When a birth injury occurs due to medical negligence, families face not only the emotional weight of their child’s condition but also the daunting task of navigating New York’s complex legal system. Understanding how birth injury settlements work can help families secure the resources needed for their child’s care and future.

New York has one of the most sophisticated birth injury compensation systems in the country, combining traditional medical malpractice law with unique programs like the Medical Indemnity Fund. This guide explains how settlements work, what families can expect, and the mechanisms designed to ensure children receive the care they need.

New York’s Time Limits for Filing Birth Injury Claims

One of the most critical aspects of pursuing a birth injury case is understanding the strict deadlines that govern when you can file a claim.

Standard Statute of Limitations for Medical Malpractice

In New York, medical malpractice claims must generally be filed within two years and six months from when the negligent act occurred or from the last treatment if there was continuous care for the same condition. This relatively short window means families need to act promptly once they suspect malpractice.

Special Rules That Apply to Birth Injury Cases Involving Children

Birth injury cases have unique timing rules because they involve minors. Under New York law, the statute of limitations is “tolled” during childhood, meaning the clock doesn’t start running until the child turns 18. At that point, the injured person has three years to file a lawsuit.

However, there’s a critical limitation: regardless of the child’s age, any birth injury lawsuit must be filed within ten years of when the injury occurred. This means parents must take action within ten years of their child’s birth, even though their child technically has until age 21 to file.

This ten-year cap serves as an absolute deadline that cannot be extended, making it essential for families to consult with an attorney well before this period expires.

Additional Requirements When Birth Injuries Occur at Public Hospitals

If your child was injured at a public hospital or government facility, including any NYC Health + Hospitals location, additional requirements apply that significantly shorten your timeline.

You must file a Notice of Claim within just 90 days of the injury. This formal document notifies the government entity of your intent to pursue a claim. After filing the Notice of Claim, you have only one year and 90 days from the date of injury to actually commence your lawsuit.

Missing these deadlines can permanently bar your claim, regardless of how serious the injury or how clear the negligence. This makes immediate consultation with an attorney absolutely essential when birth injuries involve public facilities.

The Certificate of Merit Requirement in New York Birth Injury Cases

Before proceeding with a birth injury lawsuit, New York requires an important preliminary step designed to prevent frivolous claims while preserving access to justice for legitimate ones.

Every medical malpractice complaint must be accompanied by a certificate of merit, signed by your attorney. This certificate confirms that the attorney has:

Thoroughly reviewed the facts of your case
Consulted with at least one qualified medical professional licensed in New York or another state
Determined there are reasonable grounds to believe malpractice occurred

The medical professional consulted must have expertise directly relevant to the specific medical issues in your case. For example, a birth injury case involving shoulder dystocia would require consultation with an obstetrician or maternal-fetal medicine specialist familiar with delivery complications.

This requirement serves as a gatekeeper, ensuring that cases filed have been vetted by someone with medical knowledge before consuming court resources and subjecting healthcare providers to litigation. From a practical standpoint, it also means your attorney begins building your case with expert support from the very beginning.

How Birth Injury Settlement Negotiations Actually Work

Birth injury settlement negotiations follow a predictable pattern, though the timeline and complexity vary significantly based on the severity of the injury and clarity of liability.

Initial Investigation and Evidence Gathering

The process begins with your attorney conducting a comprehensive investigation. This involves obtaining complete medical records from the pregnancy, labor, delivery, and all subsequent treatment. These records often span hundreds or thousands of pages and require careful review by both attorneys and medical experts.

Your attorney will also gather documentation of all damages, including medical bills, therapy costs, equipment purchases, proof of missed work, and evidence of developmental delays or permanent impairments. Photographs, videos, and testimony from family members help demonstrate the injury’s impact on daily life.

How Long Birth Injury Settlements Typically Take in New York

The timeline for birth injury settlements varies considerably:

Cases that settle before filing a lawsuit typically resolve within six months to one year. These are usually cases with clear liability and well-documented injuries where the insurance company recognizes its exposure.

Cases requiring litigation average three to four years from filing to resolution. Birth injury cases specifically can range from several months for less severe injuries to over two years for complex cases involving permanent disabilities.

Settlement negotiations themselves often take 12 to 18 months or longer when liability or the extent of damages is contested. Defendants may dispute whether the standard of care was breached, whether the breach caused the injury, or what damages are actually attributable to the birth injury versus other factors.

One reason birth injury cases take longer than other medical malpractice claims is that attorneys often wait until the child reaches “maximum medical improvement” or completes most treatment. This ensures a complete accounting of all medical costs, ongoing needs, and the full extent of any permanent impairments. Settling too early can leave families without compensation for needs that become apparent later.

Why Most Birth Injury Cases Settle Rather Than Go to Trial

Approximately 95% of birth injury lawsuits settle out of court. This high settlement rate reflects several realities:

Certainty versus uncertainty: Trials are unpredictable. Even strong cases can result in defense verdicts, while settlements provide guaranteed compensation.

Speed of compensation: Families often need resources immediately for therapies, equipment, and care. Trials can delay compensation by years, while settlements provide funds much sooner.

Emotional toll: Trials require families to relive traumatic experiences through testimony and can be emotionally exhausting.

Cost considerations: Both sides face substantial trial costs, including expert witness fees that can reach tens of thousands of dollars per expert.

Publicity concerns: Healthcare providers and hospitals typically prefer to avoid the public scrutiny of trials, making them more willing to negotiate reasonable settlements.

Settlements can occur at any stage—during pre-litigation negotiations, after filing but before trial, or even after trial has begun but before a verdict is reached.

Strict Payment Deadlines After Reaching a Birth Injury Settlement

Once parties agree on a settlement amount, New York law imposes strict timelines to ensure families receive their compensation promptly.

Under New York law, when a birth injury case is settled, the defendant must pay all amounts due within 21 days of receiving both a properly executed release and a stipulation discontinuing the legal action. This short timeframe prevents defendants from delaying payment after families have agreed to settle.

For settlements involving municipalities or public entities not indemnified by the state, the payment period extends to 90 days. However, this extended deadline doesn’t apply to insurance carriers for these entities, who must still comply with the standard 21-day requirement.

If defendants fail to make timely payment, the law provides a powerful remedy: plaintiffs can enter judgment against them without further notice for the settlement amount plus interest from the date the release was tendered, together with costs and disbursements. This provision gives real teeth to the payment deadline and discourages delay tactics.

Attorney Fees in New York Birth Injury Cases

New York medical malpractice attorneys work on a contingency fee basis, meaning payment depends on successfully recovering compensation. You don’t pay attorney fees unless your case results in a settlement or verdict.

How New York’s Sliding Scale Fee Structure Works

Unlike typical personal injury cases where attorneys might charge one-third of the recovery, New York imposes a specific sliding scale fee structure for medical malpractice cases that generally benefits plaintiffs by reducing fees as recovery amounts increase.

The statutory fee schedule limits contingency fees to:

30% of the first $250,000 recovered
25% of the next $250,000 recovered
20% of the next $500,000 recovered
15% of the next $250,000 recovered
10% of any amount over $1,250,000 recovered

These percentages are calculated on the net sum recovered after deducting expenses like expert testimony fees, investigative services, court costs, and other legitimate expenses incurred while pursuing the claim.

What This Fee Structure Means for Birth Injury Settlements

For a $2 million settlement, the attorney fee would be calculated as follows:

30% of $250,000 = $75,000 25% of $250,000 = $62,500 20% of $500,000 = $100,000 15% of $250,000 = $37,500 10% of $750,000 = $75,000 Total attorney fee: $350,000

This works out to 17.5% of the total recovery, significantly less than the one-third typical in other personal injury cases. For larger settlements, the percentage decreases even further.

This fee structure recognizes that birth injury cases often result in substantial recoveries and ensures that families retain a larger portion of settlements as amounts increase.

Structured Settlements and How Large Birth Injury Awards Are Paid

When birth injury cases result in large verdicts or settlements, New York law requires a specific payment structure rather than a single lump sum payment.

When Structured Settlements Are Required in New York

For verdicts exceeding $250,000 in future damages, New York law mandates structured settlements with periodic payments over time. This applies to both jury verdicts and settlements that receive court approval.

The structured judgment framework works as follows:

Lump sum payments are made for past damages already incurred, the first $250,000 of future damages, attorney’s fees related to past damages, and attorney’s fees related to the initial future damages payment.

Periodic payments cover the remaining future damages through an annuity contract that provides installment payments over time.

How Structured Settlement Annuities Work

The defendant or their insurance company purchases an annuity contract from a qualified insurer approved by New York’s Superintendent of Financial Services. This annuity generates periodic payments to the injured child over their lifetime or a specified period.

These annuities must provide for annual payments that increase by 4% each year, helping to offset inflation and ensure the purchasing power of future payments doesn’t erode over time.

An important protection for plaintiffs: juries award future damages without reducing them to present value. This means the jury determines what care will actually cost in the future, not what that amount is worth in today’s dollars. The periodic payment structure then ensures the plaintiff receives the full amount awarded.

The defendant must post security within 30 days after judgment is entered, guaranteeing that funds will be available for all future payments even if the defendant’s circumstances change.

Why Structured Settlements Benefit Families

While some families might prefer receiving all compensation immediately, structured settlements offer several advantages:

Guaranteed lifetime income: Payments continue for the child’s lifetime regardless of how long they live, eliminating the risk that funds might be exhausted.

Protection from mismanagement: Periodic payments prevent the possibility of funds being spent too quickly or invested unwisely.

Tax advantages: Structured settlement payments for physical injuries are generally tax-free, while lump sum investments would generate taxable income.

Inflation protection: The required 4% annual increase helps maintain purchasing power over decades.

Medicaid eligibility: Properly structured settlements can preserve eligibility for government benefits that might be lost with large lump sum payments.

The New York Medical Indemnity Fund Explained

New York created a unique compensation mechanism in 2011 that fundamentally changed how severe birth injuries are compensated: the Medical Indemnity Fund. This innovative program addresses the enormous future medical costs associated with birth-related neurological injuries.

What Birth Injuries Qualify for the Medical Indemnity Fund

To qualify for the fund, an injury must meet the legal definition of “birth-related neurological injury.” This means an injury to the brain or spinal cord of a live infant that was caused by:

Oxygen deprivation during labor, delivery, or resuscitation
Mechanical injury during these same periods
Other medical services provided or not provided during the delivery admission

The injury must have resulted in permanent and substantial motor impairment or developmental disability. This definition is intentionally specific, focusing on the most severe birth injuries that require lifelong care.

A “qualified plaintiff” is someone who has been found by a jury or court to have sustained a birth-related neurological injury as the result of medical malpractice, or who has settled their lawsuit involving such an injury, and has been ordered by a New York court to be enrolled in the fund.

Medical Expenses Covered by the Fund

The Medical Indemnity Fund pays for qualifying health care costs, which include:

Future medical, hospital, and surgical care
Nursing care and rehabilitation services
Habilitation services to develop new skills
Respite care to give primary caregivers breaks
Custodial care for daily living assistance
Durable medical equipment
Home modifications to accommodate disabilities
Assistive technology and communication devices
Vehicle modifications for transportation
Transportation to and from health care appointments
Prescription and non-prescription medications
Other health care costs necessary to meet the child’s needs

Benefits are determined by the child’s treating physicians, physician assistants, or nurse practitioners. Importantly, the fund does not require prior authorization for most services, removing administrative barriers to necessary care.

The fund cannot prevent qualified plaintiffs from receiving care that would be authorized under Medicaid, ensuring a baseline level of coverage.

How to Enroll in the Medical Indemnity Fund

Enrollment occurs when the plaintiff or authorized representative, upon providing notice to all defendants, makes an application to the fund administrator along with a certified copy of the judgment or court-approved settlement agreement.

Here’s a critical requirement: settlement agreements or judgments involving birth-related neurological injuries must include terms providing that future medical expenses will be paid from the fund as a condition of court approval. This means your attorney must structure the settlement properly from the beginning to allow fund enrollment.

The fund administrator reviews the application and determines whether the legal requirements have been met. Once enrolled, the child receives coverage for qualifying health care expenses for life.

How the Medical Indemnity Fund Changes Settlement Negotiations

The fund fundamentally changes the dynamics of birth injury settlements in cases involving severe neurological injuries.

Relief for defendants: The fund relieves defendants of all obligations to pay future medical costs. If a jury awards $10 million for future medical expenses, the defendant doesn’t pay that amount—the fund covers those expenses as they’re incurred. This can make defendants more willing to acknowledge liability and settle other aspects of damages.

Impact on settlement amounts: Because defendants know they won’t be responsible for potentially unlimited future medical costs, they may be more willing to pay higher amounts for pain and suffering, lost earning capacity, and other damages not covered by the fund.

Primary insurance still applies: The fund doesn’t relieve private insurers of their obligations. Private health insurance must pay first, and the fund covers costs that insurance doesn’t. This prevents double recovery while ensuring comprehensive coverage.

Limitations on coverage: The fund only covers injuries occurring during the delivery process. It doesn’t cover future medical expenses for injuries resulting from prenatal care or care provided before delivery admission.

From a practical standpoint, the Medical Indemnity Fund ensures that children with the most severe birth injuries receive the medical care they need throughout their lives without exhausting settlement funds, while also making the state’s medical malpractice system more sustainable.

Damages You Can Recover in New York Birth Injury Cases

Unlike many states, New York does not impose caps on damages in medical malpractice cases. This allows juries to determine compensation based on the actual circumstances of each case, which is particularly significant for birth injuries that often result in lifelong disabilities requiring extensive care.

Economic Damages Available in Birth Injury Cases

Economic damages compensate for financial losses that can be calculated with reasonable precision:

Past and future medical expenses include all costs of treating the birth injury, from initial hospitalization through a lifetime of care. This covers surgeries, hospitalizations, medications, medical equipment, and all therapeutic services.

Rehabilitation and therapy costs encompass physical therapy, occupational therapy, speech therapy, and specialized treatments that may continue for decades.

Home modifications might include wheelchair ramps, widened doorways, specialized bathrooms, or even entirely adapted living spaces for children with mobility impairments.

Equipment and assistive technology covers wheelchairs, communication devices, specialized beds, feeding equipment, and other tools needed for daily functioning.

Lost earning capacity compensates for the child’s inability to work and earn income in the future due to disabilities caused by the birth injury.

Parental lost wages can include compensation for income parents lost while caring for their injured child or managing medical appointments and therapies.

Non-Economic Damages in Birth Injury Cases

Non-economic damages compensate for losses that don’t have clear dollar values but profoundly impact quality of life:

Pain and suffering addresses the physical discomfort and suffering the child experiences due to their injuries.

Emotional distress compensates for psychological harm, anxiety, depression, or trauma resulting from the injury and its consequences.

Loss of enjoyment of life recognizes that the child cannot participate in normal childhood activities, form typical relationships, or experience life as they would have without the injury.

Loss of consortium may compensate family members for the loss of the normal parent-child relationship when severe disabilities prevent typical bonding and interaction.

New York juries have awarded substantial amounts for non-economic damages in severe birth injury cases, sometimes exceeding economic damages. Courts recognize that no amount of money can restore a child’s health, but compensation can acknowledge the profound losses families experience.

Important Limitations in Birth Injury Wrongful Death Cases

When a baby dies shortly after birth due to medical negligence, New York law severely restricts recoverable damages in ways that many families find shocking and unjust.

Only two categories of damages are available in newborn wrongful death cases:

Wrongful death damages are limited to future pecuniary loss to distributees. Courts have interpreted this to mean only the financial support the child would have provided to family members had they lived. For newborns who never worked or supported anyone, this typically results in very limited awards, often capped at approximately $75,000 to $150,000.

Conscious pain and suffering compensates for suffering the baby experienced before death. In many cases involving newborns who died shortly after birth, courts find this period was too short or the baby too compromised to have experienced compensable suffering, further limiting recovery.

This harsh reality means that wrongful death cases involving newborns often result in far lower compensation than cases where the child survives with injuries, even severe ones. Many advocates have called for reform of these outdated laws to better recognize the value of infant lives lost to negligence.

How Comparative Negligence Works in New York Birth Injury Cases

New York follows a pure comparative negligence system, which can affect recovery in birth injury cases when plaintiffs share some responsibility for the circumstances leading to injury.

Under this system, even if the mother contributed in some way to complications, recovery is not completely barred. Instead, damages are reduced proportionally by the plaintiff’s percentage of fault.

For example, if a mother went against medical advice regarding activity restrictions during a high-risk pregnancy, or failed to report concerning symptoms that might have prompted earlier intervention, a jury might assign some percentage of fault to her. If the jury determines she was 20% at fault and the healthcare providers were 80% at fault, and awards $5 million in damages, the actual recovery would be reduced to $4 million.

This system differs from contributory negligence states where any plaintiff fault completely bars recovery, and from modified comparative negligence states where plaintiffs cannot recover if they’re more than 50% at fault. New York’s pure approach allows recovery even if the plaintiff is more than 50% responsible, though recovery is always reduced by their fault percentage.

In practice, defendants rarely successfully argue that mothers share fault in birth injury cases. The standard of care requires healthcare providers to anticipate complications and manage them appropriately, even when patients make less-than-ideal choices. However, comparative negligence remains a potential defense that can affect settlement negotiations.

Confidentiality and Non-Disclosure Agreements in Birth Injury Settlements

Many birth injury settlements include confidentiality provisions that prevent parties from disclosing settlement terms or sometimes even the fact that a settlement occurred.

Why Healthcare Providers Require Confidentiality

Healthcare providers and hospitals typically insist on confidentiality provisions for several reasons:

Reputation protection: Public knowledge of large settlements can harm a provider’s reputation, even when the settlement doesn’t constitute an admission of wrongdoing.

Preventing copycat claims: Providers worry that publicized settlements might encourage similar claims from other patients.

Competitive concerns: Hospitals may not want competitors or the public to know about adverse outcomes at their facilities.

Insurance considerations: Insurers often prefer confidential settlements to avoid encouraging claims against other insureds.

When Families Might Prefer Confidentiality

Families sometimes also prefer confidentiality to protect their privacy regarding their child’s condition, avoid unwanted attention or advice, and shield their child from future stigma or questions about their disability.

Legal Limits on Confidentiality in New York

Confidentiality provisions negotiated between parties are generally enforceable in New York unless they violate public policy. The parties can agree to keep settlement amounts, case facts, and even the existence of the settlement confidential.

However, when cases involve multiple defendants and one defendant settles, non-settling defendants may seek disclosure of confidential settlement terms if they can demonstrate the information is material and necessary to prosecuting or defending the remaining claims. Courts balance the confidentiality interest against the need for relevant information, generally protecting confidentiality unless the requesting party shows genuine need beyond mere trial strategy.

The Public Policy Debate About Settlement Confidentiality

Confidential settlements in medical malpractice cases raise important public policy concerns. When settlements are secret, patterns of negligence by particular providers or institutions may remain hidden, potentially putting future patients at risk.

Some advocates argue that medical malpractice settlements should be public to allow patients to make informed choices about providers and to identify systemic problems requiring intervention. Others contend that confidentiality facilitates settlements by making defendants more willing to resolve cases, ultimately benefiting plaintiffs who receive compensation sooner and more reliably than through trial.

New York has not enacted broad restrictions on medical malpractice settlement confidentiality, leaving this issue primarily to negotiation between parties.

What Birth Injury Settlements Actually Pay in New York

Birth injury settlements in New York are among the highest in the nation, reflecting both the severity of these injuries and the state’s lack of damages caps.

New York’s Position as a High-Payout State

According to the National Practitioner Data Bank, New York consistently leads the nation in total medical malpractice payouts. In 2024, New York had $550.12 million in payouts across 1,205 cases. In 2022, the state had 1,170 medical malpractice payouts totaling $560.58 million, for an average of approximately $478,632 per claim.

These figures include all types of medical malpractice, not just birth injuries, but they establish New York as a jurisdiction where substantial compensation is available for medical negligence.

Average Birth Injury Settlement Amounts

Birth injury cases specifically yield substantially higher settlements than general medical malpractice claims. Nationally, the average birth injury settlement reaches $1 million or higher, representing approximately 30% higher awards than typical medical malpractice claims.

Settlement ranges for out-of-court agreements generally span from $420,500 to $510,000 for moderate cases, though severe cases frequently reach multi-million dollar amounts.

How Settlement Amounts Vary by Injury Severity

The severity of the birth injury dramatically affects settlement value:

Mild to moderate injuries that resolve with treatment or result in minimal permanent impairment might settle for $400,000 to $1 million.

Severe permanent injuries requiring lifelong care, such as cerebral palsy, brain damage, or paralysis, typically result in settlements of several million dollars.

Catastrophic injuries resulting in profound disabilities, complete paralysis, or persistent vegetative states can lead to settlements exceeding $10 million or even $100 million in extreme cases.

The most severe cases involving permanent quadriplegia, brain damage, and lifelong care requirements have median inflation-adjusted payments of approximately $700,000 to $800,000, while cases involving death have median payments around $400,000.

Recent New York Birth Injury Settlements and Verdicts

Recent cases illustrate the range of compensation in New York birth injury cases:

$6,000,000 settlement in 2025 for respiratory complications, birth depression, and neurological damage resulting in cerebral palsy
$1,000,000 settlement in 2022 for shoulder dystocia, Erb’s palsy, and hypoxic-ischemic encephalopathy
$3,046,940 settlement in 2020 for Erb’s palsy resulting in permanent paralysis
$400,000 settlement in 2024 for brachial plexus injury and Erb’s palsy

New York has also produced several jury verdicts exceeding $100 million for birth injury cases. A 2012 case resulted in a $103,075,618 verdict for twins, one of whom developed cerebral palsy due to mismanagement of premature labor.

These examples demonstrate that while most cases settle for less than $10 million, the most severe injuries can result in truly extraordinary compensation.

Jury Verdicts Compared to Settlement Amounts

The average jury verdict in birth injury cases ranges from $1,750,000 to $2,000,200, substantially higher than the average settlement. This difference reflects several factors:

Selection bias: Cases that go to trial are often those with higher damages and clearer liability, while weaker cases settle for less.

Jury sympathy: Juries seeing an injured child and hearing testimony about their challenges may award more generous damages than what defendants offer in settlement.

No compromise needed: Settlements involve give and take, while juries simply award what they believe is appropriate without negotiating.

However, only about 10% of birth injury cases actually proceed to trial. The higher average verdict must be weighed against the risk that some trials result in defense verdicts with zero recovery.

Birth Injury Claims Against NYC Health and Hospitals

New York City’s public hospital system, NYC Health + Hospitals, operates 11 hospitals providing care to some of the city’s most vulnerable populations. Birth injury claims against these facilities involve special considerations.

The Volume of Medical Malpractice Claims Against Public Hospitals

In fiscal year 2023, 398 medical malpractice claims were filed against NYC Health + Hospitals facilities, down 10% from 441 claims in FY 2022. Medical malpractice claims accounted for 66% of all claims against the system.

The city paid $51.5 million in settlements and judgments for 64 medical malpractice claims in FY 2023, compared to $81.1 million for 103 claims in FY 2022. The average payout for NYC medical malpractice claims was $677,528.

How Long Public Hospital Cases Take to Resolve

Cases against NYC Health + Hospitals typically take five to ten years to resolve from the filing date, significantly longer than cases against private hospitals and providers. This extended timeline reflects several factors:

Government bureaucracy: Claims against government entities involve additional procedural steps and approvals.

Higher litigation rates: Public hospitals may be less likely to settle early, leading more cases to proceed through litigation.

Resource constraints: Public hospitals’ legal departments handle enormous caseloads, potentially slowing case progression.

For families filing claims against NYC Health + Hospitals facilities, patience and persistence are essential. The extended timeline makes working with an experienced attorney even more critical.

Special Requirements for Claims Against Public Hospitals

As discussed earlier, claims against public hospitals require filing a Notice of Claim within 90 days of the injury and commencing the lawsuit within one year and 90 days. Missing these deadlines permanently bars your claim.

The Notice of Claim must include specific information about the incident, the injuries sustained, and the basis for the claim. While not as detailed as a full complaint, it must provide sufficient information to allow the government entity to investigate.

After filing the Notice of Claim, the city typically conducts a “50-h hearing” where the claimant provides sworn testimony about the incident. This hearing allows the city to investigate the claim before deciding whether to settle or defend.

Understanding the Broader Context of Birth Injuries

To appreciate how settlements work, it helps to understand how common birth injuries are and which ones most frequently lead to legal claims.

How Often Birth Injuries Occur

Birth injuries occur in approximately 7 of every 1,000 babies born in the United States, totaling over 25,000 infants annually. Oxygen deprivation specifically affects approximately 2 of every 1,000 newborns, with birth asphyxia occurring in as many as 10 out of 1,000 births according to some studies.

Birth injuries contribute significantly to infant mortality, representing 20% of the approximately 20,000 infant deaths in the U.S. each year.

Which Birth Injuries Lead to Legal Claims

Not all birth injuries result from negligence, and not all injuries caused by negligence lead to legal claims. However, certain injuries more frequently form the basis of malpractice cases:

Oxygen deprivation injuries leading to hypoxic-ischemic encephalopathy and cerebral palsy are among the most common bases for claims because they often result from failure to monitor fetal distress or delayed cesarean sections.

Brachial plexus injuries including Erb’s palsy frequently result from shoulder dystocia that isn’t managed properly during delivery.

Skull fractures and intracranial hemorrhages may result from excessive force during delivery or improper use of delivery instruments.

Facial nerve paralysis can occur when excessive pressure is applied to the baby’s face during delivery.

Spinal cord injuries may result from excessive traction or rotation during difficult deliveries.

How Many Birth Injuries Are Preventable

Research indicates that approximately 80% of birth injuries are considered preventable with appropriate medical care and monitoring. This high preventability rate supports the substantial legal activity in this area and underscores the importance of holding providers accountable when they fail to meet the standard of care.

Common preventable failures include:

Failure to identify and respond to fetal distress indicated by heart rate monitoring
Delayed decision-making regarding emergency cesarean delivery
Improper management of shoulder dystocia or other delivery complications
Failure to properly assess risk factors before labor
Medication errors including excessive Pitocin administration
Inadequate newborn resuscitation

When these failures occur, they represent not just unfortunate outcomes but genuine medical negligence that justifies compensation for injured children and their families.

Practical Steps for Families Considering Birth Injury Claims

If you believe your child’s birth injury resulted from medical negligence, understanding the practical steps involved can help you move forward effectively.

When to Consult a Birth Injury Attorney

Time is critical in birth injury cases due to the statute of limitations and the need to preserve evidence. You should consult an attorney as soon as you suspect negligence, even if you’re not certain malpractice occurred.

Signs that merit consultation include:

Healthcare providers cannot adequately explain why the injury occurred
The delivery involved obvious complications or emergencies
Your child has developmental delays or disabilities that weren’t explained by prenatal conditions
Medical staff seemed disorganized, slow to respond, or made apparent errors during delivery
Your child requires extensive ongoing medical care for conditions that developed during or immediately after birth

Most birth injury attorneys offer free initial consultations and can review your medical records to determine whether your case has merit. Consulting an attorney doesn’t commit you to filing a lawsuit; it simply helps you understand your options.

Why Waiting for Maximum Medical Improvement Is Important

Attorneys typically advise waiting until your child reaches maximum medical improvement or completes most treatment before finalizing settlement negotiations. This timing ensures you can fully account for all medical costs, ongoing needs, and the extent of any permanent impairments.

Settling too early creates risk that your child’s needs will exceed the settlement amount. Once you settle and sign a release, you cannot go back for more money if your child’s condition turns out worse than initially understood or if unexpected complications develop.

However, waiting indefinitely isn’t advisable either, given the statute of limitations. Experienced birth injury attorneys help families balance the need for complete information against the necessity of preserving legal claims.

What Documentation You Should Preserve

From the moment you suspect a problem, begin preserving documentation:

Medical records: Obtain complete copies of all prenatal care records, labor and delivery records, newborn hospital records, and all subsequent treatment records. These form the foundation of your case.

Financial records: Keep all bills, receipts, and insurance statements related to your child’s treatment, equipment, and therapies. Document mileage to appointments and any modifications made to your home or vehicle.

Photographic and video evidence: Document your child’s condition, equipment they require, and how their injuries affect daily life. This evidence powerfully illustrates damages that written records alone cannot convey.

Journals and diaries: Keep records of your child’s struggles, developmental milestones they miss, therapies they undergo, and the emotional impact on your family. Contemporary documentation is more credible than later recollection.

Employment records: Document any work you’ve missed or income you’ve lost due to caring for your child or attending medical appointments.

Understanding the Role of Medical Experts

Birth injury cases require medical expert testimony to establish what the standard of care required in your specific situation, demonstrate how providers deviated from that standard, and prove causation between the deviation and your child’s injury.

Your attorney will retain experts in relevant specialties, which might include:

Maternal-fetal medicine specialists or obstetricians
Labor and delivery nurses
Neonatologists or pediatric neurologists
Life care planners who project lifetime costs and needs
Economic experts who calculate lost earning capacity

These experts review medical records, provide opinions, and may testify at trial if your case doesn’t settle. Expert costs represent a significant investment in your case, often reaching tens of thousands of dollars, which underscores the importance of working with attorneys who carefully screen cases before accepting them.

What to Expect from Working with a Birth Injury Attorney

Birth injury attorneys typically handle every aspect of your case, including:

Obtaining and reviewing all relevant medical records
Consulting with medical experts to evaluate merit
Investigating the circumstances surrounding the injury
Filing all necessary legal documents within required deadlines
Negotiating with defendants and insurance companies
Preparing your case for trial if settlement cannot be reached
Handling all communication with opposing parties

You’ll need to provide information, attend depositions where you answer questions under oath, and participate in settlement negotiations. Your attorney should keep you informed throughout the process and ensure you understand any settlement offers before deciding whether to accept them.

The contingency fee arrangement means your attorney’s payment depends on your recovery, aligning their interests with yours. They’re motivated to maximize your compensation because their fee is a percentage of it.

Looking Ahead After a Birth Injury Settlement

Receiving a settlement resolves the legal case, but families continue managing their child’s needs for years or decades. Understanding how to use settlement funds wisely can make an enormous difference in your child’s quality of life.

Managing Settlement Funds Responsibly

Large settlements require careful financial management. Consider working with financial advisors experienced in managing special needs trusts and structured settlements. These professionals can help you:

Budget for your child’s lifetime needs
Invest conservatively to preserve capital while generating reasonable returns
Plan for major expenses like home modifications or adapted vehicles
Ensure funds last throughout your child’s life

Avoid the temptation to make major purchases or investments immediately. Take time to understand your options and make thoughtful decisions with professional guidance.

Preserving Government Benefits Eligibility

Many children with birth injuries qualify for government benefits including Medicaid, Supplemental Security Income, and other programs. Large settlements can jeopardize this eligibility if not structured properly.

Special needs trusts allow settlement funds to benefit your child without disqualifying them from means-tested government benefits. These trusts pay for expenses not covered by government programs while allowing the child to maintain benefit eligibility.

Proper trust structure is critical and requires working with attorneys experienced in special needs planning. Mistakes can result in loss of benefits that provide important safety nets for your child.

Planning for Your Child’s Long-Term Care Needs

Birth injury settlements should fund not just immediate needs but lifetime care. Consider:

Evolving medical needs: Your child’s needs will change as they grow. What works for a toddler differs from what a teenager or adult requires.

Educational services: Many children with birth injuries benefit from specialized educational programs, tutoring, or adaptive learning technologies.

Residential considerations: As your child ages, you’ll need to plan for their living arrangements when you can no longer care for them.

Guardianship and advocacy: Consider who will make decisions for your child if they cannot make them independently, particularly after they reach adulthood.

Quality of life: Beyond medical necessities, settlement funds can provide experiences, relationships, and opportunities that enhance your child’s life despite their limitations.

When Settlement Isn’t Possible

While most birth injury cases settle, some proceed to trial. Understanding what trial involves can help you make informed decisions about settlement offers.

Reasons Cases Go to Trial

Cases typically go to trial when:

Defendants deny liability despite strong evidence of negligence
Parties cannot agree on the value of damages
Defendants make unreasonably low settlement offers
Multiple parties dispute responsibility among themselves
Important legal or factual issues require judicial determination

Sometimes taking a case to trial is the only way to secure fair compensation, despite the risks and additional time required.

What to Expect from a Birth Injury Trial

Birth injury trials typically last one to three weeks and involve:

Jury selection: Attorneys question potential jurors to select twelve people who can fairly evaluate the case.

Opening statements: Each side previews their case and what they expect the evidence to show.

Plaintiff’s case: Your attorneys present evidence including medical records, expert testimony, fact witness testimony, and documentation of damages.

Defendant’s case: Defense attorneys present their evidence, often including their own medical experts who testify the standard of care was met.

Closing arguments: Attorneys summarize the evidence and argue why their side should prevail.

Jury deliberation: The jury evaluates the evidence, determines whether negligence occurred, and if so, calculates damages.

Trials are emotionally demanding for families who must relive traumatic experiences through testimony. However, they also provide an opportunity to hold providers publicly accountable and potentially secure compensation far exceeding settlement offers.

The Risk-Benefit Analysis of Trial versus Settlement

Deciding whether to accept a settlement or proceed to trial requires weighing several factors:

Trial risks: Even strong cases can result in defense verdicts if jurors don’t find the evidence persuasive. You might receive nothing despite years of litigation.

Potential rewards: Jury verdicts often exceed settlement offers, sometimes substantially.

Timing: Trials delay compensation, potentially by years, while settlements provide funds relatively quickly.

Emotional toll: Trials require extensive participation from families and can be emotionally exhausting.

Publicity: Trials are public proceedings, while settlements can remain confidential.

Your attorney should provide realistic assessment of your chances at trial, likely damages ranges if you prevail, and whether the settlement offer represents fair value. Ultimately, the decision to settle or proceed to trial is yours, but it should be made with complete information and professional guidance.

To Sum It Up

New York’s birth injury settlement process reflects a sophisticated legal system designed to balance multiple interests: compensating injured children fairly, ensuring access to justice while deterring frivolous claims, and providing sustainable mechanisms for funding lifetime care.

For families navigating this system, the journey from recognizing a birth injury through final settlement can take years and requires patience, persistence, and professional guidance. The stakes are too high and the system too complex for families to navigate alone.

If you believe your child’s birth injury resulted from medical negligence, consulting with an experienced birth injury attorney is the critical first step. Most offer free consultations and can help you understand whether you have a valid claim and what compensation might be available.

While no amount of money can undo a birth injury or restore your child’s health, fair compensation can ensure your child receives the care, therapies, equipment, and support they need to reach their full potential despite their challenges. That’s what the settlement process ultimately aims to achieve: providing resources that make a genuine difference in your child’s life and your family’s ability to care for them.

How Birth Injury Settlements Work in New York