Are you hesitant to call a lawyer about your child’s injury?

Concerned mother holding her sick baby

Reaching out to a lawyer can be a difficult thing to do. Surprised to hear a medical malpractice lawyer say this? Before attending law school, I did not know any lawyers and had a stereotypical image in my mind – a very serious, unapproachable older man. I can gladly report that, for the most part, this is nothing more than a stereotype. From this vantage, I can understand how difficult reaching out to a lawyer or law office can feel. Despite knowing how intimidating calling a lawyer can feel, I often wonder why more parents don't call a lawyer when they have questions about the birth of their child or concern over neonatal care, particularly when the baby is seriously injured. Over the years, I have discovered that there are many common concerns. The reasons I hear time and again are:

  • I don't have the time or energy to deal with a lawyer
  • I can't afford a lawyer
  • I don't know what happened to my child
  • The health care provider saved my child's life or did their very best
  • I'm worried something I did caused the injury
  • I'm worried my child's ongoing care will be impacted
  • I'm out of time

I want to explore these reasons and offer answers and perhaps a new perspective.

I don't have the time or energy to deal with a birth injury lawyer

As a mom of two young kids, I can understand the hesitation that can happen when considering taking on something new or considering venturing down a new or unknown path. Something as simple as calling a law office might seem straightforward to an outsider looking in, but everything seems onerous when you are at capacity. I hope to take out some of the mystery and talk about what the time commitment looks like.

When you first call a medical negligence lawyer, you'll discuss what happened during your child's birth or neonatal care and how your child is doing now. The next step in the law is to obtain health records to review. Often we can have a follow-up meeting with the parents and give insight into what happened simply from our review of the records. These initial meetings have been virtual for the last few years, but if clients prefer, we also will meet in person.

After the initial calls or meetings, if we believe the case has merit, we move forward with obtaining expert opinions and commencing the lawsuit. For many parents, we provide updates, but they do not wish to be involved in the day-to-day happenings of the lawsuit. Most cases are managed internally without a significant time commitment from our clients.

The very real feelings of being overwhelmed with life's responsibilities won't be fixed by hiring a birth injury lawyer. That being said, the financial advantages of a successful lawsuit will help with these needs greatly. Our families often hire personal support workers to provide respite care and adapt their homes to allow for their child's wheelchair, including lifts and sometimes an elevator. The demands of a special needs child can increase with time, and we aim to provide the financial resources to help.

I can't afford a birth injury lawyer

Another comment many parents make during our first call is, "we don't have money to pay for a lawyer." We recognize the cost of lawyers can be significant, and when raising a child with special needs, every extra dollar counts towards the cost of services or devices.

The initial call with a lawyer requires no commitment or fee. Once you decide to proceed with an investigation or subsequent legal action, you will sign a contingency agreement, which means that the lawyer will be paid from the money the client receives at the end of the lawsuit. No legal fees are expected to be paid out of our client's pockets.

I don't know what happened

In initial discussions with potential clients, they often tell me they don't know how their child was injured. They are worried that without clear knowledge of an error, there is no way to prove what happened to their child. I always say the same thing – let us take a look at the records. There is no commitment at the investigation stage; it's essentially a fact-finding mission. In addition to compensation, which will provide care for their child and protection for the future, most parents want to know how their child was injured. After our initial investigation, we will advise on the strengths of the case and provide our recommendation for the next steps.

Even in cases without a viable medical malpractice claim, we provide everyone who consults with us more information than they came in with, often including answers about what happened to your child.

Did a health care provider save my child?

Maybe. Health care providers save lives every day. This includes those who deliver babies and treat newborns. We will let you know if your child was saved by a medical professional. The first step after contacting my law firm is an investigation. We hear your birth story, order the records and review them. There are certainly times when we tell clients that the health care team did everything right. In other cases, we find things the parents knew nothing about, or the information given to the family was incorrect. In some cases, the physicians did everything right, but the nursing staff failed to communicate with the doctors when they should have. There are also times when the problem is related to a hospital policy or protocol that is outdated or insufficient. Information is power, and having the entire story to make a decision will allow you to move forward in the best way for your family.

We have had cases where change was implemented as a result of the legal action being brought. In one case, our client's courage to move forward and find answers for why their son was injured resulted in an outdated policy being updated with information that will ensure future babies receive the treatment they otherwise wouldn't have when the deficient policy was in place.

Did I do something wrong?

Sometimes when I speak with a family, I hear "I knew something was wrong" or "If only I had….". This is an overwhelming feeling and one that can bring up feelings of immense guilt. You may have heard this before but let me take a minute to repeat it - nothing that happened to your child is your fault! Care providers must inform you about the risks and benefits of various approaches to labour and delivery or neonatal care. They monitor your baby to ensure that everything is proceeding normally and safely. Most parents do not know what fetal heart patterns are concerning or when labour is no longer progressing as expected. We rely upon our health care providers to give us the right information to make an informed decision. In many cases, fetal heart tracings tell a story about when the baby was hurt, what the health care providers knew and when. This allows us to take the guess work out of what happened during the labour and provide answers.

Will my child's ongoing medical care be impacted if I start a lawsuit?

Another common concern is how starting a medical malpractice lawsuit will impact ongoing care and treatment for your child, particularly when the injury occurred at a hospital where you continue to seek follow-up care. During the initial phase of our investigation, the hospital and doctors will not know you are considering legal action. Only after we determine that a breach of the standard of care occurred and a legal document called a Statement of Claim is prepared and served will any of the involved parties have any idea. Once the Claim has been served, the health care team and hospital will know that a lawsuit has been brought against them. In most cases, this will not impact your child's ongoing care. Typically, the nurses and physicians working in labour and delivery have no ongoing follow-up care with your child.

The only time where there may be some impact on going care is if you are suing your family doctor or another active treatment provider, and you will likely prefer to find a new health care provider in any event. In most cases, pediatricians, neurologists and other specialists following your child's care will not know about the lawsuit unless you tell them. Many of my clients continue to attend the same hospital without any issues.

Am I out of time to bring legal action?

Sometimes parents assume that because their child is 5, 10 or 15 years old, they are out of time to bring legal action. For children, this is simply not so. A child's two-year time limit to bring a lawsuit does not start to run until they turn 18. In cases where the child does not have the capacity, they are not subject to the running of a limitation period. My one caution for parents that plan to hold off on bringing legal action until some point in the future is that health records are not maintained forever. We require the mother's labour and delivery records in our birth injury cases. Some hospitals do not keep adult records beyond ten years, so I always encourage parents to contact us to ensure we can obtain the necessary medical files or to obtain the records themselves to ensure that nothing is lost or destroyed.

If you have any questions or concerns about your child's birth or care during infancy, which led to injury, I encourage you to reach out for an initial free consultation. Our team has extensive experience with birth and neonatal injury, and we are happy to address any questions or concerns you have about the process.


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