When birth injuries occur, it can be due to medical negligence and parents may find themselves asking what their first course of action should be. Katherine McArthur shares insights into what it is like working in medical malpractice law and how cases progress when babies suffer from injuries at birth.
What should be the first course of action for someone to take if their newborn has suffered an injury at birth?
The first thing to determine is whether the baby has long-lasting health problems due to the injury at birth. Once parents are past the throws of the initial stages of how their baby is going to progress, they must contact a lawyer who handles birth injury and medical malpractice cases and have a consultation to discuss what has occurred and whether or not the problem the baby has is considered to be something that the baby will overcome with time, or whether it is going to create permanent problems; a lot of things that happen at birth look bad initially, but sometimes, it eventually progresses into the baby being fine in the long run.
The victim is not in the position to collect evidence for their case.
On the other hand, there are things like brain injuries and dislocations where nerves are injured and serious injuries will cause permanent problems. This is when an attorney should be attained in order to follow the progress of the baby's recovery. The attorney may then choose to send a spoliation letter, insisting that all medical records be maintained and that no documents from the birth are lost or destroyed. I think it is always desirable to be on the case early, from my perspective, especially if it is a serious injury that may have permanent consequences.
Should those that are victim to such negligence collect evidence for the case prior to seeing a lawyer or should they worry about that after seeking legal help?
The victim is not in the position to collect evidence for their case. Oftentimes, if parents ask for medical records, the hospital will not provide them with it. So I do not expect clients to come to me with evidence prior to getting in touch with me, or even after.
The only thing that may work is taking pictures or videos of anything that may be of interest that you cannot duplicate at a later time.
How long can parents sue after their child is victim to a birth injury or negligence?
I would advise anyone who is being offered any type of payment from the medical provider or team to get in writing what is being offered
This is something that varies by state in the US. In Georgia, there is typically a two-year statute of limitations for medical negligence. In the case of a birth injury, the lawsuit for the injuries to the baby is something that can be filed all the way up until the child is seven years old, however, the medical bill still has to be filed within two years. Ideally, the case really needs to be filed within two years if the medical bills are going to be requested as part of the recovery. At times, people don't come within two years to see me. In that event, when it involves an injury at birth, they would still have until the child is seven for that lawsuit to be filed.
Is it advisable for parents to take payouts offered prior to consulting a legal expert?
No, it really isn't. Payments that have been made on behalf of the hospital or medical provider or the practitioner who was in charge of the birth, could come with a release that the individual – who is most likely not an attorney - won't understand; they could easily be signing their case away. I would advise anyone who is being offered any type of payment from the medical provider or team to get in writing what is being offered, what is going to be required in order to get that payment and be certain that they do not sign anything. At times, there is even a release at the back of the cheque so people need to be very careful to ensure they don’t sign away their right to filing a case against the hospital, or the parties involved.
Do clients that have signed anything prior to seeking legal advice have much of a case?
It will be a minimum of two to three years before the case will be resolved by settlement or verdict, unless, it is a case where negligence is easily proven and accepted.
It would depend - you cannot release the case and then file a lawsuit and make any additional claims. You cannot take partial payment early, so generally speaking, even though it is very difficult for families - especially if the problems are caused by somebody's carelessness and it is very well known and admitted -, the patient still has to be responsible and wait to see even one dollar of payment handed over until the whole case has finished, which could be as long as two or three years post filing a claim.
How long on average does it take for disputed parties to conclude a settlement?
Some cases don't settle and that means they will have to be trialled to a jury verdict; typically on a case involving an injury to a child, you wouldn't want that case to be handled quickly, because you would sometimes need years to know what the full implications of the injury to the child's future are. So, unfortunately, you may have to wait a period of time before the case is closed if the baby has suffered an injury.
It will be a minimum of two to three years before the case will be resolved by settlement or verdict, unless, it is a case where negligence is easily proven and accepted.
If both parties cannot agree to a settlement, then, as mentioned, it will progress to a jury verdict which also prolongs the process. Lawyers will need to hire experts, from OBGYNs to nurses, midwives, to an economist to decipher the medical costs at hand, we often need more than a handful of experts on our side. Therefore, a lot of depositions are going to need to be taken which is very costly and time consuming.
From there, you need to wait for your turn on the Court docket which is often backed up with cases. Just the other day, I was scheduled for a trial in 2021. It is a very long and expensive process, so only the strongest cases of malpractice make it through.
It is crucial to have experts that are good communicators and for the lawyers to build their case to the jury as concisely and short as possible.
How do you ensure that all victims are given a voice or are heard?
This is a tough one. As one of the problems with this type of work is that if you have a settlement, almost 99.9% of the cases require confidentiality, so you and your client cannot tell anyone that the malpractice occurred, which I find to be a cancer on the system, because I think people have a right to know which doctors have had major lawsuits against them.
If you actually try the case in Court, then the victims can testify and speak out loud to the public, but as mentioned, only a few cases make it to a jury verdict. I try to reassure my clients that they are being heard by filing a lawsuit and that the medical professionals are being held responsible by virtue, regardless of it being a settlement or in front of a jury. Most of the time, those who want me to represent them are fighting because they do not want this to happen to somebody else. They are not as concerned about getting money as their preference would be that the doctor or nurse loses their license. Unfortunately, the only remedy in a civil context are receiving payment for the monetary damages.
What are your tips for ensuring you get the results you want for your client?
The most important thing to do is to be very detailed orientated, make sure you know everything about the case and that you get an expert in an area if you need one. Making mistakes about the medicine will lose a case every time, so you need a professional consultation with experts who will allow you to know more about it. It always helps to have videotape evidence of how the child is progressing and what types of things they go through, such as when learning to walk or showing what their daily life is like and what their needs are. This is crucial to the jury understanding how severe the situation is. It is crucial to have experts that are good communicators and for the lawyers to build their case to the jury as concisely and short as possible. The attention span of younger jurors now is growing shorter.
Katherine McArthur
6055 Lakeside Commons Drive
Suite 400
Macon, GA 31210
Phone: 478-238-1150
Kathy McArthur is a personal injury attorney who has served the greater Macon, Georgia, community for more than three decades. During that time, Kathy has dedicated her legal practice to ensuring injury victims, no matter their backgrounds or ability to pay an attorney, have a voice in the courtroom. Kathy is board certified in civil trial advocacy by the National Board of Trial Advocacy and is also a member of the Multi-Million Dollar Advocates Forum. Kathy and her legal team have secured over $250 million in recoveries for her clients over the years. She focuses her practice on truck wrecks, automobile wrecks, and medical malpractice.
Personal injury lawyers in Georgia typically charge the same rate for attorneys fees across the board. Because of this, a new attorney with little to no experience in court will cost the same as Kathy. She encourages potential clients to review any lawyer's history of verdicts and settlements, as well as past client testimonials, before hiring an attorney. Kathy is a fighter who prides herself on fully investigating every case and preparing for trial in every situation. This preparation then lets the defendants know she's serious about proving the case in court if a full and fair settlement offer is not made. When the cases go to trial, her record-breaking verdicts are a testament to her litigation skills.
