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Understanding Birth Injury Lawsuits: A Comprehensive Overview | Bogoroch


Written by: Catherine Avrutin

A birth injury occurs when a baby’s body structure or function is harmed during the birthing process. If the injury was caused by medical error or negligence during childbirth, families facing the aftermath of birth injuries may be entitled to compensation for these injuries, which can be achieved by a medical malpractice claim to recover damages. 

How Birth Injuries Occur

There are several circumstances in which birth injuries may occur, the most common being:

1. Prolonged Labour and Delivery

Prolonged labour and delivery can cause stress to the mother and baby, increasing the risk of complications.

2. Use of Forceps/Vacuums

Improper use of medical instruments such as forceps or vacuums can lead to trauma to the baby, causing bruising, lacerations, or nerve damage.

3. Breech or Face Presentation During Birth

An abnormal birthing presentation increases the risk of shoulder dystocia (ie. baby getting stuck in the birth canal) and hypoxia (ie. lack of oxygen).

4. Larger Babies (ie. Macrosomia)

Macrosomia increases the risk of shoulder dystocia (ie. baby getting stuck in the birth canal) and hypoxia (ie. lack of oxygen).

5. Medical Errors 

Medical errors arising from negligence or malpractice of health care professionals include improper prenatal care, improper monitoring of the mother, dismissing concerns of the patient or other caregivers, misreading test results and/or failing to order appropriate tests, and delaying emergency interventions.

When to Settle Birth Injury Claims

When considering a settlement, we prioritize your interests by weighing the benefits of financial compensation and closure against the uncertainties of litigation. 

Both sides will hire experts to evaluate if there is compelling evidence of medical negligence or wrongdoing. Defence lawyers will usually advise their client to settle if they cannot reasonably defend the claim. However, the plaintiff could also lose at trial, and it is therefore essential to consider the risks, costs incurred, and emotional hardship of a trial. 

Assessing Damages for Birth Injury Claims

Our team of experts will also assess damages, which is “how much” the claim is worth. The compensation available includes:

1. Cost of past and future care

The cost of past and future care depends on the extent of injuries and financial needs of the child and family. These damages are awarded to cover medical expenses, attendant care, occupational and/or physiotherapy, psychological therapy, medical equipment, medications, and other expenses recommended by an expert.

2. Lost earning capacity

Loss of earning capacity is awarded when the child loses the ability to work and earn income in the future due to a permanent injury.

3. Pain and suffering

Pain and suffering damages are awarded for emotional distress and loss of enjoyment of life for the child or loss of guidance, care, and companionship for the family.



How much will a birth injury lawyer cost?

Bogoroch & Associates LLP operates on a contingency fee basis, whereby our fee is calculated as a percentage of the compensation awarded to you and your family. Fees will be agreed upon at the time of our retainer, which assures you of no unexpected changes. If we do not settle or win your case, you do not pay our fees.

How long after a birth injury can you file a lawsuit?

Minors typically have until they turn 18 to bring a birth injury lawsuit unless they are permanently incapacitated or have been appointed a litigation guardian. A litigation guardian is someone who can make decisions on behalf of the minor, including instructing a lawyer. If a litigation guardian has been appointed, the minor has two years from the appointment date of the litigation guardian to bring the claim. 

The family members of an injured child can also bring a claim in concurrence with the minor’s claim.

How long will my case take?

Based on the circumstances of the case, we may strategically delay the settlement to ensure a thorough evaluation of the evidence. Alternatively, we may opt to expedite the legal process by having the case set down for trial.



Our experienced medical malpractice lawyers will advocate vigorously on your behalf and help you every step of the way. We will make sure your case is managed effectively and promptly. Our team will work closely with top medical professionals and experts to guide you through the justice system with knowledge, commitment and compassion because the only acceptable outcome for us is the best possible settlement for you.

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