What are the time limits for bringing a birth injury lawsuit in NY or Pennsylvania?
Unfortunately, as you will read below, there is no simple answer to what sounds like a simple question so please bear with me as I explain why there is not a simple answer… The “usual” time limit (called the “statute of limitations”) for filing a medical malpractice claim in N.Y. is 2.5 years from the date of alleged malpractice. This time limit starts to run at the time of the alleged malpractice which in most birth injury cases is the date of the birth. In Pennsylvania, the “usual” time limit for filing a Pennsylvania medical malpractice claim is 2 years from the date of the alleged malpractice. The reason I used the word “usual” in quotes above is because there are some interesting exceptions to the “usual” time limits that apply in birth injury cases. First, these time limits are those that apply to adults in medical malpractice cases and they DO apply to any claim by the parents for their own damages due to the injuries suffered by their child. However, there are different time limits that apply to the claims of infants (infant is defined as anyone under the age of 18). Because our laws recognize that an infant is not capable of making an informed decision about pursuing a medical malpractice claim or not, the law provides for a “tolling” of the statute of limitations until the child turns 18. This “tolling” essentially means the clock is stopped until the age of 18 but once the child reaches 18, the clock starts ticking on the time period to pursue a claim. In NY, applying the “tolling” that applies to the claim of the infant, the time limit for a medical negligence claim is “usually” 2.5 years after the child reaches the age of 18. However, there is another law that also applies to limit the maximum amount of “tolling” to just 10 years. Accordingly, in New York, an infant’s birth injury claim usually must be filed before the infant turns 10. Our Advice — Get Your Case Evaluated ASAP: We know these time limits sound like a lot of time but believe us when we tell you time flies when you are investigating these cases and doing the necessary work to make sure all the necessary parties are sued before these time limits expire. Accordingly, it is always a good idea to consult with an experienced medical malpractice attorney as early as possible. Also, there are other limited exceptions to these time limits so if you are in doubt about the proper time limit, just E-mail us at [email protected] or call us at 1–800-ZIFFLAW for a free case evaluation.
What do you mean by birth injury cases or lawsuits?
There is no precise definition of what constitutes a birth injury but many of the cases that we have handled over the years fall into the following categories of injuries that have been caused right around the time of birth:
- Cerebral Palsy
- Fetal Distress Due to Lack of Oxygen at Birth (Hypoxic Ischemic Encephalopathy)
- Erb’s Palsy / Brachial Plexus Injuries (Neuroma, Rupture, Avulsion)
- Shoulder Dystocia
- Brain injury caused by improper use of Vacuum Extractors or Forceps
- Meconium Aspiration
- Excessive Bleeding
Can parents ask that money be allocated to them in there names?
Sorry but I am not sure I understand your question. Are you asking in the context of a lawsuit for injuries to their child when there is a separate claim for the parents (this is called a derivative claim)? If so, the Court can specifically allocate any derivative claim assuming both parents filed a derivative claim. If I misunderstood your question, please try to give more details so I can try to respond to your question.
What is cerebral palsy and how is it related to medical malpractice?
Cerebral palsy is a condition involving a group of disorders that affects the child’s ability to control his or her own movement. Cerebral palsy results from injury to the cerebrum (the largest portion of the brain, involved with higher mental faculties, sensations, and voluntary muscle activities). It can be caused by injury to the brain before, during, or after birth.
My child has been diagnosed with Erb’s palsy, could that have been caused by medical malpractice?
Yes. Erb’s Palsy can be caused during the birth process if a doctor or nurse negligently applies too much force in attempting to deliver a baby. Any excess stress to the baby’s neck or arm during delivery may result in permanent injuries to the baby’s nerves. This can result in paralysis of the arm, causing it to be limp or dysfunctional. Injuries such as these are classified by severity.
- Avulsion rupture is when the nerves are torn away at the area of the spine.
- A neuroma is when the nerves are torn, but during the healing process, scar tissue has formed. This can result in the disabling of the arm.
- A rupture occurs when the nerves tear at other locations.
How do most birth injuries occur that result in medical malpractice lawsuits?
Most birth injuries occur when the nurses or doctors fail to promptly respond to a baby or mother showing obvious problems during the delivery process. Doctors are nurses responsible for delivering babies are supposed to be trained to recognize problems and to immediately respond to those problems. Everyone knows that any delay in delivery can result in devastating injuries to the baby or mother — permanent injury or death. Delayed responses by the medical staff can occur for many different reasons such as:
- Inattention by the nursing staff (believe it or not we have one case right now where the nurses have admitted that they left a mother in labor unattended for more than one hour — sadly this baby suffered cerebral palsy, permanent brain damage and is a quadraplegic)
- Failure to properly train medical staff in the correct interpretation of the electronic fetal monitor strips (what good is this great piece of equipment if the nurses aren’t properly trained to read the strips?
- Failure to respond to common complications like a larger baby than expected or an unexpected shift in baby’s position.
- Other complications, which the medical staff should be prepared to diagnose and treat include:
- Bleeding, fetal distress, or lack of oxygen experienced by mother or infant
- Umbilical cord entrapment or compression
- Prolonged labor
- Breech presentation of the baby
- Fetal distress
- Delay in decision to do cesarean section
- Use / misuse of vacuum extractor or forceps
- Delay in recognizing or treating infections like bacterial meningitis and viral encephalitis
- Excessive water retention and weight gain by mother
- Shoulder dystocia
What types of things do you evaluate in determining whether my child has suffered a birth injury due to a delay in delivery?
Many factors may suggest that your baby’s injuries were caused by a delay in delivery:
- Poor APGAR scores (these are scores assigned within the first 10 minutes of the baby’s birth and evaluate the baby’s color, respirations, muscle tone, heart rate and response to stimulation — a perfect score is 10 — lower scores often signify a problem during the delivery)
- Low umbilical cord blood gases
- Blue skin color of the baby
- Meconium (meconium is the baby's feces that can be excreted into the amniotic fluid if the baby is under significant stress) on the baby’s body or in the amniotic fluid after delivery
- Seizures within the first few days after birth
- Placing a full-term baby in the Intensive Care Unit (NICU)
- An emergency Cesarean Section (C-Section)
- A baby who has poor muscle tone
- Baby needs resuscitation after birth
- Baby is not delivered within 24 hours of water breaking
What should I do if I believe my child’s injuries were due to medical malpractice?
As soon as you suspect that negligence may be the cause your baby’s birth injury, you should contact us ASAP so that we may promptly evaluate your case. You can E-mail us directly at [email protected] , call us at 800-ZIFFLAW (943‑3529), or fill out the Contact Form on this website. There is no charge for the consultation and if after consulting with us, you choose not to pursue any action or choose not to hire us, we will respect your decision. Accordingly, you have nothing to lose by consulting with us now. The reason we would like to speak with you ASAP is that it is necessary to gather facts and evidence as early possible in these cases because they can be very difficult and it can take a significant period of time to thoroughly investigate a case and hire the necessary experts.
How much does it cost to have you evaluate my medical malpractice claim?
We do not charge any fee for our time spent evaluating your possible medical malpractice claim. That’s right, no attorney’s fee despite the fact that we often spend considerable time carefully your reviewing records and the applicable medical literature. We usually request that our client’s obtain complete copies of the medical records for our review but if we are required to obtain the records for you we do not charge for our time in doing so but we do ask that we be reimbursed for the copying costs we are charged by the medical provider. Of course, the medical records are yours to keep. In the event that our initial review of the records suggests that you might have a viable malpractice case, we will sit down with you to discuss the next steps in evaluating your case. Usually this involves a review by one or more experts who will be asked to render an opinion regarding whether or not your medical providers complied with the applicable standard of care. The costs of obtaining expert evaluation will be discussed with you and an agreement reached on whether those costs will be advanced by you or by our firm on your behalf. Those decisions are made on a case-by-case basis depending upon many factors including your own personal finances, the type of case, the anticipated expert’s cost, etc. As soon as you suspect that negligence may be the cause your baby’s birth injury, you should contact us ASAP so that we may promptly evaluate your case. You can E-mail us directly at [email protected] , call us at 800-ZIFFLAW (943‑3529), or fill out the Contact Form on this website. There is no charge for the consultation and if after consulting with us, you choose not to pursue any action or choose not to hire us, we will respect your decision. Accordingly, you have nothing to lose by consulting with us now.
Do you accept every medical malpractice or birth injury case you evaluate?
No. In fact, we generally review 20–30 cases for every case we accept. As we will explain in detail when we meet with you, medical malpractice cases are notoriously difficult and expensive to pursue and it is therefore impossible for us to accept every case we evaluate. Although it kills us, often we have to turn away cases of clear medical negligence because the injuries and damages are simply not substantial enough to justify the very high costs of litigating a medical malpractice lawsuit. Unfortunately, the medical malpractice insurance carriers in NY and PA have a policy of never, ever, ever resolving even clear cases of medical error early, so we are required to spend huge amounts of time and money fighting cases to the bitter (and expensive) end.
Have you been successful in handling new york and Pennsylvania medical malpractice cases?
At the risk of tooting our own horn — Yes, we have been very fortunate to have been very successful in handling medical malpractice cases in both New York and Pennsylvania. In addition to negotiating many substantial confidential settlements that we are prohibited from revealing, we have obtained multi-million dollar recoveries on behalf of many of our clients. For instance, Attorney Jim Reed alone has a great track record of multi-million dollar recoveries: $2,400,000, $2,000,000, $1,625,000, $1,400,000, etc. You can read about these results and others on Our Results page. Of course, we know all too well that whatever great results you achieved yesterday means nothing today so we cannot rest on our past successes. Accordingly, we continue to come to work early, stay late, hire the best experts in the country and work our cases as hard as possible.
How do you decide if there has been medical negligence in the delivery of my baby?
There are several tools that birth injury attorneys use to prove that an injury was caused by negligence or carelessness. An experienced lawyer will closely observe and investigate every aspect of your pregnancy and childbirth. He or she will carefully study the medical records, including neonatal records, the fetal heart monitor strip, newborn records, and your labor and delivery records. Also, copies of imaging studies performed on the child, including ultrasounds, CT scans, or MRIs of the head should be carefully studied. Any deviation from the standard of care is an indication that negligence has occurred. Typical things we are looking for include:
- Fractures or broken bones
- Intracranial hemorrhage — bleeding in the baby’s brain
- Spinal cord trauma
- Cranial nerve trauma
- Swelling, bleeding, bruising, or discoloration of the scalp
- Depressed skull fractures
- Bruising/forceps marks on the head
- Facial paralysis
- Temporary body paralysis
- Group B strep infections
- Spasticity — a condition in which certain muscles are continuously contracted