What to Know Before Filing a Birth Injury Lawsuit in Florida

Florida has the third-highest number of medical malpractice cases in the US. In 2022, there were 1,668 cases in the state. Compare that to California’s 2,074 cases and Texas’ 1,903 cases.

A birth injury lawsuit is one of the more devastating medical malpractice claims. Birth injury lawsuits arise when delivery doctors fail to adhere to medical standards of care, resulting in injury to a newborn.

For some parents, their newborns pass away from these injuries. Others are luckier, but they may end up with hundreds of thousands of dollars in hospital bills for their child’s treatment.

Was your newborn injured due to a doctor’s negligence? If so, you may have a medical malpractice claim on your hands. Keep reading to understand the facts about birth injury cases before you file.

What Is a Birthing Injury?

According to Stanford Medicine Children’s Health, a birth injury occurs during the birthing process. It may be a result of complicated labor and delivery or the delivery doctor’s negligence.

Some of the most common causes of birthing injuries include the baby’s size, the size and shape of the mother’s pelvis, the mother’s weight, and breeching. Difficult or prolonged labor can also increase the risk of birthing injuries.

Birthing injuries can lead to a variety of disorders. Brachial palsy, facial paralysis, cephalohematoma, and cerebral palsy are all common birth injuries. Sadly, birthing injuries can even lead to a newborn’s death.

Signs of Birthing Injuries

Birth injuries may cause signs and symptoms to emerge directly after birth. However, others may take longer to develop. Some of the earliest signs of a birthing injury are:

• Crying with an arched back
• Excessive drooling
• Trouble eating or suckling
• Low heart rate
• Seizures
• Light sensitivity
• Reflex issues
• Excessive high-pitched crying
• Facial nerve paralysis
• Curling the hand
• Muscle rigidity

Delayed symptoms of birthing injuries may start to show up as missed developmental milestones. For example, your child may not develop speech, learn to walk, or use eating utensils as soon as other children or even at all.

The latest symptoms to emerge include difficulty getting dressed without help or trouble running. Children with birthing injuries may develop autism or epilepsy. They may have difficulty with repetitive motions or struggle to understand speech.

All of these issues can lead to significant disabilities for the child’s lifetime. That means high medical bills for parents, as well as considerable stress from caring for a child with physical or cognitive disabilities.

What Is Medical Malpractice?

Doctors have a duty of care to their patients. When they fail to maintain that duty of care, their inaction can lead to patient injuries. Some of the most common actions and inactions leading to medical malpractice are:

• Failing to train staff
• Not monitoring the newborn’s vitals
• Insufficient oxygen during delivery
• Improper medication administration
• Misuse of hospital equipment (e.g., forceps)
• Not following birthing standards

Of course, some birthing injuries can occur without medical malpractice. For example, premature babies and babies weighing over 8 pounds 13 ounces are more likely to suffer birthing injuries.

Four elements must be present to prove that the delivery doctor’s negligence caused an infant’s birthing injury. They include a duty of care and a breach of that duty of care.

Victims’ families must also prove causation or that the doctor’s negligence directly or indirectly caused the newborn’s injury. There must also be actual damages present or costs the victim’s family incurred due to the injury.

Birthing Injury Lawsuit Statute of Limitations

The statute of limitations for medical malpractice claims is two years in Florida. That means victims must file a lawsuit within two years of the date of the event that caused the injury. Failing to file means you can never recover damages.

Unfortunately, this limited timeline makes it challenging if the newborn’s injuries show up later in life. Some birth injuries can take months or even years to show up.

For example, say the doctor’s error led to a cognitive injury. The child may develop normally until they are one or two years old. Then, they may show signs like trouble speaking or difficulty crawling.

Some symptoms may not show up until the child is of school age. Parents may not realize their child is behind developmentally until they enroll them in daycare or school.

The good news is that Florida’s medical malpractice laws make room for situations like these. Parents who discover signs of a birth injury later in life have two years from the date they found the injury to file a lawsuit.

Tony’s Bill

Tony’s Bill is a law that affects Florida children born after July 1st, 1996. The law states that victims can file a birthing injury lawsuit at any point before the child turns eight.

There is one exception. Parents who could have “reasonably” discovered the birthing injury before their child turned eight will not receive this extended statute of limitations.

Of course, defining “reasonably” can be challenging. That’s why parents who suspect their child is suffering the consequences of a birthing injury should speak to an experienced medical malpractice lawyer ASAP.

Birth Injury Compensation

Parents of birthing injury victims seek damages in medical malpractice claims. Damages you can claim in a Florida medical malpractice claim include:

• Current and future medical expenses
• Costs for home or lifestyle adjustments to accommodate the child’s disability
• Pain and suffering
• Lost wages
• Costs for current and future childcare

In rare cases, punitive damages may also be available. Punitive damages are non-compensatory. That means they don’t pay the victim back for any current or future expenses.

Instead, judges order punitive damages specifically to punish the negligent medical provider. Punitive damages are available in cases where the defendant was particularly careless.

An important note is that a recent change to personal injury laws placed a $500,000 cap on certain medical malpractice compensation. Specifically, there is now a limit to how much victims can collect in non-economic damages.

Non-economic damages are those that do not compensate the victim for financial losses. Things like pain and suffering or mental anguish fall into this category.

NICA

NICA is an acronym for the Florida Birth-Related Neurological Injury Compensation Association. The association provides an alternative for victims seeking birthing injury compensation.

Instead of filing a lawsuit, qualifying families can file a claim with NICA. NICA provides compensation of up to $250,000. Additionally, the association pays all medically necessary expenses for the rest of the injured child’s life.

Of course, there is a catch. Only certain types of birthing injuries qualify for this program. You must also meet all of the following criteria to apply for NICA compensation:

• You gave birth in a Florida hospital
• Your child suffered a brain or spinal cord injury
• The brain or spinal cord injury resulted from oxygen deprivation or mechanical injury
• The injury occurred during labor, delivery, resuscitation, or post-delivery
• Your child sustained permanent, significant mental or physical disabilities from the injury
• The delivery doctor participates in the NICA program
• Your child weighed at least 5 pounds and 8 ounces (for a single pregnancy) or 4 pounds and 6 ounces (for multiple pregnancies)
• Your child’s disability came about as a direct or indirect result of the doctor’s negligence

Florida and Virginia are the only states in the US that use compensation programs like NICA. These programs are designed to reduce the insurance costs of doctors who receive multiple medical malpractice claims.

However, many families believe that compensation is not enough. If you want justice and to keep the negligent doctor from hurting other families like yours, a birth injury lawyer can help you file a medical malpractice claim.

How to Get Started With a Birth Injury Lawsuit

The first step with any birth injury lawsuit is to gather evidence. Medical records, lab results, and witness testimonials can help strengthen your case.

Once you’ve gathered the appropriate evidence, the next step is hiring a lawyer. But you don’t just want any lawyer to work on your case. You need an experienced medical malpractice attorney with a history of success in birth injury lawsuits.

80% of medical malpractice claims go to trial. That’s why you should also look for a trial-ready law firm like Newsome Melton.

Need a Birth Injury Lawyer in Orlando, FL?

If you suspect your child’s developmental delay or disability is due to the delivery doctor’s negligence, you may have a birth injury lawsuit on your hands. Florida’s birth injury laws allow parents like you to sue negligent doctors and recover the compensation you and your child deserve.

Are you searching for an attorney to fight for your family’s rights? The lawyers at Newsome Melton have expertise in medical malpractice, including birth injury claims. Contact us to schedule a free consultation and find out what your case may be worth.

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Frequently Asked Questions