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Steps to Take to Strengthen Your Birth Injury Malpractice Case

Of all the cases that injury attorneys handle, birth injuries often seem like the most heartbreaking and unfair. A child who is injured coming into the world never has the chance to enjoy many aspects of life that the rest of us take for granted. They struggle in ways most of us cannot fully imagine. And their parents suffer untold agony watching what their child must endure and knowing that it didn’t have to be this way. Children with birth injuries often suffer conditions that reduce their life expectancy substantially.

At Searcy Denney, our attorneys approach birth injury cases with compassion, but we also recognize that it is important to employ the right strategies to ensure that injured children and their families will have the resources to meet everyone’s needs for the long term. An emotional plea is not always enough to obtain what these families deserve. Therefore, we break down all the factors that impact the case to show precisely why a generous damage award is the only appropriate outcome under the circumstances. In our experience, there are certain steps parents can take to strengthen a birth injury malpractice case.

Step One: Take a Proactive Stance

If you are an optimistic person or someone who doesn’t like to make trouble, it can be easy to tell yourself that things will get better and you should wait before taking action. For your child and yourself, this is not the right time to be patient. Instead, you need to actively work to secure your child’s best future.

Find the best medical care. Get second opinions. Find out what you can do to help your child’s development. Every day counts when your child’s health and well-being are on the line.

You also need to find out what happened and whether medical negligence or malpractice caused your child’s injuries. It is best to begin investigating as early as possible. As time passes, evidence becomes harder to obtain. An experienced birth injury attorney will understand how to locate and preserve evidence to support your claim. You have only a limited amount of time to take legal action, so it is important to begin building your case as soon as possible.

Step Two: Find an Attorney Who Understands Birth Injury Malpractice

Medical malpractice cases are far more complex than many other types of injury cases, requiring extensive medical knowledge as well as legal acumen. Many attorneys who list malpractice under their areas of service lack the knowledge and experience to help victims achieve the full compensation they deserve.

Cases involving birth injuries are a further focused area of practice that even fewer attorneys have the mastery of handling properly. Therefore, you may need to look carefully to find the right attorney to handle your claim for damages. Read reviews. Check case results. Find a legal team with the resources to locate the right experts and the skills to make the most effective use of those experts.

You will need to satisfy multiple elements to achieve the right outcome in your case. In addition to showing the malpractice occurred and that it caused your child’s injuries, you will need to demonstrate the extent of the injuries and the impact it will have on your child’s life for years to come. These are complicated factors requiring a considerable degree of skill to demonstrate properly.

It is important to seek legal counsel as soon as you suspect that your child may have suffered a birth injury that led to cerebral palsy or another debilitating condition. Prompt action allows your legal team to investigate while evidence is most readily available. Acting quickly also prevents you from losing your right to compensation due to the statute of limitations, which has recently changed in Florida.

Step Three: Gathering Evidence to Identify the At-Fault Party

To recover compensation for birth injuries and other forms of medical malpractice, you need evidence to show that a medical professional failed to provide care meeting the reasonable standards for the circumstances. For instance, the degree of detailed analysis expected of a provider would not generally be as great in an emergency situation where quick action is required as in a situation where a doctor has the time to closely scrutinize records and test results.

You need information to establish many details and answer many questions. What are the injuries? What caused them? What should have happened instead, and what could have avoided the injuries? Who was responsible for doing something incorrectly or failing to do something that they should have under the circumstances? Responsibility for a birth injury might lie with:

  • A doctor who failed to identify a risk factor and order appropriate precautions
  • A hospital that provided defective  equipment in the delivery room or neonatal care unit
  • A medical team who failed to provide proper monitoring before and during birth
  • A hospital who hired a medical professional who lacked appropriate qualifications or training
  • A staff member who performed a procedure negligently

As you might expect, hospitals are not eager to hand over evidence that will make them look bad, so it requires experience and tenacity to know how to effectively uncover the evidence needed to demonstrate fault for birth injuries. This is another reason why it is critical to begin working with a knowledgeable Tallahassee birth injury lawyer sooner rather than later.

Step Four: Be Mindful of the Statute of Limitations

No matter how severely a child was injured and no matter how badly a medical professional neglected their duties, Florida law will not allow parents to pursue legal remedies for their child if the statute of limitations deadline has passed. This deadline operates as an absolute bar to injury claims.

While the impact on claims is absolute, the calculation of the deadline is not so absolute. For medical malpractice cases in Florida, claims generally need to be prepared and filed “within 2 years from the time the incident giving rise to the action occurred or within 2 years from the time the incident is discovered or should have been discovered with the exercise of due diligence.” This means that the deadline to file a lawsuit could be two years from the time the medical professional acted wrongfully, or it could be two years from the time parents first realized that a medical professional had made a mistake that caused injuries to their child. It can take years for a problem to become apparent and longer even for experts to realize that there is a medical error underlying a child’s problem. So, the two-year time limit for preparing and filing a claim might start later.

To further complicate matters, the rules contain two additional exceptions. First, there is a “statute of repose” limitation specifying that regardless of how long it takes to discover a medical error, a claim must be filed within four years of the time the error was made. However, there is also the exception known as “Tony’s Law,” which can extend the deadline to file a claim up until a child’s eighth birthday. This law was inspired by the tragic story of a boy severely injured because a doctor performing hernia surgery believed the boy’s testes were ovaries, and as a result, the doctor implanted them in his abdomen. The doctor told the family the boy had both female and male sexual organs, and the family continued in this belief for years until a pediatric surgeon later confirmed that the earlier doctor had made a horrible mistake. The parents learned of this mistake 14 days after the four-year statute of repose prevented them from filing a claim. Lawmakers then created an exception in the law to allow parents to file a claim for medical malpractice on behalf of a child up until the child’s eighth birthday. The exception only extends the deadline if the malpractice was not discovered and could not have been discovered sooner “with the exercise of due diligence.”

The bottom line is that calculating the amount of time you have to file a claim for birth injuries can be very complicated, and the answer is not always cut and dried. It is important to work with a birth injury attorney who is prepared to act quickly when necessary and to make the right arguments to show why a claim is permissible under the circumstances.

Searcy Denney Knows How to Obtain the Right Compensation in Birth Injury Cases

The experienced team of attorneys at Search Denney in Tallahassee understands not only how to investigate to uncover the evidence to build a solid claim for birth injury malpractice, but we also know how to show the impact the injuries will have on the future of the child and the family as whole so that the damage award will include compensation to offset a multitude of effects lasting throughout the child’s lifetime. Birth injuries are heartbreaking, but when you know that you have taken the best steps to secure your child’s financial future and provide for their needs to be met today, tomorrow, and for years to come, you can find a small measure of comfort and enjoy some sense that justice has been served.

If your child suffered a birth injury, it is important to consider not only how this affects them now but the impact that this will have on their future. We invite you to contact our knowledgeable team or call 888-549-7011 for a confidential, free consultation to learn the steps you can take to succeed with a birth injury claim.

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Posted By: Bud Wilder