Considering a birth injury malpractice lawsuit? Worried about how long the process could take? You'll usually see estimates between 1 and 5 years, but it all depends on the unique facts at issue in your case.
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Before a thorough case review, no attorney can even hope to predict how long your birth injury suit might last. Learn more about your legal options in a free consultation today.
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You're anxious to wrap up your child's birth injury case as soon as possible. Pursuing legal action is stressful, especially for parents who have children to take care of. Litigation can also be time-consuming, no matter how much of the work your birth injury attorney handles for you.
Birth-Related Negligence: How Long Until Resolution?
Most plaintiffs spend an inordinate amount of time worrying about their case, reviewing the facts and legal issues over-and-over, trying to identify holes in their own arguments and, most importantly, wondering what a huge victory, or total defeat, could mean for their family.
That's just human nature. When we assume a major undertaking, most of us tend to worry about it. Some of us worry about it a lot.
It's no wonder, then, that one of the most common questions our attorneys get is about the length of a typical case. How long does the average birth injury lawsuit last, from beginning to end? How much time can we expect to be wrapped up in litigation? When can we go back to our lives?
It Won't Be Quick.
Unfortunately, all of these questions are impossible to answer, though there are a few possible scenarios that we can rule out as a matter of course. Your lawsuit will take longer than a few weeks. And it'll take longer than a few months, too. At a minimum, you should expect the litigation process to last at least a year, but be prepared for longer.
Estimating The Average Length Of A Birth Injury Lawsuit
In some places, you'll see law firms explain that the average birth injury lawsuit takes between 18 months and 2 years. Some firms have a more positive perspective, suggesting litigation durations between 1 and 2 years. Beyond the personal experience of any one attorney, there's statistical evidence, though limited, to support both of these characterizations.
Between 1 & 2 Years
A 2017 report from Washington State's Office of the Insurance Commissioner, for example, notes that, out of 5,237 total malpractice claims completed during the year, 32% ended within 12 months, while another 31% took between 12 and 24 months.
Between 1.5 & 4 Years
A more general analysis reveals similar facts for the nation as a whole. In 2012, doctors from Harvard Medical School used data from a national malpractice insurer to evaluate the duration of malpractice claims that resulted in some form of defense cost.
On average, the claims took 19 months to resolve, with claims that resulted in litigation taking an average of 25.1 months, authors report in the Journal of the American Medical Association. Malpractice lawsuits that ended in an out-of-court settlement took an average of 28.5 months, while cases resolved through a jury verdict lasted around 43.5 months.
Around 4.5 Years
A similar study in the American Journal of Surgery, albeit much smaller and looking only at closed malpractice claims involving New York surgeons, found an average resolution time of 4.5 years. The cases in this study that went to trial lasted an average of 5 years.
Are Birth Injury Cases Different?
As we can see, the available statistics provide us with a broad range of estimates. Medical malpractice lawsuits, on average, take between 1 and 5 years to reach a resolution, but within this range there's significant room for variation.
One thing to note before we continue is that all of the statistics we just cited pertain to medical malpractice lawsuits in general, not birth injury claims specifically. It's quite possible that birth injury lawsuits are exceptional in some way, which makes them either longer or shorter, on average, than your typical cancer misdiagnosis or botched surgery case.
For example, birth injury lawsuits tend to result in higher damage awards than other types of malpractice, since the "plaintiffs" (injured children) often require compensation for a life-time of medical care. Defendants who fear losing a lot of money at trial may be more motivated to offer generous settlements, which could speed up the course of litigation.
How Settlement & Trial Impact Case Length
Like all medical malpractice lawsuits, birth injury cases come down to unique factors that just can't be generalized to make predictions about individual cases.
Moreover, every birth injury lawsuit is, at bottom, a dispute between two (or more) parties. In the abstract, we call these people "plaintiffs" and "defendants." In reality, they're parents, children, obstetricians, nurses, medical offices, hospitals and malpractice insurance companies.
All of these players face different incentives in the courtroom. Families, for example, usually want their case to wrap up quickly. Some defendants, on the other hand, may want to drag out legal proceedings as far as possible, in an attempt to exhaust the plaintiffs' resources or a plaintiffs' attorney's patience.
The Role Of Settlement In Lawsuit Duration
Most defendants are motivated to settle, because settlement agreements tend to be cheaper for them than defending a case at trial. And reaching a settlement, in all but the rarest cases, takes far less time than actually trying a case in court. A lot of plaintiffs are motivated to settle, too, for much the same reasons.
This willingness to sit down and hammer out a deal certainly cuts down on the amount of time spent litigating a case, at least in comparison to a universe where every birth injury lawsuit went to trial. But settlement negotiations don't always work out.
Why Do Some Cases Go To Trial?
Again, it all comes down to the details of the case. With an airtight case of medical negligence, plaintiffs can probably expect to reach a settlement agreement fairly quickly, but "quick" is a relative term and there's no medical malpractice insurance company that won't at least attempt to defend itself. In a highly-disputed case, on the other hand, where medical evidence diverges on the appropriate standard of care, doctors and their insurers are more willing to fight against assuming liability with far stronger tactics - and for a much longer time.
With this in mind, asking how long the average birth injury claim takes might actually be the wrong question. More correctly, the question should be "how long will our birth injury lawsuit take?" Obviously, there's no way for us to answer that more specific question.
On this point, as on so many others, your malpractice attorney is the best resource, because they have the most complete and deep understanding of the facts at issue in your case.
Why Do Lawsuits Take So Long?
Lawsuits take a lot of time; it's a complaint we hear all the time. Many of the delays, though, are just baked into existing law. We'll have to take these procedural issues into account to understand why pursuing compensation is usually a long-game.
After you've filed your initial court documents, you (or your attorney) must "serve" those documents on the defendant. State laws vary, but in most jurisdictions, you'll be given between 3 and 4 months to furnish the defendant with a copy of your complaint.
That's a pretty long time. Then, the defendant has a few weeks (usually three) to submit a response to your complaint, before this initial "pleadings" stage of the case is over. That's a baseline of 4 to 5 months, just in pleadings. And, of course, the defendant isn't obligated to file a response; they could also choose to file a motion to dismiss the case from the outset, or request more details on the allegations.
At this point, we're already looking at 5 or 6 months. Then, discovery begins. Discovery is, by far, the most time-consuming stage of a lawsuit. During the discovery phase, both parties to the lawsuit (plaintiffs and defendants) gain the right to demand information from each other.
Your attorney will work hard to identify the best information to buttress your case, but you should expect that a defendant will dispute at least some of your lawyer's requests. At the same time, every request for evidence production comes with a period of allowed response time.
In most jurisdictions, defendants are given at least 1 month to respond to a discovery request, either by producing the requested information or by disputing the request. As you can imagine, this process of discovery can get dragged out.
Working Within The Court's Schedule
It's especially important to remember that your lawsuit isn't proceeding in a vacuum. Most legal disputes (like a disputed discovery request) need to be heard and decided before a judge.
That means a hearing must be scheduled, so you'll also be fighting against the court's schedule, which could be booked out months in advance. The discovery phase can easily last for years in particularly-complicated cases. Even under the most advantageous circumstances, you should still expect discovery to take several months, if not longer.
Now, we're ready for trial. You're probably thinking, "Good, this is the short part!" And, while it's rare for a trial to last longer than two weeks (some only take a few days), you'll have to wait for pre-trial hearings to take place.
A lot of important questions have to be answered before a trial can start. Is there any evidence that should be excluded from trial? Are there pieces of evidence that the defendant has admitted to and should be taken for granted? Will the judge order you to sit down for a mediation session, one last chance to resolve the claim out of court? All of these hearings can take a few months to complete.
Getting A Trial Date
Then, we have to get a court date. That means working within a judge's jam packed schedule, so you might be waiting months before your case can actually go to trial. And if you think your case is necessarily over after the trial, you would be wrong.
Defendants can, and often do, appeal the jury's decision. Likewise, you have every right to appeal the decision, too, in the event that you think the judge made a mistake. Naturally, these rights are extremely important, but they can prolong litigation for months or even years after an initial trial has ended.