Having an attorney who knows how to gather the right evidence is crucial
To win a birth injury lawsuit, the victim and their family must prove three things. The first is a breach of the medical standard of care; that is, a medical professional failed to meet the standard of care that applied under the circumstances, whether before, during, or shortly after birth. The second is causation; that is, the breach of the standard of care actually caused the injury to the child. Finally, you must prove damages—the cost of the injury to the victim, including their medical expenses, pain and suffering, lost future earning capacity, and more.
To prove all three of those elements, you need evidence, which comes in many forms. Here are some of the key pieces of evidence that come into play in birth injury cases.
Expert Witness Testimony
Expert witnesses are individuals with specialized training, education, and expertise who can provide their opinions on issues relevant to a legal case. In birth injury cases, both sides typically hire multiple expert witnesses, including medical professionals and, in some cases, other specialized experts.
In particular, to prove the medical standard of care, you need a medical professional in the same specialty as the doctor or nurse whose alleged negligence caused your child’s injury. For example, if the birth injury was caused by the negligence of an obstetrician-gynecologist (OB-GYN), then you need an OB-GYN as an expert witness to establish the applicable medical standard of care and explain why the OB-GYN who delivered the baby failed to meet that standard of care.
Medical experts are also needed to establish causation. For example, a doctor in a relevant specialty can explain why failure to monitor the fetal heart rate during labor and delivery could lead to a lack of oxygen to the brain, which in turn could cause brain damage. Medical experts are also needed to explain the impact of the injury on the child’s overall health and their long-term prognosis, which is an important part of determining damages.
Birth injury cases are often described as a “battle of the experts.” Both sides will hire expert witnesses, and the outcome of a trial may come down to which side’s experts the jury finds more believable. That’s why it’s important to work with an attorney who knows how to find the right experts and thoroughly prepare them to testify.
Fact Witness Testimony
Unlike an expert witness, a fact witness is someone who was actually involved in the events in question and can talk about what they saw, heard, and did. In a birth injury case, many of the fact witnesses are medical professionals—doctors, nurses, and others involved in the delivery of the child—but their job is to testify about what happened, rather than their medical expertise.
Since most of the witnesses in a birth injury case are either employees of the defendant medical facility or defendants themselves, your attorney needs to work hard to get them to provide information that helps your case. An experienced birth injury lawyer knows how to ask the right questions in depositions and at trial to determine the facts and identify those responsible.
Medical Records
Hospitals and birthing centers keep extensive records of what happens before, during, and after the delivery of a child. Those records play a critical role in birth injury cases. Experienced birth injury lawyers know how to comb through these records, often in thousands of pages, to find the information critical to your case, and consult with experts as needed to understand the records and whether they reveal a violation of the standard of care.
Life Care Plans
A life care plan is a document prepared by a medical professional that lays out the long-term treatment needs of a person with a permanent injury, along with the associated costs. For children with birth injuries such as cerebral palsy, a life care plan may include physical therapy, occupational therapy, speech therapy, medication, medical devices, modifications to the child’s home or the parents’ vehicle to accommodate the child’s disability, visiting nurses, home health aides, residential care, and many other medical services. The life care plan thus becomes an important part of the damages portion of the case.
At The Lancione Law Firm, we routinely collaborate with experienced life care planners who understand how to accurately assess the full cost of our clients’ injuries. We are also adept at seeing the gaps in competing life care plans prepared by the defendants and their insurance companies to downplay the long-term cost of a birth injury.
Talk to an experienced birth injury attorney today
Evidence builds strong legal cases, and birth injury matters are especially heavy on facts. That’s why you need an attorney who will thoroughly investigate, gather and review medical records, carefully question witnesses, and get to the bottom of what happened to your child.
The Lancione Law Firm has the experience and resources needed to build winning cases for birth injury victims and their families. Give us a call or contact us online today to see how we can help you.