New York Birth Injury Lawyers

Your Child's Injury Decides How a New York Birth Injury Case Is Built

A New York birth injury claim is a medical malpractice case for a child harmed by mistakes in pregnancy care, labor, delivery, or the first hours after birth.

New York places no cap on the damages, and a state program called the Medical Indemnity Fund changes how the money is paid.

For a qualifying brain or spinal cord injury, the Fund pays the child's future medical costs, and the rest of the recovery is paid in cash.

An Erb's palsy or a broken collarbone from a hard delivery sits outside the Fund, so that case stays all cash.

The child's claim generally has to be filed within ten years of the malpractice, and the parents' own claim runs out years before that.

Call (888) 713-6653 for a free review of the delivery records. You Win or It's Free.

Which Birth Injuries Qualify for the Medical Indemnity Fund

Public Health Law § 2999-h covers a birth-related neurological injury, meaning an injury to the brain or spinal cord of a live-born baby from oxygen deprivation or mechanical injury during labor, delivery, or resuscitation, or from care given or withheld during the delivery admission, that leaves a permanent and substantial motor impairment or a developmental disability.^[1]

The child also needs a malpractice finding or a settlement, and a New York court order enrolling them in the Fund. Our page on what the Fund pays and what a family trades for it covers enrollment and payment.

Timing matters as much as the diagnosis. In Matter of B.L. v Lawsky, the Appellate Division read the statute to require that the injury itself happen during labor, delivery, or resuscitation, even where the negligent care came earlier in the pregnancy.^[2]

So a New York birth injury case starts with two medical questions, which part of the child was injured and when it happened, and the answers decide whether future care runs through the Fund or through the settlement.

Proving a Birth Injury Case, From the Certificate of Merit to the MRI

A birth injury case is a medical malpractice claim under New York law, so it has to show that the obstetric or newborn care fell below the accepted standard and that the departure caused the injury the child has.

Before the complaint is filed, CPLR 3012-a requires the lawyer to certify that a physician has reviewed the facts and that there is a reasonable basis for the case, with 90 extra days allowed when the filing deadline is about to run.^[9]

A birth case can need an obstetrician, a neonatologist, a pediatric neurologist, and a neuroradiologist who reads the MRI for when the injury happened.

The same timing evidence answers whether the delivery care caused the injury and whether the injury qualifies for the Fund, so it shapes the case from the first expert review.

How Much Is a New York Birth Injury Case Worth?

There is no typical number, and New York has no damage cap to set one. The value comes from the child's life care plan, the earning capacity of a child who has never held a job, and the pain and suffering of growing up with the injury.

When the Fund Takes the Future Medical Costs

For a qualifying injury, a settlement has to send the child's future medical expenses to the Fund, and a court will not approve it otherwise. The defendant pays nothing toward those costs. Pain and suffering, lost earning capacity, and the expenses before court approval are still paid in money, and the lawyer's fee is figured on the full award.^[10]

With the care costs routed to the Fund, the cash part of the case has to be argued on its own terms, and the Fund's enrollment status on the day of settlement becomes part of the negotiation.

When the Injury Is Outside the Fund

For Erb's palsy, a fracture, or any other injury outside the definition, the defendant pays everything, future care included, and the life care plan is priced into the award itself. Those care costs have to be proven in dollars, year by year, because no program will pick them up later.

How a Verdict Is Paid Over Time Under Article 50-A

Under CPLR 5031, past damages and up to $500,000 of future pain and suffering are paid at once, and above that amount the greater of 35 percent or $500,000 is paid immediately and the rest over no more than eight years, rising 4 percent a year. Future economic damages are paid 35 percent up front and the rest as an annuity the defendants must guarantee, and payments for a loss the jury finds permanent continue for the child's whole life.^[11]

A settlement is negotiated instead, and the court decides whether a child's share is held in an account or paid as a structured annuity.

What the Lawyer's Fee Can Be

Judiciary Law § 474-a caps malpractice fees on a sliding scale, from 30 percent of the first $250,000 down to 10 percent of anything above $1.25 million, figured on the recovery after case expenses and with no deduction for liens first.^[12]

For a child, the judge who approves the settlement also approves the fee, in the court order every child's settlement needs. Our page on how New York malpractice fees are calculated works through examples with real numbers.

How Long Do You Have to File a New York Birth Injury Claim?

A malpractice claim in New York has to be filed within two years and six months of the malpractice, or of the last treatment for the same condition.^[13]

For a child, CPLR 208 extends that period through childhood but never past ten years from the malpractice, so a birth injury that happened at delivery generally has to be in court by the child's tenth birthday.^[14]

The parents' own claim, for the medical bills they paid and the loss of their child's services, does not get that extension. The Appellate Division has held that the CPLR 208 toll does not reach derivative claims,^[15] so the parents' claim generally expires two and a half years after the malpractice while the child's is still open.

Continuous treatment can move those dates, as our page on every clock that runs on one New York birth injury explains.

If a baby does not survive, the estate brings a wrongful death claim within two years of the death, once Surrogate's Court appoints a representative, and a child's wrongful death in New York is valued under the pecuniary-loss rule.

Requesting the delivery and newborn records in the first year leaves time for the expert review before the parents' deadline arrives.

When the Baby Was Delivered at a Health + Hospitals Facility

Elmhurst, Bellevue, Kings County, Jacobi, and the other NYC Health + Hospitals facilities belong to a public corporation. A claim against one starts with a sworn notice within 90 days, the corporation can demand a 50-h examination of the claimant before suit, and the lawsuit is due within one year and 90 days.^[16]

Infancy does not excuse the 90-day notice. A judge can allow a late notice, and the statute tells the court to weigh in particular whether the hospital learned the essential facts in time, and to consider whether the claimant was an infant.^[17]

In a Nassau County case, the Appellate Division let a child serve a late notice because the county hospital held the mother's medical records and the delay caused it no substantial prejudice, and refused the same relief to the mother, whose own claim the child's age did not extend.^[18] Our page on suing a New York City public hospital lists every public hospital and the late-notice factors.

If the baby was born at one of these hospitals, the notice comes before the medical review, because the 90 days generally runs from the delivery.

What to Ask a Birth Injury Lawyer Before Signing a Retainer

A birth injury case can run for years and needs physicians paid long before any recovery, so a family is choosing who will carry that cost and that work.

• Licensed in New York since 2005, working from Astoria. Don Worley, New York Registration No. 4271706, handles these cases from the firm's staffed office at 32-56 Steinway Street, with a Midtown office open by appointment.
• $100 million recovered across 40,000 cases. The firm holds a 98 percent recovery rate across that work.
• Prepared for a jury from the start. We build a birth injury case for trial, and the hospital's insurer knows our reputation.
• No cost to the family while the case is built. The firm advances the physician reviews and the life care plan, and its fee comes only from a recovery, at the amount the court approves for a child.

Ask any firm you meet who will review the fetal monitoring strips, who pays for that review, and whether you will hear plainly if the records do not support a case.