is appropriate
According to the National Center for Health Statistics, there are roughly 62 children born per 1,000 women ages 15-44 every year in New Mexico.
The vast majority of children born in New Mexico are healthy. However, roughly 2 out of every 1,000 children suffer some sort of birth injury.
If you’re a parent of a child who suffered a birth injury, you probably care less about the statistics and more about the legal options that might be available to help your child. So without further delay, let’s take a look at birth injury claims in the Land of Enchantment.
Birth injuries vs. birth defects
A birth injury (sometimes called a “birth trauma”) is any injury that occurs during the process of labor and delivery.
A birth injury shouldn’t be confused with a birth defect:
- Birth injuries are the result of some action (or failure to act) that occurs during labor and delivery.
- Birth defects are the result of some problem that occurs when the child is developing in the womb. Birth defects are generally the result of genetic or environmental factors. As a result, parents generally can’t sue anyone based on a birth defect.
Labor is a natural process, but that doesn’t mean it’s always a smooth process. Labor and delivery can test a mother and child’s physical and emotional stamina. Fortunately, most birth injuries that occur during labor and delivery are relatively minor and simply the result of being born. These include:
- Swelling or bruising of the head
- Bleeding underneath one of the cranial bones
- Breakage of small blood vessels in the eyes
- Facial nerve injury
- Injury to the group of nerves that supply the arms and hands
- Fracture of the clavicle or collarbone
In addition to the common and usually minor birth injuries listed above, more serious birth injuries can occur:
- Cerebral palsy
- Traumatic brain injury (TBI)
- Respiratory problems
- Shoulder dystocia
When can you sue for a birth injury?
In order to sue for a birth injury, someone has to be at fault for the injury. To establish fault in New Mexico, your birth injury lawyer will need to prove that:
- Your healthcare provider failed to exercise the degree of care and skill expected of a reasonable healthcare provider in the same profession, and
- The failure was the cause of your child’s injury.
Common examples of actions that might lead to a birth injury lawsuit include:
- Failure to diagnose or misdiagnosis
- Failure to monitor the baby
- Misreading or ignoring test results
- Unnecessary surgery
- Surgical errors
- Premature discharge
- Failure to order proper testing
- Failure to recognize symptoms
The role of the New Mexico Medical Review Commission
The process for filing a birth injury lawsuit in New Mexico is different from the process for filing most other personal injury lawsuits.
Before you can file a birth injury lawsuit (or any other medical malpractice lawsuit), you have to file an application with the New Mexico Medical Review Commission containing:
- A brief statement of the facts of the case (the persons involved, the relevant dates, the alleged malpractice), and
- A statement authorizing the commission to obtain access to all medical and hospital records related to the matter.
Once the application is submitted, a hearing will be held in front of the commission within 60 days. During the hearing, each side will be allowed to present their case using oral arguments, witness testimony, and documentary evidence.
Following the hearing, the commission will determine whether there’s substantial evidence that medical malpractice occurred. The decision is shared with both parties but the decision isn’t admissible in court.
Who sits on the New Mexico Medical Review Commission?
The New Mexico Medical Review Commission consists of 3 healthcare professionals who work in the same profession as the defendant and 3 licensed New Mexico attorneys.
If the commission’s decision isn’t in your favor, you can still file a lawsuit (though an unfavorable decision usually indicates that obtaining a favorable decision in court is unlikely). On the other hand, if the decision is favorable, the defendant may be motivated to settle the case.
What damages can you recover for a birth injury in New Mexico?
An injured child can recover all the types of compensation that are typically available in a personal injury action, including:
- Physical pain and suffering
- Medical expenses
- Lost wages
- Emotional distress
However, New Mexico has 2 unusual rules when it comes to damages in birth injury cases:
- New Mexico limits the amount of recoverable damages to $600,000. However, this damage cap does not apply to medical expenses.
- New Mexico does not allow a lump sum award for future medical expenses. Rather, future medical expenses will be reimbursed as they occur.
What is the New Mexico Patient Compensation Fund?
In a New Mexico birth injury lawsuit (or any other medical malpractice lawsuit), a healthcare provider’s personal liability is limited to $200,000. Any amount of damages awarded that exceeds $200,000 will be paid from the New Mexico Patient Compensation Fund.
The New Mexico Patient Compensation Fund is a benefit to plaintiffs because it ensures payment in the event that a healthcare professional doesn’t have enough money to satisfy the judgment.
Birth injury statute of limitations in New Mexico
Under New Mexico Statute 41-5-13, medical malpractice claims must be filed within 3 years after the date the malpractice occurred. However, when the harm involves a child, the parents or guardians of the child have until the child turns 9 years old to file a lawsuit.
If the lawsuit isn’t filed in time, the court will dismiss the case and the child will be unable to recover ANY damages for their birth injury.
How to find a birth injury lawyer
Birth injury law is a unique and complex area of law. Consequently, it’s important to hire an attorney who has experience litigating birth injury cases.
Fortunately, most attorneys offer free initial consultations. These initial consultations give you the opportunity to ask the attorney questions about their experience handling birth injury cases and allow you to get a sense of whether the attorney is someone you want to work with.
Personal Injury Attorney Interview Sheet
Worksheet with questions to ask a personal injury attorney to help determine if he or she will be a good fit for your case
Download in PDF format
Did you know that medical malpractice law varies by state?
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