A Complete Guide to Birth Injury Lawsuits in New York

When a birth injury changes your family’s life, understanding your legal rights isn’t just about compensation. It’s about securing the resources your child will need for years to come, holding negligent parties accountable, and finding answers about what happened during delivery.

New York has some of the most comprehensive protections for families affected by birth injuries, including unique programs that provide lifetime medical coverage. But the legal landscape is complex, with strict deadlines and specific requirements that can make or break your case.

This guide walks through everything you need to know about birth injury lawsuits in New York, from the medical malpractice framework to the state’s Medical Indemnity Fund, a program that exists nowhere else in the country.

How Long Do You Have to File a Birth Injury Lawsuit in New York?

Time limits matter enormously in birth injury cases. Miss a deadline, and you may lose the right to pursue compensation entirely, regardless of how strong your case might be.

The Standard Medical Malpractice Timeline in New York

New York requires that medical malpractice lawsuits be filed within 2 years and 6 months from the date of the negligent act. This timeline is established under CPLR § 214-a and applies to most medical malpractice claims, including those involving birth injuries.

The clock typically starts ticking from the date of delivery or the medical error that caused the injury. If treatment continued for the same condition, the timeline may begin from the last date of treatment instead.

Extended Time Limits for Birth Injury Cases Involving Children

New York recognizes that infants cannot file lawsuits on their own behalf, so the law provides additional time through what’s called “tolling” of the statute of limitations under CPLR 208.

Here’s how it works: The statute of limitations doesn’t begin running until the child turns 18. However, this extension is capped at 10 years from the date the injury occurred. This 10-year maximum was added in 1975 as part of comprehensive medical malpractice reform.

In practical terms, this means:

• If your child was injured during birth, you generally have until their 10th birthday to file a lawsuit
• The 2.5-year standard timeline still applies to parents seeking compensation for their own damages
• Even with the extension, waiting too long can make evidence harder to gather and witnesses harder to locate

Special Rule for Foreign Objects Left During Delivery

New York law includes a unique exception when a foreign object is left in the body during a medical procedure. In these cases, you have 1 year from discovering the object (or from when you reasonably should have discovered it) to file a lawsuit.

However, the definition of “foreign object” is narrow and doesn’t include chemical compounds, fixation devices, or prosthetic aids. In birth injury contexts, this might apply to surgical instruments accidentally left during a cesarean section.

Notice Requirements When Suing Public Hospitals

If your child was born at a public hospital (such as any of the NYC Health + Hospitals facilities), an additional requirement applies. You must file a notice of claim within 90 days after the injury occurs, as required by General Municipal Law § 50-e.

This 90-day deadline is extremely strict and applies before you file the actual lawsuit. Missing this deadline can completely bar your claim against a public hospital, even if you’re still within the general statute of limitations.

What You Need to File a Birth Injury Lawsuit in New York

New York has specific procedural requirements designed to prevent frivolous medical malpractice lawsuits while still protecting legitimate claims. Understanding these requirements early can help you move forward effectively.

The Certificate of Merit Requirement Explained

Under CPLR 3012-a, anyone filing a medical malpractice lawsuit in New York must include a certificate of merit when filing the complaint. This is a sworn statement from your attorney declaring that:

• The attorney has reviewed the facts of your case
• The attorney has consulted with at least one physician licensed in New York or another state who has relevant expertise
• Based on this consultation, there is a reasonable basis for filing the lawsuit

This requirement serves as a preliminary screening mechanism. It ensures that an actual medical professional has reviewed the case and believes the claim has merit before litigation begins.

What Happens If You Can’t Get a Certificate of Merit in Time

Sometimes the statute of limitations is about to expire, but you haven’t yet been able to complete the consultation with a medical expert. New York law provides a safety valve: you can file your lawsuit without the certificate and then have 90 days after serving the complaint to file the required certificate.

This grace period allows families to protect their legal rights while still completing the necessary expert review.

Consequences of Failing to File the Certificate

Failure to file a certificate of merit can result in dismissal of your lawsuit. However, courts often give plaintiffs an opportunity to correct this deficiency rather than immediately throwing out the case. Still, it’s far better to comply with the requirement from the start than to risk dismissal and the associated delays.

What You Must Prove in a Birth Injury Medical Malpractice Case

Not every birth injury results in legal liability. Even when an injury occurs during delivery, healthcare providers are only responsible if they failed to meet the appropriate standard of care. Understanding what you must prove helps set realistic expectations about your case.

The Medical Standard of Care and How It’s Determined

The foundation of any medical malpractice claim is proving that the healthcare provider departed from accepted community standards of practice. This doesn’t mean the provider made the wrong decision in hindsight. It means the provider failed to do what a reasonably competent physician would have done under similar circumstances.

In obstetrics, these standards come from multiple sources:

• Clinical practice guidelines published by professional organizations like the American College of Obstetricians and Gynecologists (ACOG)
• Hospital protocols and policies
• Medical literature and research
• Common practices among similarly situated healthcare providers

The standard of care isn’t about perfection. Medicine involves judgment calls, and not every bad outcome indicates negligence. What matters is whether the provider’s actions fell below the minimum acceptable standard.

Proving Your Healthcare Provider’s Actions Caused the Injury

Even if you can show that a healthcare provider deviated from the standard of care, that’s not enough. You must also prove causation: that this deviation directly caused your child’s injury.

This is often the most challenging element in birth injury cases. Many conditions that affect newborns have multiple potential causes. Cerebral palsy, for example, can result from oxygen deprivation during delivery, but it can also develop from prenatal infections, genetic factors, or complications that occur after birth.

Your legal team must establish that, more likely than not, the healthcare provider’s negligence was a proximate cause of the specific injuries your child suffered.

Why Expert Medical Testimony Is Essential in Almost Every Case

Birth injury cases are medically complex. Juries don’t inherently know what standard of care applies during a complicated delivery or how shoulder dystocia should be managed. That’s why expert medical testimony is required in virtually all birth injury malpractice cases.

A qualified medical expert must:

• Explain the accepted standards of practice for the situation
• Identify how the defendant’s conduct deviated from those standards
• Connect those deviations to the injuries the child sustained

There’s a narrow exception for cases where the negligence is so obvious that lay jurors don’t need expert guidance (like operating on the wrong patient), but this rarely applies in birth injury cases given their medical complexity.

The credibility and qualifications of your medical experts can make or break your case. Courts pay close attention to whether experts have relevant experience, current knowledge of obstetric practices, and proper credentials.

Common Types of Birth Injury Claims Filed in New York

While every birth injury case is unique, certain patterns of negligence appear repeatedly in New York litigation. Understanding these common claims can help you recognize whether the care during your child’s delivery may have fallen short.

Failure to Diagnose Fetal Macrosomia and Large Baby Size

Fetal macrosomia, the medical term for an abnormally large baby (typically over 8 pounds, 13 ounces), significantly increases the risk of birth complications. When healthcare providers fail to recognize or properly respond to a large baby, serious injuries can result.

Common claims include:

• Failing to order ultrasounds to estimate fetal weight when risk factors are present
• Not recognizing that maternal diabetes increases macrosomia risk
• Proceeding with vaginal delivery despite clear indicators that cesarean delivery would be safer
• Inadequate preparation for potential shoulder dystocia

Delayed or Failure to Perform Cesarean Section When Medically Necessary

Deciding when to perform a cesarean section involves balancing multiple factors, but clear medical indications require timely action. Delays in performing a medically necessary cesarean can deprive a baby of oxygen, leading to brain damage.

These claims often involve:

• Ignoring signs of fetal distress on monitoring strips
• Failing to recognize that labor has arrested and isn’t progressing
• Delaying cesarean despite evidence of placental abruption or umbilical cord problems
• Poor communication between nursing staff and physicians about concerning developments

According to ACOG guidelines, active phase arrest of labor is defined as no cervical dilation progress for 4 hours with adequate contractions or 6 hours with inadequate contractions despite oxytocin augmentation. When these criteria are met, cesarean delivery is typically recommended.

Improper Management of Shoulder Dystocia Leading to Nerve Damage

Shoulder dystocia occurs when a baby’s shoulder becomes stuck behind the mother’s pelvic bone after the head has already delivered. It’s an obstetric emergency requiring immediate and proper intervention.

When managed improperly, shoulder dystocia can cause brachial plexus injuries (including Erb’s palsy), where the network of nerves controlling the arm and hand is damaged, sometimes permanently.

Claims in this area focus on:

• Excessive traction or pulling on the baby’s head and neck
• Failure to promptly employ appropriate maneuvers (McRoberts position, suprapubic pressure)
• Not calling for assistance quickly enough
• Lack of preparation despite risk factors suggesting shoulder dystocia was likely

ACOG guidelines emphasize that when shoulder dystocia occurs, specific sequential maneuvers should be employed, and excessive force should never be applied to the baby’s head.

Failure to Properly Monitor Fetal Heart Rate and Recognize Distress

Continuous fetal heart rate monitoring during labor is standard practice precisely because it can reveal when a baby isn’t tolerating labor well. Patterns on the monitor indicate whether the baby is getting adequate oxygen.

These cases typically involve:

• Failure to continuously monitor when medically indicated
• Misinterpreting monitoring strips or missing concerning patterns
• Not responding appropriately when non-reassuring patterns appear
• Inadequate communication between nurses monitoring the strips and physicians making delivery decisions

When monitoring reveals Category II or Category III fetal heart tracings (indicating possible or likely oxygen deprivation), immediate intervention is often necessary.

Birth Injuries Caused by Oxygen Deprivation

Hypoxic-ischemic encephalopathy (HIE) occurs when a baby’s brain doesn’t receive enough oxygen and blood flow during delivery. This can result in cerebral palsy, developmental disabilities, seizure disorders, and other permanent neurological conditions.

Claims involving HIE often center on:

• Failure to recognize and respond to fetal distress
• Mismanagement of umbilical cord complications (prolapse, nuchal cord)
• Delayed response to placental abruption or uterine rupture
• Failing to resuscitate the baby properly immediately after birth

The severity of HIE is typically classified on a scale from mild to severe, with more severe cases involving profound and permanent disabilities.

Improper Use of Forceps or Vacuum Extraction During Delivery

Operative vaginal delivery using forceps or vacuum extractors can be medically appropriate, but only when specific criteria are met and the instruments are used correctly. Improper use can cause skull fractures, brain bleeds, and nerve damage.

These claims focus on:

• Using instruments when contraindications exist (such as certain fetal positions)
• Applying excessive force or traction
• Too many attempts at extraction before switching to cesarean
• Failing to abandon operative delivery when it’s clearly not working

ACOG guidelines specify criteria that must be met before attempting operative vaginal delivery, including assessment that the procedure has a reasonable chance of success.

Lack of Informed Consent for Delivery Methods and Associated Risks

Pregnant women have the right to make informed decisions about their care, including understanding the risks and benefits of different delivery methods. When healthcare providers fail to adequately explain risks or don’t obtain proper consent, this can form the basis of a claim.

These cases might involve:

• Not discussing the risks of vaginal birth after cesarean (VBAC) attempts
• Failing to explain why a cesarean might be recommended
• Not disclosing a physician’s or hospital’s complication rates
• Pressuring a patient toward a particular delivery method without full disclosure

While informed consent claims alone rarely succeed in birth injury cases, they often accompany other negligence allegations.

What Compensation Is Available in New York Birth Injury Cases

The financial impact of a serious birth injury can be staggering, with medical costs and care needs extending throughout a child’s lifetime. Understanding what damages you can recover helps ensure your child has the resources necessary for proper care and quality of life.

Economic Damages That Cover Medical Expenses and Care Costs

Economic damages compensate for actual financial losses, both past and future. In birth injury cases, these typically include:

Medical expenses: Hospital bills, surgeries, medications, medical equipment, and all treatment costs related to the injury

Future medical care: Projected lifetime costs of ongoing medical treatment, therapy, and interventions

Custodial and nursing care: In-home care assistance or facility-based care when the child requires constant supervision or help with daily activities

Home and vehicle modifications: Costs to make homes wheelchair-accessible, install specialized equipment, or modify vehicles for medical transport

Assistive technology and equipment: Specialized communication devices, mobility equipment, and adaptive technology

Lost earning capacity: Compensation for the child’s reduced ability to earn income as an adult due to disabilities

Educational expenses: Costs of special education, tutoring, or specialized schooling beyond what’s publicly available

These damages are calculated based on detailed life care plans prepared by medical experts who assess all the child’s future needs and their associated costs.

Non-Economic Damages for Pain and Suffering

Beyond financial losses, New York law allows recovery for non-economic damages, including:

Pain and suffering: Compensation for physical pain the child has experienced and will continue to experience

Loss of enjoyment of life: The child’s inability to participate in activities and experiences that make life meaningful

Emotional distress: Psychological suffering resulting from the injury

Disability and disfigurement: The impact of permanent physical limitations or appearance changes

These damages recognize that birth injuries affect quality of life in ways that can’t be captured on a medical bill. Juries determine appropriate amounts based on the severity of the injury, the child’s life expectancy, and the overall impact on their life.

New York Has No Caps on Damages in Birth Injury Cases

Unlike many states, New York does not impose caps on damages in medical malpractice cases. Some states limit non-economic damages to $250,000 or $500,000, regardless of injury severity. New York allows juries to award whatever amount they determine is appropriate based on the evidence.

While legislative proposals to cap non-economic damages at $250,000 have been introduced, none have been enacted into law. This means families in New York can receive full compensation reflecting the true extent of their child’s injuries.

This lack of caps is one reason New York sees some of the largest birth injury verdicts and settlements in the nation.

Settlement Amounts and Jury Verdicts in New York Birth Injury Cases

New York consistently leads the nation in medical malpractice payouts. From 2009 to 2018, medical malpractice awards in New York totaled $7 billion, nearly double Pennsylvania’s $3.4 billion (the second-highest state). In 2022 alone, awards reached $551 million.

Birth injury cases represent a significant portion of these high-value claims. Notable New York birth injury verdicts and settlements include:

• $103 million for cerebral palsy and brain damage
• $90.9 million for birth-related brain injury
• $41.7 million for forceps-related skull fractures and brain damage
• $34.8 million for premature birth resulting in cerebral palsy
• $33.8 million for vacuum extraction-related brain damage

The average birth injury settlement is estimated at approximately $1 million, though this figure varies dramatically based on injury severity. Cases involving mild, temporary injuries settle for far less, while cases with permanent, severe disabilities often result in multi-million dollar awards.

Several factors influence settlement and verdict amounts:

Severity of injury: Profound disabilities requiring lifetime care result in higher awards than temporary injuries

Life expectancy: Younger children with normal life expectancies need more years of care, increasing economic damages

Strength of evidence: Clear evidence of negligence and causation leads to higher settlements as defendants face greater trial risk

Quality of life impact: Injuries that prevent independence and normal life experiences increase non-economic damages

Defendant’s resources: Hospital systems and insured physicians typically have more resources than individual practitioners

The New York Medical Indemnity Fund Provides Lifetime Healthcare Coverage

New York operates a unique program that provides lifetime medical coverage for children with the most severe birth injuries. The Medical Indemnity Fund exists nowhere else in the country and can be a critical resource for families.

What Is the New York Medical Indemnity Fund and Why Was It Created

Established in 2011 under Public Health Law Article 29-D, the New York State Medical Indemnity Fund serves two purposes:

1. Provide comprehensive healthcare coverage for children with severe birth-related neurological injuries throughout their lives
2. Reduce medical malpractice insurance costs by removing future medical expenses from malpractice payouts

The Fund was created during a period when rising malpractice insurance premiums were causing physicians to leave New York or stop practicing high-risk specialties like obstetrics. By covering ongoing medical costs through the Fund rather than through individual malpractice claims, the state aimed to stabilize the insurance market while ensuring injured children receive necessary care.

Which Children Qualify for Medical Indemnity Fund Coverage

Not all birth injuries qualify for the Fund. Eligibility is limited to children who meet specific criteria:

Birth-related neurological injury defined as:

• Injury to the brain or spinal cord of a live infant
• Caused by oxygen deprivation or mechanical injury during labor, delivery, or resuscitation immediately following delivery
• Resulting in permanent and substantial motor impairment or developmental disability

Legal requirement:

• A New York court has found (through jury verdict or court decision) that the injury resulted from medical malpractice, OR
• The family settled a medical malpractice lawsuit or claim and a court ordered enrollment in the Fund

The injuries covered by the Fund are typically the most severe cases: children with profound cerebral palsy, significant cognitive disabilities, or other permanent neurological conditions requiring extensive, lifelong medical care.

As of 2017, the Fund covered approximately 455-500 children, though enrollment was temporarily suspended in 2024 due to funding concerns before emergency appropriations allowed it to reopen.

What Medical Expenses and Services Does the Fund Cover

Once enrolled, children receive coverage for “qualifying health care costs,” which include:

• Medical, hospital, surgical, and nursing care
• Dental services
• Rehabilitation and habilitation services
• Custodial care and respite care (up to 1,080 hours per year, with additional hours available through prior approval)
• Durable medical equipment
• Environmental home modifications (ramps, bathroom modifications, etc.)
• Assistive technology devices
• Vehicle modifications to accommodate medical equipment or wheelchairs
• Transportation to healthcare appointments
• Prescription medications and over-the-counter medications when prescribed by a physician
• Psychological services, social work, nutritional counseling, and chiropractic care

Notably, the Fund does not provide cash payments for pain and suffering, lost wages, or other non-medical damages. Those types of compensation come through the underlying malpractice settlement or verdict.

How Much the Medical Indemnity Fund Pays Healthcare Providers

Payment rates matter because they affect whether providers will accept Fund patients. As of 2017-2019 amendments to the law, services are paid at the usual and customary rate, defined as the 80th percentile of all charges for the same service in the same geographical area.

If usual and customary rates aren’t available for a particular service, the Fund pays the greater of 130% of Medicaid rates or 130% of Medicare rates.

These payment rates are generally higher than Medicaid, making it more likely that quality healthcare providers will accept children enrolled in the Fund.

Financial Status and Sustainability Concerns of the Fund

The Medical Indemnity Fund faces significant financial challenges. As of the end of 2016:

• The Fund held approximately $162.2 million in assets
• It made over 15,000 claims payments in 2016
• The estimated unfunded liability was $575 million, projected to grow to $2.33 billion over 10 years

The Fund receives an annual appropriation of $52 million from Health Care Reform Act pools, but this has proven insufficient to meet growing obligations.

By law, if estimated liabilities equal or exceed 80% of the Fund’s assets, enrollment must be suspended until additional deposits bring liabilities below the threshold. This trigger was hit in spring 2024, causing the Fund to stop accepting new enrollments temporarily. Emergency funding was eventually allocated to address the crisis, but the episode highlighted the Fund’s precarious financial situation.

For families considering enrollment, the Fund’s financial instability is a concern, though the state has historically stepped in to maintain the program given its importance to both families and the medical malpractice system.

Medical Standards That Define Proper Care During Labor and Delivery

Understanding what constitutes appropriate medical care helps identify when negligence may have occurred. Professional guidelines from organizations like the American College of Obstetricians and Gynecologists (ACOG) often establish the standards against which healthcare providers are judged.

Guidelines for Normal Labor Progression and When Intervention Is Needed

ACOG has established specific definitions for normal labor progression and when delays require intervention:

Active phase of labor begins at 6 centimeters of cervical dilation. Before this point, slower progress is normal and generally doesn’t indicate a problem.

Active phase arrest (labor that has stopped progressing) is defined as:

• No cervical dilation for 4 hours despite adequate contractions, OR
• No cervical dilation for 6 hours despite inadequate contractions plus oxytocin augmentation

When active phase arrest occurs, cesarean delivery is typically recommended, though the specific situation may warrant other approaches.

Prolonged second stage (the pushing phase) is defined as:

• More than 3 hours of pushing for first-time mothers without epidural (4 hours with epidural)
• More than 2 hours of pushing for mothers who’ve given birth before without epidural (3 hours with epidural)

These timeframes aren’t absolute cutoffs but rather points at which healthcare providers should carefully evaluate whether continued labor is safe or whether intervention is needed.

How Shoulder Dystocia Should Be Managed to Prevent Injury

Shoulder dystocia is an unpredictable emergency, but established protocols can minimize the risk of injury when it occurs. ACOG and other professional organizations recommend:

Preventive measures:

• Perineal massage and warm compresses during the second stage reduce severe perineal tears, which can complicate maneuvers
• Recognition of risk factors (maternal diabetes, fetal macrosomia, previous shoulder dystocia) should heighten preparedness

When shoulder dystocia occurs:

• Call for help immediately (additional physicians, nurses, anesthesiologist)
• Do not apply excessive traction to the baby’s head
• Employ sequential maneuvers: McRoberts position (hyperflexing mother’s legs), suprapubic pressure, internal maneuvers to rotate the baby
• Document timing and maneuvers used

The key principle is that pulling hard on the baby’s head causes brachial plexus injuries. Instead, proper positioning and maneuvers create space for the shoulder to release.

When Cesarean Delivery Is Medically Indicated According to ACOG

ACOG guidelines identify situations where cesarean delivery is recommended:

• Active phase arrest of labor (as defined above)
• Prolonged second stage without progress
• Non-reassuring fetal heart rate patterns that don’t improve with intervention
• Placental abruption (premature separation of the placenta)
• Cord prolapse (umbilical cord drops into the birth canal ahead of the baby)
• Certain fetal presentations (transverse lie, some breech positions)
• Some cases of maternal medical conditions or previous uterine surgeries

Before performing cesarean for second-stage arrest, providers should assess whether operative vaginal delivery (forceps or vacuum) might be successful, considering factors like fetal station and position.

The decision to perform cesarean delivery always involves balancing maternal and fetal risks, but when clear indications exist, delays can lead to preventable injuries.

Taking the Next Step When You Suspect Medical Negligence

If your child suffered a birth injury and you believe medical negligence may have played a role, time is limited. While the emotional and practical demands of caring for an injured child are overwhelming, protecting your legal rights requires action within specific deadlines.

Consider consulting with an attorney who specializes in birth injury cases in New York. An initial consultation can help you understand whether your case has merit, what evidence would be needed, and what timeline you’re working with.

Most birth injury attorneys work on contingency, meaning you don’t pay attorney fees unless you recover compensation. This arrangement makes legal representation accessible even when families are already facing financial strain from medical expenses.

Beyond legal action, connect with support resources. Medical Indemnity Fund enrollment (if your child qualifies) can provide lifelong healthcare coverage. Early intervention programs, special education services, and family support organizations can help you navigate the practical challenges of caring for a child with special needs.

A birth injury changes everything, but you don’t have to face it alone. Understanding your rights and options is the first step toward securing the resources your child needs and the accountability your family deserves.