Steps to Filing a Birth Injury Lawsuit: What You Need to Know

When a preventable error during pregnancy, labor, or delivery harms a newborn or birthing parent, a birth injury lawsuit can help secure accountability and resources for lifelong care. Because these cases are a subset of medical malpractice, timing, documentation, and expert review are critical. Below is a practical, up-to-date roadmap you can use to understand the process before you speak with a qualified attorney in your jurisdiction.

1) Get Immediate Care—and Secure the Medical Record

Prioritize treatment and stabilization for the child and parent. At the same time, start building the paper trail. In the U.S., you have a legal right under the HIPAA Privacy Rule to obtain copies of your medical records (prenatal notes, fetal monitoring strips, delivery notes, NICU charts, imaging, therapy records). Providers generally must provide access to protected health information maintained in a “designated record set,” subject to narrow exceptions. Request records in writing and keep confirmations of each request. (Source: U.S. Department of Health & Human Services, HIPAA Privacy Rule)

2) Mind the Deadlines (Statutes of Limitation & Repose)

Every state sets deadlines for filing malpractice claims, often with special rules for minors, discovery of injury, and outer “statutes of repose.” Some states also recognize doctrines (for example, continuous treatment) that can affect when the clock starts. Because these rules vary widely and change over time, get jurisdiction-specific advice promptly. For a current, state-by-state overview of core malpractice timing concepts and reforms, see the National Conference of State Legislatures (NCSL).

3) Consult an Experienced Birth-Injury/Med-Mal Attorney

Early consultation helps preserve evidence and meet notice requirements. A qualified attorney will screen the facts, evaluate potential defendants (obstetricians, nurses, hospitals, midwives, ancillary providers), and map out the strategy under your state’s rules. Many states require pre-suit steps such as expert certifications, affidavits of merit, or screening panels before a case can proceed.

4) Pre-Suit Investigation & Expert Review

Birth injury claims typically turn on whether providers violated the applicable standard of care and whether that violation caused harm. Your legal team will gather complete records, preserve fetal monitor tracings, identify and interview witnesses, and retain qualified medical experts (e.g., obstetrics, neonatology, pediatric neurology). In many states, an expert affidavit (certificate of merit) is required just to file or maintain the suit—missing this step can be fatal to a claim.

5) Special Case: Injuries at a Federally Run Clinic or Hospital

If the care occurred at a federally operated facility (for example, certain community health centers, VA hospitals, or clinics deemed for FTCA coverage), claims are governed by the Federal Tort Claims Act (FTCA). Before any lawsuit, you must first file an administrative claim—typically using Standard Form 95—with the appropriate federal agency within two years of accrual, stating a “sum certain.” Only after the agency denies the claim or six months pass without a decision can you file in federal court, and then you face a six-month filing window.

6) Filing the Complaint

Once pre-suit requirements are satisfied, your attorney files a civil complaint in the proper court, alleging: (1) duty; (2) breach of the professional standard of care; (3) causation; and (4) damages. While phrasing is jurisdiction-specific, this framework is broadly recognized in U.S. malpractice law and summarized by NCSL.

7) Discovery: Building (and Testing) the Case

Both sides exchange evidence through depositions, written questions, and expert reports. Expect defense requests for prior medical history and alternative causation theories (e.g., prenatal conditions, genetics, infections, or unavoidable complications). Your team will use medical literature, imaging, and developmental assessments to tie the breach to specific injuries and future care needs.

8) Settlement Talks, ADR, and Screening Panels

Many jurisdictions use alternative dispute resolution (ADR)—mediation or arbitration—or require presentation to medical review panels. These mechanisms can streamline or resolve disputes before trial. Procedures, timelines, and evidentiary effects vary by state statute.

9) Damages: What Compensation May Cover

Damages in birth injury cases often include past and future medical expenses (e.g., surgeries, therapies, equipment, home modifications), lost earning capacity, and non-economic harms recognized by state law. Some states cap non-economic damages or have special periodic payment rules—your attorney will advise based on current statutes in your state. NCSL provides neutral summaries of key malpractice reforms, including caps and related limits.

10) Protecting Privacy and Access Throughout

While litigation proceeds, continue exercising your HIPAA right of access to ensure your team has the most complete, up-to-date records. This right generally extends to PHI held by a provider’s business associates (such as outside record storage vendors or labs), with narrow exceptions.

Practical Checklist

• Request complete medical records early (ask for electronic copies where possible to retain metadata).
• Diary key dates: delivery, diagnosis, discovery, transfers, and any communications with providers or insurers.
• Preserve physical evidence (devices, equipment, discharge kits) and digital evidence (portal messages, photos, videos).
• Consult a med-mal attorney quickly to avoid missing state pre-suit steps (affidavits, notices, screening panels).
• If a federal facility may be involved, calendar FTCA deadlines and consider filing SF-95 promptly.

Key Takeaways

Birth injury litigation is complex but manageable when you act early: obtain records, preserve evidence, secure qualified experts, and track all applicable deadlines. Because laws differ by state (and federal facilities follow FTCA rules), personalized legal advice is essential. The sources below provide official, regularly updated references you can consult as you begin.

References & Credible Sources

• U.S. Department of Health & Human Services (HHS), HIPAA Privacy Rule: Summary and Right of Access Guidance.
• National Conference of State Legislatures (NCSL), Medical Liability/Malpractice Overviews (elements, affidavits of merit, ADR/screening panels).
• Health Resources & Services Administration (HRSA), FTCA FAQs (claims against federally supported health centers).
• U.S. Department of Justice, Standard Form 95 (FTCA administrative claim) and General Services Administration (SF-95 form).
• Reuters Legal analysis on the continuous treatment doctrine and recent appellate decisions (SOL nuances).
• U.S. Department of Veterans Affairs, Office of General Counsel—FTCA filing requirements and two-year administrative claim deadline.