How Long Can You Wait After a Birth Injury to Sue?
When babies suffer serious injuries during childbirth, symptoms may not appear immediately. As a result, parents often ask our lawyers, “How long can you wait after a birth injury to sue?” Unfortunately, the answer is not always clear.
The deadline for initiating most birth injury lawsuits in Nevada is one (1) years. The time limitation generally starts to count from the date of the child’s birth. However, Nevada follows a discovery rule that enables you to sue for a birth injury up to one year after discovering your child’s injuries, or after you should have reasonably discovered the injuries.
Why File a Lawsuit After a Birth Injury?
Birth injuries that are caused by a medical provider’s negligence can leave your child with health complications or disabilities. Mounting medical bills and full-time care can cause financial constraints to your family. A birth injury lawsuit allows you to hold the responsible healthcare provider liable for the injuries and recover monetary compensation. If negligent medical care caused your baby to suffer injuries, you can be barred from recovering compensation if you wait too long after the birth injury to sue.
What Is a Statute of Limitations?
A statute of limitations is the legal timeframe for initiating a claim. In other words, it is the length of time within which you must sue someone. The law sets this deadline for civil and criminal cases.
A statute of limitations allows legal issues to be filed and resolved on time. It also encourages plaintiffs to bring lawsuits when physical evidence is still viable and witnesses can clearly remember the specifics of the incident.
Certain medical and legal issues may leave parents of injured children confused about the filing deadline. Some birth injuries like fatal delivery mistakes and traumatic injuries are discovered immediately.
Other injuries like cerebral palsy take longer to manifest. Most states have exceptions that pause the filing deadline until the discovery date. In this case, the clock starts counting from the date you noticed your child’s injury, not when it happened.
Courts usually dismiss cases brought after the relevant statute of limitations elapses. That’s why you should get a birth injury attorney onboard immediately after you suspect your child has sustained a birth injury due to a medical provider’s negligence.
Are There Exceptions to the Statute of Limitations?
There are a few exceptions to the birth injury statute of limitations. Most states have a discovery rule that addresses birth injuries that remain undetected for months or even years. This rule extends the filing deadline if you did not learn that your child had sustained a birth injury until after the applicable statute of limitations had passed.
Exceptions may also arise if the medical practitioner responsible for your child’s injuries moves to another state before you can initiate a claim. In this scenario, the filing deadline will be paused for the time the liable medical practitioner was away.
An exception might also apply if the liable medical practitioner hides the alleged medical error or mistake. In that scenario, the statute of limitations pauses for the period the alleged medical mistake remains hidden.
How Can You Get Legal Help for Your Birth Injury Claim?
Obtaining legal help for your birth injury claim is your best chance of protecting your child’s rights and future. You have the right to receive compensation from the parties responsible for your child’s injuries. As previously mentioned, some birth injuries like cerebral palsy will require lifetime care. A birth injury claim provides you with an option to recover the cost of raising a child with special needs. Consider the following qualities when looking for a lawyer to handle your birth injury claim:
Knowledge and Commitment to Birth Injury Cases
Look for a lawyer knowledgeable about medicine and personal injury law to demonstrate negligence in your birth injury claim. The lawyer who has dedicated his or her practice to birth injury cases understands the temporary and permanent impact of the birth injuries on your child and family.
Such a lawyer understands how to develop a strong case for you and pursue the full extent of your damages. The lawyer will investigate the alleged medical malpractice and consult medical professionals within that field to identify the liable parties for your child’s injuries.
A Demonstrated History of Results
Look for a lawyer with a demonstrated record of success in birth injury cases. How many cases has the lawyer won? Has any professional association recognized the lawyer for success in this practice area? Working with a lawyer with a demonstrated history of success will increase your odds of getting justice and reasonable compensation. The lawyer will understand the evidence and arguments required to obtain all recoverable damages in your claim.
Clear Communication
Clear communication is instrumental in building a meaningful and professional client-attorney relationship. It’s also essential in settling or winning a birth injury case. Look for a lawyer who can respond to any questions or concerns you might have regarding your case promptly. The lawyer should keep you posted on the progress of your case every step of the way.
Available Resources and Manpower
Involving a competent lawyer is not enough. You need someone with sufficient resources and powerful support staff to handle your claim. It’s important to note that the liable medical provider’s insurance company will be responsible for paying your claim. The insurance company will employ its resources and a team of lawyers to defend itself against your litigation. A lawyer with enough financial resources and powerful support staff will face any insurance company in court and get you a favorable outcome.
Birth injury lawsuits generally take months or a few years to resolve. Ask your prospective lawyer whether he or she intends to stay with the same law firm until your case resolves. The lawyer should walk you through how the case will be handled if the lawyer plans to switch law firms.
It is best to schedule an initial consultation with multiple birth injury lawyers to determine the lawyer that will be a perfect fit for your case. Most lawyers usually offer a free initial consultation, so you don’t have to worry about the cost.
You typically don’t have to worry about paying attorney’s fees upfront, as most birth injury lawyers take cases on a contingency fee arrangement. The lawyer collects a mutually agreed-upon percentage of the compensation the lawyer recovers for you. The lawyer gets nothing if he or she loses your case.
The percentages in contingency fee arrangements vary from state to state. The percentage may not cover the cost incurred in preparing and handling your case. Talk with a birth injury lawyer about his or her rates and if you’ll be responsible for paying out-of-pocket legal costs (like filing fees).
Evidence Required in a Birth Injury Case
You must show that the defendant’s action or lack of action caused your baby’s birth injuries. You must show this by a preponderance of the evidence. You’ll need to provide adequate evidence to prove that it’s more likely than not that your baby’s injuries arose from the defendant’s medical error or mistakes.
Multiple expert witnesses may be necessary in your birth injury case to show the alleged medical error, causation, nature and severity of the birth injury, and extent of damages. An expert witness can define the applicable standard of care for that area of medicine. He or she may also explain to the jury what kind of care and caution a similarly competent medical provider would have exercised in the same scenario. Medical records, diagnostic reports, doctor’s notes, and deposition testimonies are other pieces of evidence that can help you and your lawyer demonstrate the defendant’s negligence.
You must also prove that you suffered losses due to your baby’s injuries. Medical bills can help you prove the medical costs arising from the child’s injuries. Payslips can provide sufficient proof of your lost wages or income arising from missed work while taking care of the injured child.
Expert testimony will be necessary to prove your child’s future needs and the compensation required to meet those needs. It might also help you prove immediate and future non-economic losses stemming from when birth injuries leave visible and invisible scars.
