While some reports say that five in 1,000 babies in the United States will be born with birth injuries, others claim that as many as seven in 1,000 will be the victims of medical malpractice. This means that up to 70 children may be born with avoidable birth injuries every single day in the nation. With the current birthrate in California, these numbers could mean that 7 to 10 children are born daily who have birth injuries.
Statute of Limitations
For the parents of these children, lawsuits in California must be filed quickly. The state allows three years from the time of injury to file. Even in cases where the injury may not be detectable until the older years of child development, three years is the limit. The only exception the state of California makes is if a foreign object is left in the child’s body during a surgery required by a birth injury. In this case, the parents have three years from the time the object was discovered, provided it was discovered within a “reasonable” time frame.
In the event that an infant dies due to a birth injury, the state allows parents two years to file a birth injury lawsuit. California also allows a minor child to present their own lawsuit regarding birth injuries within the first six years of life.
There are a few exceptions to the statute of limitations that can be taken into consideration when building a birth injury case. Courts may grant an extension on filing a lawsuit if the defendant left the state after the event, thereby becoming unavailable to answer the court summons.
Cap on Malpractice Awards and Fees
California does place a cap on the amount of non-economic damages that can be awarded to a plaintiff in a malpractice lawsuit. Economic damages are those that directly relate to the costs associated with the medical care of the child who was injured at birth; this could also include the estimates for future care that will be necessary in the event that the birth injury caused severe mental or physical disability.
Non-economic damages are items that cannot be given a provable dollar amount, such as emotional distress that was caused by the birth injury of the child, or the loss of enjoyment of life that the child may experience in the future. For these types of claims, the court will only award up to 250,000 dollars, in addition to the economic damages that are awarded.
Attorneys in California who take on birth injury lawsuits usually work on a sliding scale percentage basis for their fees. For example, the first 50,000 dollars results in a 40% attorney fee. The next 50,000 dollars over that results in a 33% fee. The following 500,000 dollars (up to a total of 600,000) results in a 25% fee, and any amount following that results in a 15% fee. All attorney fees are different, but this is a typical structure.
Shared Liability
California requires that the award of damages only be paid in full if the mother or parents were not found guilty of any shared liability. For example, if failing to follow a doctor’s medical advice was at least partly responsible for the birth injury suffered by the child, the damages awarded will be reduce in relation to the fault of the parents.
Typically, plaintiffs who are awarded damages at all are not found guilty of shared liability. The attorney who represents the case will be able to estimate if shared liability could be deemed appropriate, and how much that will reduce the probable damages.
Sources:
http://www.alllaw.com/articles/nolo/medical-malpractice/laws-california.html
http://www.hershlaw.com/infant-birth-injuries-from-obstetrical-negligence.html
http://www.birthinjuryguide.org/birth-injury/financial-support/statute-limitations/