How much does a birth injury lawyer cost?

How birth injury lawyers charge

Birth injury cases (for example cerebral palsy or hypoxic-ischemic encephalopathy alleged to result from care during labor and delivery) are medical malpractice claims, so the same fee rules apply. Lawyers almost always work on contingency, the agreement must be written and signed, and it must say whether case expenses are deducted before or after the fee.^[1] Many states cap malpractice fees, including California (25% before filing, 33% after),^[2] New York (a sliding scale starting at 30% of the first $250,000)^[3] and Florida (the family keeps at least 70% of the first $250,000 and 90% above that).^[4] The full verified list is on the medical malpractice lawyer cost page.

Why birth injury cases are costly to bring

• Several medical specialties: obstetrics, nursing, neonatology, pediatric neurology and neuroradiology may all need expert review to address both what went wrong and what caused the injury.
• Records: the mother's prenatal and labor chart, fetal heart monitoring strips, the newborn's NICU records and imaging, all of which take time to obtain and interpret.
• Lifetime damages: future care is usually documented with a life-care plan and an economist, which are case costs.
• Certificates of merit: many states require expert support at or before filing, such as New York's certificate of merit^[5] and Florida's verified expert opinion during presuit investigation.^[6]

Ask firms for their own expected cost range and whether you would owe any costs if the case fails.^[1]

Florida's NICA program

Florida runs a no-fault program, the Birth-Related Neurological Injury Compensation Plan (NICA), for a defined group of injuries. It covers injury to the brain or spinal cord of a live infant caused by oxygen deprivation or mechanical injury during labor, delivery or resuscitation in the immediate postdelivery period in a hospital, that leaves the child permanently and substantially mentally and physically impaired. The infant must weigh at least 2,500 grams at birth, or 2,000 grams per infant in a multiple birth.^[7]

• What it pays: actual medically necessary and reasonable expenses since birth (medical, habilitative, residential and custodial care, equipment, travel and more); periodic payments to family members capped at $250,000 from January 1, 2021, rising 3% each January 1; and a $50,000 death benefit.^[8]
• Attorney fees: reasonable fees subject to approval and award by the administrative law judge, who weighs factors such as time and labor and the customary local fee.^[8]
• Exclusive remedy: when NICA applies, it generally replaces a lawsuit against those directly involved in the delivery, except where there is clear and convincing evidence of bad faith, malicious purpose or willful and wanton disregard, and that suit is filed before and instead of accepting an award.^[9]
• Deadline: a claim filed more than 5 years after the birth is barred.^[10]

Because NICA can bar a malpractice suit, one of the first questions a Florida lawyer will investigate is whether the doctor and hospital participated and whether the injury fits the definition. That determination can shape the whole cost of the case.

Virginia's birth injury program

Virginia's Birth-Related Neurological Injury Compensation Act works similarly. It covers injury to the brain or spinal cord of an infant caused by oxygen deprivation or mechanical injury during labor, delivery or resuscitation in a hospital, that leaves the child permanently motorically disabled and developmentally (or, once evaluable, cognitively) disabled, permanently needing help with all activities of daily living. It excludes genetic or congenital abnormalities, degenerative neurological disease and maternal substance abuse. Unlike Florida, the definition has no birth-weight threshold.^[11]

• What it pays: medically necessary expenses not covered by government programs or private insurance, reasonable health insurance premiums, lifetime housing assistance, an adapted vehicle, up to $10,000 a year of psychotherapy for family members living with the child, funeral costs up to $10,000, and lost earnings presumed at 50% of the state's average weekly wage from age 18 to 65.^[12]
• Attorney fees: reasonable fees of the claimant's attorney can be included in the award, subject to approval and award by the Workers' Compensation Commission.^[12]
• Exclusive remedy: the program generally replaces other claims against participating providers, with exceptions for clear and convincing evidence of intentional or willful harm and for nonparticipating physicians or hospitals.^[13]
• Deadline: claims filed more than 10 years after the birth are barred.^[14]

Deadlines for children's claims

Many states give children extra time to sue, but the rules for birth injuries are often narrower than for other childhood claims. California's malpractice statute, for example, requires a child under six to sue within three years or before the eighth birthday, whichever is longer.^[15] Parents' own claims (for example for medical bills they paid) may run on a shorter clock. Do not assume you can wait until the child is an adult; confirm the deadline in your state early, and see each state page for the general injury deadline.

Questions to ask a birth injury firm

• Does my state cap your fee, and what is your percentage at each stage?
• In Florida or Virginia: does the no-fault program apply, and if so, how are your fees approved?
• Who pays for the initial record and expert review if you decline the case?
• Are costs deducted before or after the fee, and do we owe costs if we lose?^[1]
• How will any settlement for my child be approved and protected (for example a trust or structured settlement), and are those set-up costs deducted?