Few moments are more devastating than learning that your newborn has suffered a serious injury due to suspected medical negligence. In an instant, what should have been a celebration becomes uncertainty, fear, and an urgent need for answers. Across New York, families continue to face the painful reality that preventable medical errors during labor and delivery can alter a child’s future forever.
Birth injuries such as cerebral palsy caused by oxygen deprivation, brachial plexus injuries including Erb’s palsy linked to shoulder dystocia, and hypoxic ischemic encephalopathy often require lifelong medical intervention. Children may need ongoing physical and occupational therapy, assistive technology, home modifications, specialized education services, and around-the-clock care.
In many cases, one parent must reduce or leave employment to meet these demands. According to current data, the lifetime cost to treat and care for someone with cerebral palsy is approximately $1.6 million in 2026 dollars, in addition to normal living expenses.
When pursuing a birth injury claim in New York, families generally face two possible paths toward resolution: a negotiated settlement with the healthcare provider’s insurer or a verdict after trial in the New York Supreme Court. A case that resolves through mediation within months presents a very different timeline and experience than one that proceeds through years of litigation and culminates in a jury decision. Neither option is universally better. The right approach depends on the strength of the evidence, the projected lifetime needs of your child, risk tolerance, and your family’s broader financial and emotional circumstances.
This article provides a clear, step-by-step explanation of how settlements and trials unfold in New York birth injury cases. The decision between settlement and trial is one of the most consequential choices a family will make, and it deserves careful, informed consideration.
If your child’s cerebral palsy resulted from medical malpractice during birth, from failure to monitor fetal distress, delayed delivery, improper use of forceps, or other preventable medical errors, you have the right to pursue legal compensation. At The Pagan Law Firm, we understand New York medical malpractice law and fight to help families recover the resources their children deserve for lifelong care, therapy, and quality of life.
Call us today at 212-967-8202 for a confidential consultation to discuss your child’s case and understand your legal options.
👉Also Read: When Should You Speak with a Medical Malpractice Lawyer in Brooklyn After a Medical Error?
Understanding Birth Injury Claims in New York
Not every complicated birth constitutes medical malpractice. Childbirth carries inherent risks, and adverse outcomes can occur even when providers act appropriately. However, many serious birth injuries in New York result from preventable medical errors. When a healthcare provider fails to meet accepted standards of obstetrical care and that failure causes harm, a viable birth injury claim may exist.
Understanding what qualifies as a legally actionable case is the essential first step for any family considering medical malpractice litigation.
What Is a Birth Injury Case?
In the context of labor and delivery, medical malpractice occurs when an obstetrician, nurse, midwife, anesthesiologist, or other healthcare provider departs from accepted medical standards, and that departure is a substantial factor in causing injury to the mother or child.
A birth injury refers to harm sustained before, during, or immediately after delivery that could have been avoided with proper medical care.
Common Examples of Negligence in New York Birth Injury Cases
| Type of Negligence | Description |
|---|---|
| Failure to monitor fetal distress | Ignoring or misinterpreting nonreassuring fetal heart rate tracings, including persistent Category III patterns |
| Delayed cesarean section | Failing to timely perform an emergency C-section when clinical signs indicate fetal compromise |
| Improper use of delivery instruments | Applying excessive force with forceps or vacuum extractors |
| Mismanagement of shoulder dystocia | Failing to implement accepted obstetrical maneuvers when the baby’s shoulder becomes impacted |
| Inadequate maternal monitoring | Not properly tracking maternal blood pressure, bleeding, or other warning signs, leading to stroke or other serious complications |
When these errors occur, the consequences can be catastrophic.
Injuries Commonly Associated With Birth Negligence
- Cerebral palsy
Often associated with prolonged oxygen deprivation during labor or delivery. - Brachial plexus injuries
Including Erb’s palsy and Klumpke’s palsy, frequently linked to excessive traction during shoulder dystocia. - Hypoxic ischemic encephalopathy
Brain injury caused by insufficient oxygen and blood flow. - Intracranial hemorrhage or skull fractures
Sometimes associated with traumatic instrument-assisted delivery. - Kernicterus
A preventable form of brain damage caused by untreated or improperly managed severe neonatal jaundice.
It is important to note that the presence of one of these conditions does not automatically establish malpractice. A thorough review of medical records and expert analysis is required to determine whether negligence occurred.
👉Also Read: What Are the Top Early Signs of Erb’s Palsy and When to Consult a Birth Injury Attorney in New York
Legal Framework in New York
To prevail in a medical malpractice claim in New York, a plaintiff must establish four essential elements:
1. Duty of Care
A doctor-patient relationship existed. This means the healthcare provider was responsible for the care of the mother and or child during labor and delivery.
2. Departure From Accepted Standards
The provider’s conduct represented a deviation from what a reasonably competent practitioner would have done under similar circumstances. In practice, this determination is almost always supported by expert medical testimony.
3. Causation
The departure must be a substantial factor in causing the injury. This is often the most contested element. Establishing causation typically requires testimony from qualified experts, such as obstetricians, neonatologists, or pediatric neurologists, who can link the medical error to the specific injury.
4. Damages
The family must demonstrate measurable losses. These may include:
- Past and future medical expenses
- Rehabilitation and therapy costs
- Specialized education and assistive equipment
- Lost earnings or loss of earning capacity
- Pain and suffering
New York does not impose a statutory cap on damages in medical malpractice cases, including birth injury claims.
Statute of Limitations and Special Rules
New York law imposes strict time limits for filing medical malpractice lawsuits, and these rules are nuanced.
General Rule
An action for medical malpractice must typically be commenced within 2 years and 6 months from the date of the alleged malpractice.
In certain limited circumstances, such as cases involving a foreign object left in the body, the period may run from the date of discovery. The so-called continuous treatment doctrine may also extend the filing deadline while the patient remains under continuous treatment for the same condition.
Tolling for Minors
When the injured party is a child, the statute of limitations is tolled until the child reaches 18 years of age.
Ten-Year Outer Limit
Despite tolling, medical malpractice claims on behalf of a minor generally must be filed no later than 10 years from the date of the alleged malpractice.
Additional notice requirements and shorter deadlines may apply if the claim involves a public hospital or municipal entity.
Because these deadlines are strictly enforced by New York courts, prompt legal evaluation is critical to preserving a family’s rights.
👉Also Read: Is Pitocin Misuse Grounds for a Birth Injury Lawsuit in New York?
What Is a Settlement in a New York Birth Injury Case?
A settlement is a negotiated agreement that resolves a family’s medical malpractice claims against healthcare providers and their insurers for a specified monetary amount and agreed-upon terms, without a jury verdict. In New York, the majority of medical malpractice cases, including birth injury claims, resolve through settlement rather than trial.
Once finalized and approved by the court when required, a settlement brings the litigation to a permanent close.
Definition and Process
In New York birth injury litigation, settlements may occur at several stages:
- Pre-lawsuit negotiations
Counsel may present a detailed demand package supported by medical records, expert opinions, and a preliminary life care plan before filing suit. - After filing but before trial
This is the most common stage for resolution. Settlements frequently occur after depositions of key witnesses or after expert disclosures clarify the strengths and weaknesses of each side’s case. - During trial
Even after testimony has begun, cases may settle if the defense reassesses exposure in light of how evidence is being received.
Mediation is commonly used throughout New York. A neutral mediator, often a retired judge or experienced attorney, facilitates structured negotiations. The process typically includes:
- A comprehensive settlement demand supported by a life care plan and economic projections
- A response from the defense and insurer
- Negotiated exchanges aimed at narrowing the gap between the parties
If agreement is reached on material terms, the case is resolved subject to formal documentation and, where a minor is involved, court approval.
Advantages of Settlement
Settlement offers several practical and legal advantages:
Faster Resolution
While complex cases vary, many birth injury claims that settle resolve within approximately 1 to 3 years. A fully litigated case that proceeds through trial and potential appeals can take significantly longer.
Reduced Emotional Strain
Settlement may spare parents and treating physicians from testifying in open court about traumatic events and contested medical decisions.
Greater Privacy
Trial verdicts are public record. Settlement terms can often remain confidential, subject to court approval requirements in infant compromise proceedings.
Certainty of Outcome
A negotiated agreement guarantees a defined financial recovery. By contrast, trial carries risk. A jury may return a lower verdict than anticipated or, in some cases, find no liability.
Potential Drawbacks
Settlement is not without limitations:
Possible Lower Recovery Than a Peak Verdict
In catastrophic injury cases, New York juries have returned substantial verdicts, including multi-million dollar awards in cases involving profound neurological injury. A negotiated settlement may reflect a compromise based on litigation risk.
No Formal Finding of Negligence
Settlement agreements typically contain no admission of liability. The defendant may expressly deny wrongdoing as part of the resolution.
Finality
When the injured party is a child, the court must approve the settlement through an infant compromise order. Once approved, the agreement is binding and cannot be reopened except in extremely limited circumstances.
Structured Settlements and Long-Term Planning
In significant birth injury cases, particularly those involving lifelong impairment, part of the recovery is often structured rather than paid entirely in a lump sum.
A structured settlement uses an annuity to provide periodic payments over time. These payments may be tailored to cover:
- Ongoing therapy and rehabilitation
- Attendant care or nursing services
- Replacement of lost earning capacity
- Future medical equipment and home modifications
Structured payments can be coordinated with a supplemental needs trust to help preserve eligibility for means-tested public benefits such as Medicaid and Supplemental Security Income. Proper structuring is critical in high-value cases involving permanent brain injury or severe disability, where projected lifetime care costs can reach many millions of dollars.
A carefully negotiated and properly structured settlement can provide financial stability and long-term security, but it must be evaluated in light of the specific medical, legal, and economic realities of each child’s case.
👉Also Read: Filing a Broken Bone Birth Injury Claim in New York: What You Need to Know
What Happens If Your Birth Injury Case Goes to Trial in New York?
Although most birth injury cases in New York resolve through settlement, some proceed to trial when the defense disputes liability or declines to offer compensation that reflects the projected lifetime needs of the child. A trial is a formal, public proceeding conducted in the New York Supreme Court, which is the state’s trial-level court of general jurisdiction.
Birth injury trials are evidence-driven, expert-intensive, and procedurally structured.
The Trial Process in New York Medical Malpractice Cases
While timelines vary by county and case complexity, a typical birth injury lawsuit follows this sequence:
| Stage | Description | General Timeframe |
|---|---|---|
| Filing | Summons and complaint filed in the appropriate county Supreme Court | Case commencement |
| Service and Answer | Defendants are served and must answer or move against the complaint | Typically 20 to 30 days after service |
| Discovery | Exchange of medical records, written demands, depositions of parties and witnesses, expert disclosure | Often 1 to 3 years in complex cases |
| Pre-trial motions | Summary judgment motions and evidentiary motions | Several months before trial |
| Jury selection | Voir dire to select 6 jurors and alternates in civil cases | Several days |
| Trial | Opening statements, witness testimony, expert examinations, cross-examination, and closing arguments | Frequently, 2 to 6 weeks in birth injury cases |
| Verdict | Jury deliberates on liability and damages | Days to a week |
| Post-trial motions and appeal | Motions to set aside or modify the verdict; possible appellate review | 1 to several years if appealed |
Key Clarifications
- New York civil juries consist of six jurors, and five of six may render a verdict in civil cases.
- Discovery in birth injury litigation is typically extensive due to expert testimony requirements and complex causation issues.
- Appeals are not automatic. A party must file a notice of appeal and pursue appellate review.
What to Expect Inside a New York Birth Injury Trial
At trial, both sides present competing medical and economic evidence.
Your legal team may introduce:
- Labor and delivery records
- Fetal monitoring strips
- Neonatal imaging studies
- Testimony from obstetricians, neonatologists, neurologists, neuroradiologists, and life care planning experts
- Economic projections of lifetime care costs
The defense presents its own medical experts to argue either that the providers met accepted standards of care or that the child’s injury was unavoidable.
Because birth injury cases often hinge on complex medical interpretation, jurors must evaluate:
- Whether a departure from accepted medical practice occurred
- Whether that departure was a substantial factor in causing injury
- The appropriate measure of damages if liability is found
The credibility of expert witnesses frequently plays a decisive role.
What Are the Potential Advantages of Going to Trial?
Greater Compensation Potential
New York juries have returned substantial verdicts in catastrophic neurological injury cases, including eight-figure awards in select matters involving severe lifelong impairment. A trial preserves the possibility of a higher recovery than a negotiated settlement.
Public Accountability
A verdict is part of the public record. Unlike settlement agreements, it represents a formal judicial determination on liability and damages.
Full Presentation of Evidence
Trial allows a complete presentation of the medical facts and the child’s projected lifetime needs before an independent jury.
👉Also Read: Can You File a Birth Injury Lawsuit for Umbilical Cord Entrapment in New York?
What Challenges Can Arise During a Birth Injury Trial?
Trial also carries a significant risk.
Extended Timelines
In high-volume counties, complex malpractice cases may take several years to reach trial, particularly where motion practice and expert discovery are contested.
Emotional Strain
Parents are typically required to testify regarding pregnancy, labor, delivery, and their child’s current condition. Cross-examination by defense counsel can be rigorous.
Risk of Defense Verdict
Even in cases where negligence appears strong, juries may accept defense expert testimony and return a verdict in favor of the defendants, resulting in no recovery.
Judicial Review of Damages
Under CPLR 5501(c), a court may reduce a jury award if it finds that the amount materially deviates from what would be reasonable compensation. Post trial motions and appeals can significantly affect the final recovery.
A trial offers the possibility of a substantial public verdict but involves uncertainty, delay, and emotional demands. The decision to proceed must be grounded in a careful evaluation of liability strength, expert support, projected damages, and the family’s tolerance for litigation risk.
Key Factors That Influence Whether to Settle or Go to Trial
No medical malpractice attorney can guarantee that a settlement or trial is inherently “better.” The decision depends on the unique facts of your case and should be made collaboratively with experienced counsel. The following factors are critical in weighing your options.
Strength of Medical Evidence
The clarity and quality of medical evidence strongly influence your potential outcomes:
- Documentation Quality: Are medical records detailed and consistent? Do they show providers ignored nonreassuring fetal heart rate tracings, failed to respond to signs of fetal distress, or delayed critical interventions?
- Expert Credibility: Board-certified obstetricians, neonatologists, and pediatric neurologists who can clearly explain deviations from accepted standards strengthen your case.
- Timing Disputes: If the defense can argue that the injury occurred before labor or delivery, proving causation becomes more challenging.
Strong, well-documented evidence increases leverage for either a favorable settlement or a trial verdict.
Extent of Damages
The severity and projected needs of your child play a central role in the decision:
- Severity and Permanence: Conditions requiring wheelchairs, lifelong mobility support, inability to speak, seizure management, or 24/7 care are considered catastrophic.
- Lifetime Care Projections: Detailed life care plans prepared by rehabilitation specialists quantify ongoing medical, therapeutic, and supportive needs. Costs for severe cerebral palsy or hypoxic-ischemic encephalopathy can exceed millions of dollars.
- Parental Impact: Lost income when a parent must leave work or reduce hours to provide care adds to the financial and emotional burden.
Cases involving catastrophic injuries may justify the risk of trial, while less severe injuries often favor settlement to secure certainty.
Insurance Policy Limits and Defendant Resources
Available insurance coverage and hospital resources shape realistic recovery expectations:
- Private practice obstetricians generally carry policies in the range of $1 million to $3 million per occurrence.
- Larger hospital systems may be self-insured or have significantly higher limits, but policies rarely match the projected lifetime costs of severe birth injuries.
- Exceeding Policy Limits: If the documented lifetime needs substantially exceed coverage, trial may be necessary to access additional resources or multiple responsible parties.
Understanding the scope of available coverage helps families set realistic expectations.
Family Emotional Readiness
Litigation is demanding, both emotionally and psychologically:
- Can your family endure years of depositions, medical examinations, and courtroom proceedings?
- Are you prepared for public testimony, scrutiny, and potential media attention in high-profile cases?
- How much do you value closure now versus the possibility of a higher recovery after prolonged litigation?
Emotional capacity is a key factor in determining the right path.
Risk Tolerance and Financial Stability
Your family’s ability to withstand financial and practical pressures can affect the decision:
- Can you manage ongoing care and therapy costs while litigation continues?
- How comfortable are you with trial uncertainty versus receiving a guaranteed settlement?
- Are interim public benefits, such as Medicaid, SSI, or Early Intervention services, available to support your child during litigation?
For example:
- A family with strong evidence of negligence, catastrophic injuries, and stable coverage through Medicaid may sensibly pursue trial to maximize recovery.
- A family with contested evidence, moderate injuries, and urgent financial needs may appropriately accept a fair settlement to ensure immediate access to necessary care and support.
How Financial Planning Shapes New York Birth Injury Cases
In New York, birth injury settlements and verdicts are designed to fund a child’s lifetime care, often spanning 70 years or more. Financial planning is as critical as legal strategy.
Calculating Lifetime Care Costs
Comprehensive life care plans quantify future needs and form the basis of damage calculations. Typical cost categories include:
| Care Category | Examples | Typical Annual Costs |
|---|---|---|
| Therapies | Physical, occupational, speech | $50,000 – $150,000+ |
| Personal care aides | Daily assistance, nursing | $100,000 – $300,000+ |
| Medical equipment | Wheelchairs, lifts, communication devices | $20,000 – $75,000 |
| Home modifications | Accessible bathrooms, ramps, lifts | One-time + maintenance |
| Medical treatment | Surgeries, medications, specialist care | Variable |
Medical economists translate these projected costs into present value sums, establishing how much money today will cover decades of future care.
Present Value vs. Structured Payouts
Families must decide how to receive settlement funds:
Lump-sum payments
- Immediate access for housing, home modifications, or urgent expenses
- Greater flexibility in investments
- Risk of mismanagement or outliving the funds
Structured settlements/annuities
- Regular payments over decades, often indexed for inflation
- Provides long-term financial security and protection against poor investment decisions
- Can be coordinated with a special needs trust for supplemental care
Example: A $10 million settlement may allocate an initial lump sum for housing and transportation, an annuity providing $200,000 annually for life, and funds directed to a special needs trust.
Preserving Medicaid and SSI Eligibility
Large settlements can disqualify a child from government benefits if not properly structured:
- Special Needs Trusts (SNTs): Court-approved trusts hold funds while preserving eligibility for Medicaid, SSI, and OPWDD services.
- Infant Compromise Orders: New York courts supervise settlement distributions for minors and often require structured arrangements.
- Benefit Coordination: Planning ensures settlement funds cover expenses not paid by public programs while maintaining eligibility.
Contingency Fees in New York
New York law (Judiciary Law § 474-a) sets a sliding-scale contingency fee structure for medical malpractice cases. Attorneys take a lower percentage on higher recoveries, so families must consider net proceeds when evaluating settlement versus trial outcomes to ensure adequate funding for their child’s lifetime care.
What Is the Role of an Experienced New York Birth Injury Attorney?
New York birth injury litigation is one of the most complex areas of medical malpractice, requiring deep medical knowledge, strategic planning, and trial-ready skills. Choosing the right New York medical malpractice lawyer can significantly influence your options and potential outcomes.
Why Trial Experience Matters, Even for Settlements
Hospitals and insurers in New York track which law firms have a record of taking birth injury cases to verdict. Attorneys with proven courtroom credibility often obtain better settlement offers because the defense recognizes their ability to succeed at trial.
The most effective medical malpractice attorneys in New York prepare every case as if it will go to trial, negotiating settlements from a position of strength rather than convenience.
Access to Qualified Medical Experts
Successful birth injury claims require testimony from highly qualified medical experts, including:
- OB-GYNs and maternal-fetal medicine specialists
- Neonatologists and pediatric neurologists
- Neuroradiologists for interpreting brain imaging
- Placental pathologists
- Life care planners and vocational economists
Early expert review helps determine whether a claim is viable before filing a Certificate of Merit, as required under New York law. Continued expert involvement strengthens both settlement negotiations and trial presentation.
Strategic Approach to Settlement Versus Trial
Skilled New York birth injury lawyers develop your case systematically:
- Case Evaluation
Reviewing prenatal records, fetal monitoring strips, NICU and delivery notes, and developmental assessments to identify negligent care. - Evidence Development
Retaining leading experts, conducting thorough depositions, creating detailed timelines of fetal monitoring, and preparing demonstrative exhibits. - Client-Centered Decision-Making
Presenting realistic settlement ranges and trial risk scenarios so families can make informed choices about whether to accept an offer or proceed to trial.
We believe families deserve transparent communication, clear updates, and guidance throughout what can be a multi-year process. A consultation with an experienced medical malpractice lawyer allows you to understand your options and make decisions with confidence.
👉Also Read: How a New York Birth Injury Lawyer Handles Fetal Distress Cases
Get Trusted Legal Guidance for New York Birth Injury Cases
If your newborn has suffered a birth injury due to suspected medical negligence, time and careful planning are critical. Choosing the right path, settlement, or trial requires expert guidance, thorough evaluation of medical evidence, and a clear understanding of your child’s lifelong care needs.
At The Pagan Law Firm, we represent families across New York, Westchester County, New Jersey, the Bronx, Brooklyn, and Queens who are navigating the complex legal landscape of birth injury claims. Our team works closely with top medical experts to evaluate each case, quantify lifetime care needs, and develop a strategic plan tailored to your family’s circumstances. Whether negotiating a settlement or preparing for trial, we advocate tirelessly to secure the resources your child deserves.
Every child deserves the best possible care, and every family deserves informed, compassionate legal guidance. Contact The Pagan Law Firm today for a free consultation to discuss your case, understand your options, and take the first step toward securing your child’s future.
Frequently Asked Questions
How Can New York Medical Malpractice Lawyers Help With Birth Injury Cases?
Birth injuries often involve complex medical conditions such as cerebral palsy, hypoxic-ischemic encephalopathy (HIE), or brachial plexus injuries. Experienced New York Medical Malpractice Lawyers:
- Analyze prenatal, labor, and delivery records
- Retain top-tier medical experts to establish negligence and causation
- Develop life care plans projecting your child’s lifetime needs
- Negotiate settlements or represent families in trial
How Long Does a New York Birth Injury Lawsuit Usually Take to Settle Versus Going to Trial?
The timeline for a birth injury lawsuit in New York depends on case complexity, the strength of evidence, and court schedules:
- Pre-suit settlements: 6–12 months for clear-liability, catastrophic cases where hospitals want to avoid publicity
- Post-filing settlements: 18–36 months after filing, depending on the pace of discovery and court calendar
- Full trial: Typically 3–4 years from filing. Appeals on large verdicts can extend resolution by an additional 1–2 years
Families must consider both the potential financial recovery and the emotional and practical demands of prolonged litigation when deciding whether to pursue settlement or trial in a birth injury lawsuit.
Will My Child or Family Members Have to Testify in Court if We Choose Trial?
It is extremely rare for infants or young children with conditions like cerebral palsy or HIE to testify. Your child’s condition is usually shown through:
- Medical records
- Expert testimony
- “Day-in-the-life” videos illustrating daily challenges
Parents, however, should expect to testify about pregnancy, labor, delivery, and the child’s current needs. Experienced medical malpractice attorneys prepare parents carefully and can request courtroom accommodations to reduce emotional stress.
How Do I Choose the Best Medical Malpractice Lawyers in New York?
Choose lawyers with proven experience in birth injury and complex malpractice cases, access to top medical experts, a strong record of settlements and trials, and clear, client-focused communication. The Pagan Law Firm is dedicated to helping families across New York navigate the complex and emotional process of birth injury lawsuits. With extensive experience in medical malpractice law, the firm works closely with top medical experts to evaluate cases, quantify lifetime care needs, and develop strategic plans tailored to each family’s circumstances.