Over the past few weeks, our team has talked with three sets of parents who have three and four year old children with brain injuries called hypoxic ischemic encephalopathy (HIE). Although they all believe that the injuries occurred around birth, they’ve only now started to try and hire an attorney to get much-needed help.
There are a lot of reasons parents in this situation might wait a year, or two, or three before contacting a Texas medical malpractice birth injury lawyer. Sometimes it’s simply being overwhelmed by the unexpected reality of caring for a baby who will have significant special needs of her lifetime. Other times, the injuries aren’t obvious at birth and only reveal themselves over time—this can be particularly tricky because babies take time to grow and develop. Still other times, parents find themselves in a state of denial from which they only emerge after a few years of reality setting in.
Waiting to investigate a medical malpractice claim can have real consequences. Some people get false reassurance that they have plenty of time by doing online research. Just like it’s dangerous to self-diagnose by browsing WebMD instead of seeing a physician, there’s no substitute for getting advice from an experienced medical malpractice attorney.
Are Online Searches Enough?
The statute of limitations is a good example. In general, the negligence statute of limitations in Texas is two years. But, Texas Civil Practice & Remedies Code Section 74.251(a) says that, “minors under the age of 12 years shall have until their 14th birthday in which to file, or have filed on their behalf, the claim.” This statute understandably causes many parents to conclude that they can file a lawsuit for a birth-related brain injury up until the child’s 14th birthday.
In reality, though, the answer to the question of whether a plaintiff can wait to age 18 to file a birth injury case is part yes and mostly no. And it’s mostly no because it can often wreck a potential case. Read more in our aritcle how labor and delivery nurses and obstetricians share responsibility to avoid birth injuries.
Consider the issue of damages. Damages are harms and losses that a medical malpractice victim suffers. At trial, the jury is asked to award damages for different categories, including past medical bills, future medical bills, past and future pain and suffering, and past and future mental anguish, among others.
Does the Clock Start at Birth or Continue to Tick?
In birth injury medical malpractice cases, the damages, or harms and losses, to the infant or child are substantial. Past medical bills and the cost of future medical care, therapy, equipment, and supplies are staggering. Physicians and therapists will tell you that providing the best medical care and therapy during the childhood years will optimize the baby or child’s outcome, rather than delaying such care until adulthood. Read our aritcle about how to pick the right Texas attorney for your HIE or birth injury medical malpractice case.
Under Texas law, a child’s legal damages (what a jury can award) are separated into two categories: birth to age 18, and age 18 plus.
What Determines the Value of Damages?
Up to the age of 18, the parents own those damages. If you think about it, this sort of makes sense because parents are legally responsible to take care of their children until they’re adults. When a person reaches the age of 18, the damages from that point forward belong to that individual, rather than the parents.
The distinction may not seem that meaningful until you overlay the impact of the statute of limitations. All damages from birth up to age 18 are subject to the general (adult) statute of limitations of two years. If parents rely on the statutory language to bring a lawsuit just before their child’s 14th birthday, they’ve waived the right to recover the immense damages for medical care, and everything else, that the child will require up through the age of 18. Check out our article on how therapeutic hypothermia cooling therapy may hide newborn brain injuries.
How Long Is Too Long to Wait for Legal Help?
In many—perhaps most—birth injury medical malpractice cases, life expectancy is a hard fought and fiercely disputed issue. The plaintiffs and defendants will each introduce medical expert testimony on the child’s life expectancy, and it will be up to the jury to decide who’s correct.
In many cases, defendants and their medical experts will argue that a brain-injured child’s life expectancy is only a few years—into the teens. If the parents didn’t seek legal counsel until after their baby’s second birthday, then they’ve lost the right to recover in court for any financial award for damages up the child’s 18th birthday. This means if the jury doesn’t believe that the child will survive beyond age 18, then the legal case has essentially no value. You can read another one of articles about how long to Texas parents have to file a birth injury or medical malpractice claim for a child.
Can Life Expectancy Make or Break a Case?
As a practical matter, the parental decision to wait and hire a birth injury medical malpractice lawyer after their child’s second birthday often means that they can’t find any competent attorney to accept their case. Birth injury cases are time consuming and enormously expensive to pursue, so there are many situations when it just doesn’t make sense for a lawyer to take on a birth injury case that is partially time barred.
At Painter Law Firm, we’re always willing to consider birth injury medical malpractice cases even when parents come to us after their child’s second birthday. Before we accept representation of such potential cases, though, we look for several factors. There has to be evidence in the medical records or diagnostic radiology imaging that the child’s injury occurred around birth. We look at the medical records for signs of labor and delivery negligence, and for negative results in any genetic testing that was done. The child’s injuries have to be catastrophic, meaning that the person will require a lifetime of care, either at home with home health nursing support, or in a facility. And the child’s medical condition must be stable, such that the life expectancy would reasonably be expected to extend long past the age of 18. Look at our article how Apgar Scores can quickly identify birth injuries, like a brain injury or cerebral palsy.
If your baby or child has been catastrophically injured because of labor and deliver or birth medical malpractice, the best time to contact an attorney with competence and experience in this complex area of the law is as soon as possible after birth. The second best time is now.
