What filing actually involves
Filing a birth injury lawsuit is the end of a careful investigation, not the beginning of one. Before any complaint reaches a courthouse, the medical records are gathered, a qualified medical expert reviews the care, and, in most states, a formal certification or notice is prepared. For families, the process starts with two simple actions: requesting your records and asking an attorney to review them for free.
That order matters. A birth injury claim alleges that the care your family received fell below the accepted medical standard and that the failure caused your child’s injury: conditions like HIE, kernicterus, or cerebral palsy. Not every birth injury is malpractice, and the only reliable way to know which side of that line your family is on is to let qualified people read the records. Everything below describes how that happens, step by step.
Step 1: Request the medical records
Under the federal HIPAA Privacy Rule, you have a legal right to copies of your own medical records and, as a parent, your minor child’s. The hospital cannot refuse because you might sue, and federal information-blocking rules (the 21st Century Cures Act) prohibit providers from unreasonably delaying access.
For a birth injury investigation, the records that matter most are:
- The complete labor and delivery chart: nursing notes, physician orders, medication records, and operative reports.
- Electronic fetal monitoring strips: the continuous heart-rate tracings that show what the care team saw, and when. These are frequently the single most important piece of evidence.
- Prenatal records from the obstetrician’s office, including ultrasounds and lab work.
- The baby’s NICU chart: Apgar scores, cord blood gases, imaging, bilirubin levels, and treatment timelines.
Submit the request in writing to each facility’s medical records (health information management) department, and ask specifically for the fetal monitoring strips; they are sometimes stored separately and omitted from standard record productions. If you hire an attorney first, the firm handles all of this for you, which is usually faster and more complete.
Step 2: Get a free attorney case review
Birth injury attorneys review cases at no charge, with no obligation. A good initial review covers three questions: what happened medically, whether the timeline suggests the standard of care may have been breached, and whether your state’s filing deadline still leaves room to investigate. Deadlines are the urgent part: some states, and all claims against government-run hospitals, impose notice requirements measured in months rather than years.
You will not be asked to decide anything at this stage, and a candid firm will tell you plainly if the records do not support a claim. That answer, even when it is “no case,” gives many families something the hospital never provided: a clear explanation of what happened.
The first step costs nothing and decides nothing. Send us what you have (even just the discharge summary) and our attorneys will tell you plainly whether the records are worth a full expert review.
Step 3: The medical expert review
No reputable firm files a birth injury lawsuit on an attorney’s opinion alone. The complete records go to independent physicians (typically a board-certified obstetrician, and often a neonatologist or pediatric neurologist) who answer two questions: did the care fall below the accepted standard, and did that failure cause this child’s injury. Both answers must be yes for a case to proceed; proving medical negligence requires expert testimony in every state.
This review typically takes several weeks to a few months, and the firm advances its cost. If the experts find the care was reasonable, the case ends there, at no cost to the family.
Step 4: Pre-suit requirements
Most states put a formal gate between the expert review and the courthouse. Depending on where the care happened, filing may first require:
- A certificate or affidavit of merit: a sworn statement that a qualified expert has reviewed the records and found a reasonable basis for the claim. Roughly half the states require some version of this.
- Pre-suit notice: a formal letter to each defendant a set period (often 60–182 days) before filing, required in states such as Florida, Michigan, and Tennessee.
- A notice of claim for government hospitals: public and federally funded facilities have their own short administrative deadlines. Claims involving military hospitals, VA facilities, and federally qualified health centers follow the federal claims process instead of state procedure.
- Screening panels: a handful of states route claims through a medical review panel before or alongside suit.
These requirements are technical, unforgiving, and entirely your attorneys’ job. Missing one can end an otherwise valid case, which is why the deadline conversation in Step 2 matters so much.
Step 5: Filing the complaint
The lawsuit itself begins when your attorneys file a complaint: a document identifying the defendants (typically the delivering physician, other involved clinicians, and the hospital), the negligent acts alleged, the injuries, and the damages sought. Each defendant is formally served and has a set time, usually 20 to 30 days, to respond. Because the injured child is a minor, the case is brought by a parent or guardian on the child’s behalf, and any eventual settlement will require court approval, a protection built in for the child.
What parents do vs. what attorneys do
| Stage | Your family’s part | Your attorneys’ part |
|---|---|---|
| Records | Sign authorization forms; share any records or photos you already have | Request, chase, and organize complete records from every facility, including monitoring strips |
| Investigation | Tell your story once, in detail; keep a simple journal of your child’s care and milestones | Retain and pay medical experts; build the medical-legal timeline |
| Pre-suit | Nothing; stay off social media about the case | Prepare certificates of merit, notices, and panel submissions on deadline |
| Litigation | Sit for one deposition; attend occasional medical evaluations | All filings, depositions, expert work, negotiation, and trial |
| Resolution | Make the final decision on any settlement offer; that choice is always yours | Advise on offers; obtain court approval; structure funds for the child’s lifetime needs |
Two habits help more than anything else: keep every appointment record and bill, and write down what you remember about the delivery now, while it is fresh. Memories fade; contemporaneous notes do not.
What happens after filing
Filing opens discovery (the exchange of documents, written questions, and depositions) followed in most cases by settlement negotiation or mediation, and only rarely by trial. The full sequence, with realistic duration ranges for each phase, is laid out in our birth injury lawsuit timeline. What it costs, and why families pay nothing up front, is covered in how birth injury lawyers are paid.
Frequently asked questions
How long do I have to file?
It depends on your state and on who was injured. Many states pause the deadline for a child’s own claim, but a parent’s claim and government-hospital notice requirements can expire within one to two years of birth, sometimes sooner. Check your state’s rule early.
Do I need the medical records before contacting an attorney?
No. It helps to have whatever you kept (a discharge summary, NICU paperwork), but firms routinely order complete records themselves after you sign an authorization. Do not wait on a slow records department to ask for a review.
What does it cost to file?
Nothing out of pocket. Birth injury cases are handled on contingency: the firm advances all costs, including expert fees and filing fees, and is paid only from a recovery.
Will I have to go to court?
Usually not more than once. Most parents sit for a single deposition, and the large majority of birth injury cases resolve by settlement rather than trial. If a trial does happen, your attorneys prepare you thoroughly.
What if the hospital says nothing went wrong?
Hospitals conduct their own internal reviews and rarely share them. A hospital’s assurance is not a medical-legal analysis of the records; an independent expert review is the only way to get one.
Sources
- U.S. Department of Health & Human Services, Office for Civil Rights. Individuals’ Right under HIPAA to Access their Health Information. 45 C.F.R. § 164.524.
- 21st Century Cures Act, Pub. L. 114-255 (2016); ONC Information Blocking Rule, 45 C.F.R. Part 171.
- American College of Obstetricians and Gynecologists. Intrapartum Fetal Heart Rate Monitoring: Nomenclature, Interpretation, and General Management Principles. ACOG Practice Bulletin No. 106.
- Special Committee on Medical Professional Liability, American Academy of Pediatrics. Policy statements on expert witness participation in malpractice litigation. Pediatrics.
- National Conference of State Legislatures. Medical Liability/Medical Malpractice Laws, certificate of merit and pre-suit requirement surveys.
This page is for general education and is not legal or medical advice. Procedures vary by state; the reviewing attorneys practice in New York, Washington D.C., Pennsylvania, and New Jersey, and the alliance works with a vetted network of local attorneys elsewhere. Deadlines and pre-suit rules change, so confirm the current law of your state with an attorney.