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how long do you have to sue for a birth injury

Your baby’s birth should be one of the most memorable times of your life. But sometimes, this momentous event comes with severe complications that can make it quite traumatic.

Infants and mothers can suffer severe injury when delivery room doctors, nurses, or other healthcare professionals make mistakes or act negligently. If you or a child suffer an injury during the birthing process, you may ask, How long do you have to sue for a birth injury?

In Indiana, the statute of limitations for a birth injury is two years after the injury occurs. Subject to limited exceptions, you have two years to sue for malpractice. Birth injury lawsuits can be complicated. Gerling Law Injury Attorneys can provide support and explain the legal process for a birth injury case.

What Is a Birth Injury?

Sometimes, a child suffers from birth defects that can occur early during the pregnancy or even before the pregnancy. On the other hand, a birth injury occurs because something went wrong during labor and delivery. They are mainly caused by medical errors or negligence. When medical professionals make mistakes, mothers and infants can suffer severe, life-altering injuries. In the most extreme cases, medical negligence can result in death. 

Medical Malpractice Statute of Limitations

Knowing the child birth injury statute of limitations is essential when a birth injury occurs. State law provides a time limit to bring cases before a court. These time limits are codified in the state’s statute of limitations, which must be strictly followed. Once this time has passed, you cannot bring the claim or pursue damages. Thus, it is critical to understand the applicable time limits. 

How Long After Birth Can You Sue for Malpractice? 

The birth injury statute of limitations gives the injured two years to sue. The Indiana medical malpractice statute of limitations covers birth injuries. It provides two years from the date of the injury to bring a claim. 

What Are the Exceptions to the Statute of Limitations?

The statute of limitations clock runs from the day malpractice occurred. But, there are exceptions to Indiana’s statute of limitations on a birth injury. 

The patient was a minor under six years old

An exception to the two-year statute of limitations for minors is especially applicable in birth injury cases. Under Indiana law, when an injured patient is under six years old at the time of the malpractice, the law allows additional time to file. 

Parents or guardians must file a medical malpractice suit by the child’s eighth birthday. There are no other medical malpractice exceptions based on the child’s age. 

The discovery rule

It may take years for medical malpractice to become apparent. For example, a serious disability may not present until years after birth when a child misses developmental milestones. When the victim of malpractice was unaware of the injury when it occurred, the discovery rule applies. The statute of limitations does not begin to run immediately. Instead, it starts when the patient discovers or should have discovered the alleged medical malpractice and injury. 

You must provide objective evidence to show that you could only discover substandard care or symptoms of injury after the deadline. The court must know when medical malpractice may have occurred or when you reasonably could have discovered the malpractice. The court will use the date of discovery as the new due date to calculate the statute of limitations.

Medical Review Process Tolls the Statute of Limitations

To prevent frivolous medical malpractice claims, Indiana requires a showing of proof before the case is allowed in court. This is called a medical panel review. Indiana law requires those suing for over $15,000 to submit a proposed complaint to the Indiana Department of Insurance

The Medical Review Process

You must file the complaint before the statute of limitations expires. Filing the complaint starts the medical review process, which is overseen by the Indiana Department of Insurance. 

The medical review process consists of an attorney and three healthcare providers selected by the parties. Subject to a few exceptions, you can only file a case in state court once the medical panel reviews the case. In some circumstances, parties can mutually agree to waive the medical review process. 

Impact of the Medical Review Process on the Statute of Limitations

The statute of limitations tolls or pauses when the medical review process begins. The limitations period tolls even if the original statute of limitations expires. Once the panel reviews the evidence submitted by each side and offers expert opinions, the filing party has 90 days to file the lawsuit. The panel’s opinion, no matter the outcome, may be admitted as evidence in a subsequent case.

Compensation Available for a Birth Injury

A birth injury can alter your child’s life and cause significant financial and emotional burdens for your family. Depending on the seriousness of the injury, it may require lifetime care. 

If you can establish a claim for medical malpractice for a birth injury, you might be eligible for compensation for any of the following:

  • Medical expenses,
  • Physical and occupational therapy,
  • Modifications to accommodate an injury-related disability,
  • Costs of special education due to cognitive disabilities from the injury,
  • Pain and suffering,
  • Loss of enjoyment of life, and
  • Emotional anguish.

Birth injuries are unique. Various factors affect how much compensation you can recover for a birth injury. The most reliable way to determine whether you have a compensable claim is to speak with a lawyer.

Contact Gerling Law Today

Dealing with an injury during the birthing process is complicated. Gerling Law attorneys are here to listen to your story and provide the guidance and support required for each step. We can walk you through this difficult time with compassion. Our experienced legal team has decades of experience, and we can explain your right to recover compensation for a birth injury. Contact Gerling Law for a free, no-obligation initial consultation. We will not bill for services unless we recover compensation.

Author Photo

Gayle Gerling Pettinga

Born and raised in Evansville, Gayle is a respected, experienced lawyer and a valued community leader. She graduated near the top of her class at Indiana University’s prestigious Maurer School of Law. She’s practiced law with one of the largest firms in Indianapolis as well as one of the largest pharmaceutical companies in the world. And that means she knows how big law firms and big companies think and how they operate – and she will put that knowledge to work for you.

Gayle has received numerous awards and honors including Martindale-Hubbell — Peer Review Rated: AV®, American Institute of Personal Injury Attorneys 10 Best Attorneys in Indiana for Exceptional and Outstanding Client Service, and YWCA Evansville 100 Years, 100 Women Honoree, 2011.

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