According to the Centers for Disease Control and Prevention (CDC), there are more than 130,000 births every year in Ohio. While the vast majority of these births go according to plan, mistakes do happen.
If a healthcare professional's mistake causes an injury to your child during labor and delivery, you may be able to file a birth injury lawsuit on your child's behalf.
Let's take a closer look.
Birth injuries are injuries that occur during the process of labor and delivery. Birth injuries may be unavoidable but are often the result of a healthcare professional's negligence. In the latter case, you may be able to sue the healthcare professional for damages.
On the other hand, birth defects are structural changes that occur while your baby is developing in the womb. Birth defects are generally the result of genetics, behavior, or environmental conditions, and rarely give rise to litigation.
Here are some common examples of birth injuries and birth defects:
|Birth injuries||Birth defects|
|Cerebral palsy||Cleft lip|
|Shoulder dystocia||Congenital heart defects|
|Bruising or forceps marks||Muscular dystrophy|
|Caput succedaneum||Spina bifida|
|Facial paralysis||Down syndrome|
Although it may be devastating, you can't successfully file a lawsuit just because your child suffered a birth injury. To establish liability, you need to prove that:
The defendant in a birth injury lawsuit can be any licensed healthcare professional (including a doctor, nurse, or physician assistant), a healthcare facility, or a medical device manufacturer (in the case of an injury caused by a defective product).
As a practical matter, plaintiffs generally file birth injury lawsuits against the responsible healthcare provider and the hospital that employs the healthcare provider.
The hospital may be held liable for the negligent acts of its employee under the doctrine of respondeat superior. This doctrine gives plaintiffs a better chance at actually recovering damages because hospitals tend to have lots of assets and are heavily insured.
To establish that your healthcare provider failed to exercise the appropriate degree of care and skill, experienced birth injury attorneys should consult with and present the testimony of medical experts.
The Affidavit of Merit is a statement from a licensed healthcare professional declaring that they:
If a birth injury complaint is unaccompanied by an Affidavit of Merit, the case may be dismissed.
The defendant in a birth injury lawsuit will consult with and present their own medical experts. In the end, the judge or jury will have to decide who to believe based on the evidence presented.
In Ohio, plaintiffs can recover economic and non-economic damages:
Unfortunately, Ohio places a damages cap on the amount of non-economic damages a plaintiff can recover in a birth injury case. Specifically, Ohio Revised Code Section 2323.43 limits the amount of non-economic damages to $250,000, or 3 times the plaintiff's economic damages (whichever is greater) with an overall maximum of $350,000.
The non-economic damages cap is extended to $500,000 if the child suffered certain permanent or catastrophic injuries.
The statute of limitations specifies the amount of time a plaintiff has to file a lawsuit. If the plaintiff fails to file a lawsuit within the time period specified in the statute of limitations, the lawsuit is forever barred.
The time a plaintiff has to file a lawsuit varies depending on the type of case.
In Ohio, medical malpractice cases must be filed within 1 year after the incident giving rise to the lawsuit. However, if the injury is sustained by a minor (as is the case with birth injuries), the 1-year statute of limitations doesn't start to run until the minor turns 18.
In other words:
With that being said, it's never a good idea to wait almost 2 decades to file a lawsuit. If you wait too long, witnesses may die, memories may fade, and evidence may be lost.
Birth injury law is a niche area of law. Attorneys who have experience litigating birth injury cases understand how to review complex medical documents, calculate future damages, negotiate with insurance companies, retain medical experts to testify, depose medical experts hired by the defendant, and explain complex medical conditions to judges and juries.
The bottom line:
It's a good idea to hire an attorney who has experience litigating birth injury cases. Here are some resources to help make sure you hire the right attorney for your case: