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When to Sue & Settle over a Birth Injury



If your baby has suffered a birth injury at the hands of your medical providers, you may have received a settlement offer from the doctor's or hospital's insurance company, or both. Before you accept the offer, it is vital that you understand what it means to settle the case and whether a lawsuit would be more advantageous to you in the long run.

Compared to other medical malpractice cases, which involve proving a medical provider did not apply a reasonable standard of care in treating a person which directly resulted in an injury, cases forbirth injuries are relatively successful and result in a large award.

Ideally, you should talk to a medical malpractice attorney who has experience with birth injury lawsuits. The insurance company's goal is to settle your possible claim for as little money as possible. The insurer may even try to use information you provided as a reason to lower the amount they offer you. A qualified birth injury lawyer can help you negotiate with the insurance company to get the best possible settlement for your baby's birth injury or represent you in court should you be unable to reach a settlement.

Accepting a Birth Injury Settlement

If you decide to accept a settlement offer from an insurance company representing your doctor, midwife or hospital, you are at the same time agreeing to relinquish your rights to sue the party who may be at fault for the birth injury. You may also be prohibited from speaking about the specifics of your settlement. Your lawyer would be able to explain the specifics of the settlement offer and how it works.

There are advantages to accepting a settlement offer:

  • Your case will be resolved more quickly than going to trial
  • Because of that, you'll have faster access to money to help you pay for the birth injury-related medical expenses
  • Your overall legal bill will be smaller than if you had gone to trial
  • The details of your settlement can remain confidential

Going to Trial Over Your Birth Injury Lawsuit

Before you settle, however, you should consider some of the reasons to file a lawsuit, then take that case all the way to court. For example, you may be awarded more money. A report by the U.S. Department of Justice shows that the average trial award in medical malpractice lawsuits, which includes birth injuries, is more than double the settlements offered after a lawsuit is filed and many times greater than a settlement offer that comes before a lawsuit is filed.

Another reason you may want a public trial is to reduce the risk of future birth injuries at the hands of medical practitioners while raising awareness for other parents.

However, medical malpractice lawsuits are especially time-consuming and expensive. This is because you must have medical expert witnesses testify that your healthcare provider failed to provide a reasonable standard of care that doctors in your area provide. Also, you need to make a direct correlation between that lack of reasonable care and the resulting birth injury. Medical expert testimony does not come cheap.

Another downside is that it could take many months, even years, before you resolve your birth injury case.

A birth injury attorney can walk you through the positives and negatives of settling, filing suit then settling, or taking your case all the way to trial, given the specifics of your child's birth injury.