ChildRC: Birth Injury Resource Center

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Understanding the Legal Process of Birth Injury Claims

The Sokolove Law intake process

At Sokolove Law, we believe it is important that you understand what you can expect if you decide to take legal action on behalf of your child’s birth injury. Here we will give you an idea of how we at Sokolove Law typically handle birth injury cases. We lay out how we may work with you, and what role your child will play in this process. We will also explain the precautions we take to try to minimize how much this case interferes with yours and your child’s day-to-day life.             

While undertaking a lawsuit can seem like a daunting and confusing process, it is important to know that, if we take your case, Sokolove Law and our Co-Counsels are here to serve as an advocate and facilitator for both you and your child within the legal system. Learn more about your rights as a parent and the role you will play in the Birth Injury Claim Process.

The First Phone Call  

By calling  Sokolove Law, you have taken the first step in advocating for your child. During your initial phone call with us, you will speak with one of our nurse case managers, who will discuss the medical care and treatment that you and your child received, and gather the information necessary for our legal team to conduct a preliminary review of your potential claim. An official lawsuit does not begin with this phone call, but rather, the evaluation process begins to determine whether your child’s injury was potentially caused by substandard medical care.

What kind of information will be asked for on the phone? 

Our nurse case managers who take your phone call will ask you for information about the mother’s pregnancy, about the delivery, and about the condition of your child at the time of delivery and shortly thereafter.

Obviously in most cases the mother would be the best person to answer questions regarding the pregnancy. When answering questions about the delivery, however, the mother’s significant other, or a trusted source who was present during the delivery, may be the best person to provide information since that person was in the best position to observe the delivery as well as the events that were occurring in the delivery room.

Some examples of questions that may be asked during this preliminary consultation are:

• When did you begin your prenatal care?
• Did you take any medications while you were pregnant?
• Did the mother deliver at term?
• Was the baby breathing on its own upon delivery?

If your child has already been diagnosed with a birth injury then our nurses case managers may ask you more targeted questions such as:

• When was your baby’s birth injury diagnosed?
• Can you list the surgeries and therapies your baby has had thus far?

It will be necessary for you to give our nurse case managers additional information such as your address and other contact information. Filling out our Free Evaluation Request before you call our offices can save you time during this process. This information may be used to pair you with a co-counsel in your area who has experience in birth injuries and who will further evaluate your claim.

How long will this phone call last?

The average phone call lasts approximately 20 minutes. However, total length of this inquiry call varies depending on the amount of information you have readily on hand to answer the inquiry questions.  Submitting a Free Evaluation Request before talking with our nurse case managers can help reduce the length of the phone call. Once the nurse case manager has collected all of the necessary medical information, it will be reviewed by one of our birth injury co-counsels in your area.  Co-counsel will be reviewing this information to determine whether there are potential areas of substandard medical care that could have caused your child’s injury.

You have the right to stop the legal inquiry at any time during the inquiry process. Should you no longer decide that you want to proceed with the legal evaluation, you can choose to stop, usually without any cost or fee to you.

The First Meeting

Should the co-counsel decide that your case has elements that could justify a lawsuit, or that there are signs of substandard medical care, then they will proceed to the next stage of evaluation. This stage will consist of speaking and/or meeting with you, and having you sign an HIPAA form in order to request the medical records necessary to continue to evaluate the issues that they identified. Review of the medical records is necessary in order to determine whether the co-counsel will take your case and file a lawsuit or otherwise make a claim on behalf of you and your child.

The Role of the Co-Counsel 

Once co-counsel has all of the necessary medical records, they will perform an in-depth review of the content of those records.  If the medical records confirm the suspected areas of substandard medical care, then co-counsel generally will proceed to the next stage of evaluation. This stage consists of consultation with medical experts. 

In birth injury claims, expert medical opinions sought by co-counsel can include obstetricians, neonatologists, and pediatric neurologists.  Co-counsel will request that the expert physician review the medical records to determine whether substandard care was rendered to you and/or your child, and whether this substandard care resulted in your child’s injury. If it is the opinion of the expert physician that substandard medical care was provided to you and/or your child, and that this substandard care most likely caused your child’s injury, then co-counsel will likely be able to take your potential claim to the next stage, and may officially file a lawsuit.

The Discovery Phase

If your claim proceeds to a lawsuit, you (on behalf of your child), will be the plaintiff in the lawsuit, and the health care provider(s) who rendered the substandard care will be the defendant in the lawsuit. During the Discovery phase, the plaintiff and defense sides exchange information to learn more about the facts at issue in the lawsuit. Two of the primary ways in which information is exchanged is by interrogatories, and by deposition. Once the lawsuit has been filed with the court, the case moves into period of time called “Discovery.”

Interrogatories and Depositions 

Interrogatories are written questions that each side submits to the other, to which written responses are provided. Your attorney will assist you with this process.

A deposition is a series of questions asked by the attorney of a witness who is under oath.  This question and answer session is conducted in front of a stenographer who documents the questions and the responses. Your deposition will most likely be taken by the defense attorney, and your attorney likely will take the depositions of the defendants in the lawsuit, as well as any other individuals who have information pertinent to the issues in the lawsuit.  The time a deposition takes can vary, and depends upon the facts of the case, and the amount of information that needs to be explored. Your attorney will meet with you before your deposition to explain the process, as well as what you can expect during the deposition. Your attorney will be with you at your deposition. It is unlikely, barring some extenuating circumstance, that your child will have to give a deposition.

The length of time that the Discovery period lasts varies from state to state depending upon the state’s laws. However the average time ranges from approximately one to two years.

Settlements 

At any point from the time that the lawsuit is filed until the verdict is read in court, the defense attorney can bring a settlement offer to the your attorney. Your attorney will discuss any and all settlement offers with you, and advise you accordingly. However, the final decision is yours as to whether you accept the settlement offer. Many birth injury claims settle before or during trial.

The Trial 

Should a settlement not be reached, the lawsuit likely will move toward trial.

Once the discovery phase has ended then a trial date will be confirmed. The time in between confirming the trial date, and the point at which a trial begins can vary from a few weeks to a few months, depending on the schedule of the court, the availability of witnesses, and a variety of other factors.

A jury will be selected to hear the case and decide upon a verdict. The length of the Birth Injury trial varies. A number of factors go into determining the length of a trial. However the average length is one to two weeks.

During the trial you will likely be called to the stand to testify. You will be asked questions under oath by your attorney, and by the defense attorney.  You will need to be present in court for every day of the trial.

The Verdict

At the conclusion of the testimony part of the trial, closing arguments will be made by the attorneys. Once these are completed, the case will be handed over to the jury for them to deliberate. The amount of time that a jury deliberates varies greatly. Once the jury has a reached a verdict, it will be announced in court. If the jury finds in your favor, then they will also decide upon the amount of financial compensation to be awarded to you and your child, which will be announced in court as well. The defendant(s) may or may not appeal the verdict or any compensation awarded.

Please take the first step today to advocate for child. Call 800-706-5250, to speak with a nurse case manager at Sokolove Law to discuss your potential birth injury claim.

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