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How to Defend Yourself in a Birth Injury Lawsuit
Each year about six out of 1,000 babies are injured during delivery.If you are a doctor, gynecologist, neonatologist, midwife, or nurse, you might be sued for causing the baby’s injuries. In order to defend against the lawsuit, you need professional legal help. You should also contact your professional malpractice insurer. Birth injury lawsuits often revolve around the testimony of experts, who review the actions you took and testify as to whether those actions were reasonable.
Planning Your Defense
Read the complaint.When the plaintiff files a lawsuit, she will send you a copy of the complaint. You should read it carefully to understand what injuries the plaintiff is alleging. Typically, a birth injury lawsuit is a medical malpractice claim, which alleges the following:
- you owed a legal duty of care to the baby (and sometimes the mother)
- you breached that duty by acting (or failing to act) in a manner that a reasonably competent professional would have under the circumstances
- your breach caused harm to the baby (and sometimes the mother)
Hire a lawyer.To defend against a birth injury lawsuit, you need an attorney. Birth injury lawsuits can be brought for very high damage amounts—in the millions. Only an experienced medical malpractice attorney can defend you. To find one, ask other professionals (doctors, nurses, hospital administrators) who have been sued for these claims if they would recommend their lawyer.
- Medical malpractice defense isn’t cheap. You should read your malpractice insurance policy to see if it includes a duty to defend provision. With this provision, the insurer agrees to defend you from any claim that could be covered by the insurance policy.
Contact your insurance company.Whether you have a duty to defend provision or not, you need to contact your insurer as soon as you know the claim has been made against you.You should look at your policy to find the appropriate number. Your insurer will want the following information about the lawsuit:
- the date you were served notice of the lawsuit
- patient information, such as name, address, Social Security Number, and parental information
- the name and contact information for the plaintiff’s attorney
- a description of the treatment you gave, including the date of first and last treatments, as well as the date and location of the incident
Reconstruct your actions.The plaintiff should quite easily prove that you owed a legal duty to the baby. For example, if you were the doctor who delivered the baby, then you assumed a duty to deliver the baby in a reasonably competent manner. Accordingly, the lawsuit will turn on whether your actions fell below this “reasonably competent” threshold and whether your actions caused the damage.
- You should sit down with your lawyer and reconstruct what happened in the delivery room. Talk about the decisions you made, why you made them, and what complications arose during the delivery.
Identify witnesses.There might have been witnesses to the delivery. Usually, there is more than one person in the delivery room. Of course, these additional people (nurses, anesthesiologist, etc.) might also have been sued. You should give your attorney the witness’s name and contact information.
Stop communications with the plaintiffs.Once you have been sued, you should stop all communications with the plaintiffs. Instead, direct them to your lawyer or to your insurance company.
- By cutting off communications, you can avoid saying anything damaging to your case. Be mindful that any out-of-court statement that you make can be admitted into court as evidence.
- For this reason, you should also avoid talking about the case with colleagues, friends, and associates.
Responding to a Lawsuit
Draft an answer.You must respond to a complaint. If you fail to, then the plaintiff could get a default judgment against you.These can be very difficult to set aside. Take out your copy of the summons (which was sent with the complaint) and check the deadline for answering the complaint.
- In the complaint, you will admit, deny, or claim insufficient knowledge to admit or deny each allegation.
File the answer.Once your lawyer has finished drafting the answer, he or she will take it to the court and file. You should ask your lawyer for a copy of all documents the lawyer files in your case.
- You must send a plaintiff a copy of the answer. If she has a lawyer, then you should send it to the attorney. On the off chance the plaintiff does not have a lawyer, then you mail it to the plaintiff.
Participate in fact-finding.Once you have answered the complaint, the lawsuit enters a fact-finding stage called “discovery.” Discovery can be fairly long and drawn-out. The purpose of discovery is to have both the plaintiff and defendant share information so that there are no surprises at trial. There are several common forms of discovery:
- Request for Documents.You can request relevant documents in the plaintiff’s possession. For example, you might want to see copies of medical reports on the child. If the parents took the baby to a doctor, you would want to see all reports. A doctor might have identified the injury as a genetic defect and not something you caused.
Interrogatories.These are written questions sent to the plaintiff to answer. You might want to use interrogatories to uncover the following:
- whether the birth mother had a pre-existing medical condition that might have caused the injury
- whether the birth mother followed doctor’s orders during the pregnancy
- what medicines the birth mother took during the pregnancy and who prescribed them
- information about the genetic history of each parent’s family
- Depositions.In a deposition, a witness answers oral questions under oath in a lawyer’s office. The testimony is either recorded by a court reporter or videotaped. You would want to ask similar questions as you do in Interrogatories; however, depositions allow for follow-up questions.
Bring a motion for summary judgment.After discovery has ended, your lawyer might want to bring a motion for summary judgment. If you win this motion, then the case does not go to trial and you win a complete victory.
- In the motion, your lawyer will argue that no issues of material fact remain and that you are entitled to a judgment in your favor as a matter of law.In other words, a trial is unnecessary because the factual record has been developed and the law is clearly in your favor.
- A summary judgment motion can take your attorney a long time to draft, but you should ask for regular updates and even request to see a draft.
Engage in negotiation or mediation.If you lose your motion for summary judgment, you should give serious thought to negotiating a settlement. The risk with personal injury lawsuits (like birth injury lawsuits) is that the jury will pity the child and therefore award the plaintiffs money without really looking at the evidence. You face a strong chance of losing at trial and losing big.
- If you negotiate, you can come to a settlement. In exchange for paying the plaintiff, you receive a release from any further lawsuits based on the injury. You can expect your insurer to be involved in the negotiations. Because the plaintiff in a birth injury lawsuit is probably a minor, you will probably need a court to approve the settlement.
- Mediation might also be an option. In mediation, a neutral person (the mediator) listens to both sides explain the dispute. Mediation is like negotiation, except the mediator helps guide the parties to a mutually acceptable resolution.
- You might not want to negotiate or mediate a claim because you are convinced that you did not commit malpractice. If you settle, then your insurance premiums may also rise. However, you should talk with your lawyer about your likelihood of success at trial. Settlement may be your best option.
Going to Trial
Hire expert witnesses.To help the jury understand what medical care should have been given, the plaintiff will likely present one or more expert witnesses.These experts are often doctors who can be hired to testify on the plaintiff’s behalf. If the plaintiff has an expert, then you will need an expert as well.
- Your expert will testify as to whether you acted in a reasonably competent manner and whether your actions caused harm to the baby.
- Your lawyer should be familiar with experts who are willing to testify for the defense. Some experts only testify for plaintiffs and some only testify for defendants.
Select jurors.This is a key part of the case. You will want to screen out prospective jurors who you think would be biased against you at trial. During “voir dire,” the judge will ask the jurors questions. You can often give the judge questions to ask (or ask them yourself).
- In addition to striking prospective jurors for bias, you should also be given a number of “peremptory challenges.” With a peremptory challenge, you can exclude a juror without having to give a reason.
- To uncover bias, you should try to find out whether the juror has brought a medical malpractice lawsuit before. Also try to uncover whether the juror has ever experienced complications during delivery. These kinds of jurors might not be sympathetic to your case.
Have your lawyer present an opening statement.A birth injury trial will begin with opening statements. Your lawyer will tell the jury what evidence you will present and what the evidence will prove. The best way to think of the opening statement is that it operates as a “roadmap” for the jurors, laying out what evidence will be presented.
Cross-examine witnesses.The plaintiff will present their case first. Typically, the witnesses will include the birth mother, the baby’s doctor, and expert witnesses who can testify as to what a reasonable doctor or medical professional would have done during the delivery.
- Your lawyer will then cross-examine these witnesses. The purpose is to undermine the jury’s confidence in the witness’s testimony.
- Because this is a birth injury lawsuit, your lawyer will handle the birth mother sensitively. In fact, your attorney might not even ask her any questions.
- However, your attorney should be more aggressive when cross-examining any expert. Specifically, your lawyer will try to impeach the expert, perhaps by confronting the expert with a publication in which the expert expressed different opinions than those expressed at trial.
Testify on your own behalf.As the defendant, you will probably have to testify about what actions you took during the delivery. Your lawyer should help you prepare by doing one or more practice sessions. Remember the following tips when you testify:
- Always look attentively at the attorney questioning you. When you answer the question, turn to the jury.
- Closely listen to the question and don’t answer more than what is asked. If you don’t understand the question, ask the attorney to rephrase it.
- Speak loudly and clearly.
- Always tell the truth.
Think about using demonstrative exhibits and visual aids.In a birth injury lawsuit, the jury might benefit from exhibits or aids that help clarify the information. For example, your lawyer might use a model of the human body to show how the baby exited the birth canal.
- Alternately, your lawyer could use a video animation of the birth.This animation can help educate the jurors as to how the childbirth occurred.
- Sometimes, enlarging portions of documents can also be effective.For example, if a medical record states that the child has a birth defect (and not an injury), then your lawyer might want to blow up that section of the medical record and create a giant exhibit.
Make your closing argument.After all evidence has been submitted, the lawyers make closing arguments. With a closing argument, your lawyer sums up the evidence and argues why you are not responsible for the child’s injuries.
Receive the jury verdict.After closing arguments, the judge instructs the jury in the law, and then the jurors retire to deliberate. In state court, you can probably lose even if the jury does not reach a unanimous verdict. For example, if nine or more (out of 12) jurors decide for the plaintiff, then the plaintiff can win.
File a motion to reduce damages.Sometimes, jurors in a birth injury lawsuit are overly sympathetic to the plaintiffs and will award an outrageous amount of money. After the jury delivers its verdict, you can file a motion to ask the judge to lower the amount of damages awarded. This motion is called a motion for “remittitur.”
- To have the damage amount reduced, you must argue that the jury’s award “shocks the conscience.”
File for appeal, if necessary.Appeals can be lengthy, expensive, and time-consuming. But if you are convinced that the evidence does not show that you were negligent, then an appeal could be worthwhile. You can have the appellate court toss out the jury verdict and either order a new trial or decide the case in your favor.
- Be sure to talk with your attorney and insurer about whether you should appeal. Be sure to have the conversation quickly, as courts only give you a short amount of time (typically 30 days) to file a Notice of Appeal.
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