Birth Injury Litigation 101

​Have you been told that your baby has cerebral palsy?  Or Erb’s palsy? Did your baby suffer from hypoxic ischemic encephalopathy?  Does your child need life long medical care?  Are you wondering how you are going to pay those medical bills?  Are you scared of what will happen to your child if something happens to you?

​When a physician or other health care provider was negligent in the delivery of a baby, and injury results, we call it a “birth injury” or “birth trauma” case.  It is a sub-type of medical malpractice.  But at Hoffer & Sheremet we handle birth injury cases a little differently from a typical medical malpractice case.  We keep an eye on the future and do what we can to make sure your child will be taken care of in the years to come.  Contact our birth injury lawyers today for a free case review.  Read on to learn more about birth injury lawsuits.

How do medical malpractice cases work?

(If you have already read Medical Malpractice 101, skip down to learn how birth injury litigation is different.)

Medical malpractice” refers specifically to negligence committed by a licensed healthcare provider, such as a doctor or nurse, or a licensed health facility, such as a hospital or doctor’s office.

To prove the healthcare provider was negligent, the patient must establish the applicable standard of care and prove that standard of care was “breached” (i.e., not followed) – this is what is commonly referred to as “negligence”.  A healthcare provider is “negligent” when he or she failed to act as a reasonable doctor, nurse, nurse practitioner, physician assistant or other healthcare provider. What is reasonable is determined by what a healthcare provider with ordinary knowledge, training, and experience would have done in the same or similar circumstance.   Just proving the healthcare provider, or facility, was negligent is not enough to recover “damages” (monetary compensation for losses). The patient must also prove that the negligence caused an injury and that the injury resulted in damages (i.e. lost wages, medical expenses or pain and suffering).  We prove negligence, causation, injury and damages through the litigation process.  Litigation doesn’t just mean going to court and having a trial.  The litigation process starts months before a lawsuit is even filed, and oftentimes ends before a trial.  Here is an outline of the process:

Before A Lawsuit Is Filed: Investigation and Notice of Intent

It all begins with an email or a phone call.  After our initial consultation, our attorneys will work with you to obtain all of the relevant medical records.  We thoroughly review the medical records.  If negligence is clear, we attempt to settle your case without litigation by issuing a “demand”.  If the breach of the standard of care or your child’s injuries are less clear, we will continue our investigation by talking to subsequent treating physicians and retained expert witnesses.  If our investigation supports a lawsuit, we proceed with a Notice of Intent.

In Michigan, patients must provide each healthcare provider or facility with “notice” that the patient intends to sue.  We call this a “Notice of Intent” or “NOI.”  It must contain certain information, including (i) the factual basis of the claim, (ii) the applicable standard of care, (iii) the manner in which it is claimed the standard of care was breached, (iv) the actions that should have been taken to achieve compliance with the standard of care, and (v) the manner in which the breach caused the injury.  MCL 600.2912b.  The NOI must be served within the statute of limitations period.

Within 154 days of receiving the Notice, every healthcare provider or facility named must respond to the Notice of Intent, and identify (i) the factual basis for the defense of the claim, (ii) the applicable standard of care, (iii) the manner in which the healthcare provider or facility complied with the standard of care, and (iv) the manner in which the healthcare provider or facility contends the alleged injuries were not caused by the alleged negligence. The patient must then wait 182 days after providing the NOI before filing a lawsuit. The purpose of the 182-day waiting period is to give the parties a chance to settle.  During this time period, we will contact the healthcare provider or facility and their insurance companies and try to negotiate a settlement.  If we can’t settle the case pre-suit, we will file a lawsuit.

The Birth Injury Lawsuit

The Birth Injury Complaint and Answer

A lawsuit begins with the filing and service of a Complaint.  The Complaint details the allegations against the healthcare provider or facility.  The patient (or the patient’s family if the patient has died) is called the “plaintiff.”  The healthcare providers or facilities being sued are called the “defendants.”  The defendants have either 21 or 28 days to file an Answer to the Complaint, depending on whether they were served in person or by mail.  Together with the Complaint, defendants will typically file “Affirmative Defenses,” which are legal defenses they may raise to the claim.


After the Complaint is filed, and usually after the defendant has filed an answer, “discovery” begins.  This is the chance for each side to learn the other side’s position – what documents they have and what their witnesses will say at trial.  There is written discovery as well as depositions.  Depositions are formal, verbal question and answer sessions.  Fact witnesses – the patient, patient’s family members, anyone who witnessed the healthcare and treatment or the injuries, and the defendants – are typically deposed first. Expert witnesses retained by the parties are usually deposed later in the case.  You can read more about the deposition process here.

Motion Practice

A “motion” is a request that the Court rule on an issue.  Throughout the discovery period, “discovery motions” are filed that order a party to respond to discovery or determine the scope of discovery.  After the discovery period ends, “dispositive” motions are filed.  These are motions that dispose of an issue, or sometimes the entire case.  Shortly before trial, Motions in Limine are filed, which will determine the admissibility of certain evidence or testimony at trial.

Alternative Dispute Resolution

After the discovery period ends, there are several opportunities for settlement.  Many times, the parties will work through their attorneys to reach a resolution.  But there are also most formal means of reaching an agreement, including case evaluation (where a 3-attorney panel suggests a settlement number), mediation (where each side works with a mediator to reach an agreement), and settlement conference (where the parties meet with the judge to discuss settlement).


If the case doesn’t settle, a trial date is set and the parties begin preparing.  Cases still settle during trial prep, and sometimes even after trial has started.

The jury is selected on the first day of trial, then opening statements are given.  The plaintiff presents his or her “case in chief” first.  This is where the plaintiff must, through documents and witness testimony, establish the elements of medical malpractice (standard of care, breach, causation, injury and damages).  Defendant will usually cross-examine each witness.

After the plaintiff’s case in chief, defendants usually make a “motion for a directed verdict.”  The defendant argues that the case should end at that point because the plaintiff failed to establish the elements of medical malpractice.  These motions are rarely granted. Next, the defendants present their witnesses.  Sometimes, the plaintiff will call rebuttal witnesses after the defendants’ witnesses are done.

​After all of the witnesses have testified, the parties give closing arguments – first the plaintiff, then the defendant.  The plaintiff usually gets the last word, and gives a brief rebuttal argument.  Then jury instructions are given and the jury deliberates.  The jury could deliberate for minutes, hours or days.  The jury returns with either a verdict for money damages for the plaintiff or a verdict of “no cause,” which means the defendant won.

After Trial

Litigation does not end with a verdict.  Post-trial motions are filed either to overturn the verdict or to lower the amount of the verdict.  After those motions, the Court enters a judgment.  That judgment is usually appealed.  The appeal process generally takes at least a year and can take several years.  Sometimes cases settle during the appeal period.

The Court of Appeals will either affirm the judgment or, if there were errors during the trial that affected the outcome, reverse and remand for further proceedings.  Either party can ask the Michigan Supreme Court to review the Court of Appeals’ order.  If the Court of Appeals affirms, and the Supreme Court does not hear the case, the defendant must pay any judgment amount.  If the Court of Appeals remands (and the Supreme Court does not hear the case), more proceedings are held in trial court.  Sometimes this is just to adjust the judgment amount, but sometimes it could mean a whole new trial.  If the Supreme Court hears the case, it will either affirm the Court of Appeals or remand to either the Court of Appeals or trial court for further proceedings.

The litigation process is long and cumbersome.  It is a roller coaster, filled with ups and downs.  At Hoffer & Sheremet, we recognize how difficult it is for our clients to go through this process.  That is why we consider every avenue available, from early settlement through trial and appeal.

The Difference With Birth Trauma Cases

If the baby survived, the first difference between birth injury lawsuits and typical medical malpractice cases is the statute of limitations.  (If your baby did not survive, the case proceeds as a wrongful death lawsuit.)  The statute of limitations in a medical malpractice case is typically two years.  However, in birth injury lawsuits, where the injured party is a minor, the limitations period is different.  Instead, when medical malpractice occurs before the child is eight years old, a lawsuit can be filed any time before the child’s tenth birthday.  Many times, the full extent of the birth injury is not known for many years.  A claim should not be filed until the extent of the injury is known.

Birth trauma case are usually filed by one of the parents on behalf of the child.  That parent is responsible for communicating with the child’s attorney, completing written discovery, sitting for a deposition in which the child’s medical condition, abilities, and disabilities are explored (both parents are typically deposed for this information), being the child’s representative at trial, and ensuring that settlement or judgment proceeds are handled properly.

That brings us to the last main difference between birth trauma cases and other medical malpractice cases.  When a child survives a birth injury such as cerebral palsy, many times medical expenses will continue into the future.  Your child may never be able to live independently.  The settlement or judgment will take these “future damages” into consideration.  But a settlement likely will not cover all future costs.

You need to make sure that settlement monies are properly handled so that your child remains eligible for certain services and that the money grows over time.  Hoffer & Sheremet works with a network of financial and legal professionals that will help you set up special needs trusts or ABLE accounts.  Before your settlement proceeds are distributed, we will help you make sure a long-term financial plan is in place so that your child is provided for throughout his or her lifetime.  You will have a financial team that includes a lawyer that specializes in drafting relevant documents, an accountant to ensure the most favorable tax treatment possible, an investment adviser to ensure the money grows, and sometimes a life-care planner.

What do I do next?

If your delivery was difficult and your child suffered a birth injury or died, call us today for a free consultation: 1.616.278.0888.  Or email us.

We will arrange to review your medical records, analyze whether the standard of care was breached, enlist experts when needed, and talk with you about the timing of bringing a lawsuit.  When the time comes, we have a network of expert witnesses who have experience testifying in birth injury lawsuits, such as obstetricians, maternal-fetal medicine experts, neonatal intensivists, physical therapists, occupational therapists, speech therapists, and life care planners.  We will walk you through your lawsuit step-by-step, ensuring that you understand every stage of the proceedings, and what to do in the future after the lawsuit.