Birth Injury Answers

What a birth injury case looks like, start to finish

Two parents reading through a stack of printed documents at a table.

The short answer

A birth injury case runs in stages, and most of the early work happens without you. Records are gathered, experts review them, and only then does anyone know whether there is a case.

Expect years rather than months. Most cases settle rather than going to trial. This page walks through each stage so you know what is coming.

The numbers, up front

It starts with records
Nothing can be assessed until the complete records are obtained, and you have a federal right to them 1
Experts decide whether there is a case
Whether care met the standard is proven with expert testimony from qualified physicians, not from a guideline alone 2
Two things must be shown
That the care fell below the standard, and that it caused the injury. Both are needed, and causation is often the harder one 2
Causation is worked out from a pattern
Professional guidance states that cause and timing of newborn brain injury are established from a pattern of findings taken together, not from any single test 2
A life care plan sets the value
A written estimate of everything a child will need over their lifetime, and what it will cost, prepared specifically for that child 3
A child's settlement needs court approval
A settlement on behalf of a minor is approved by a court, which also reviews fees and decides how the money is held 4

Stage 1: records

Nothing happens until the complete records are in hand.

Your records and your child's, from every facility. The monitoring strips, the anesthesia record, the placental pathology report, the resuscitation record, the imaging. See how to get your medical records. 1

A firm will usually obtain these for you once you sign an authorization. It still takes weeks to months.

What is asked of you: signing authorizations, and telling the firm every facility involved, including prenatal care and any transfer.

Rough timeline: one to three months.

Stage 2: expert review

The records go to physicians who review them and give an opinion. In a birth injury case that usually means several: an obstetrician, a neonatologist, a pediatric neurologist, a radiologist, and sometimes a placental pathologist.

They are answering two separate questions.

Did the care fall below the standard? What would a reasonably careful provider have done in the same situation. This is proven with expert testimony rather than by pointing at a guideline. 2

Did that cause the injury? This is usually the harder question. Professional guidance is explicit that cause and timing are worked out from a pattern of findings taken together, not from one test. 2 A case can fail here even where the care was clearly poor, because the injury had another cause or happened at another time.

Many cases end at this stage. A firm that declines after expert review is telling you the experts did not support it. Ask what they said.

What is asked of you: usually nothing. This is the waiting stage, and it is hard.

Rough timeline: three to nine months.

What is in the rest of this guide

  • Stage 3: the life care plan
  • Stage 4: filing
  • Stage 5: discovery
  • Stage 6: mediation
  • Stage 7: settlement or trial
  • The realistic timeline

Questions parents ask

How long will this take?

Two to four years is common, and longer is not unusual. Records take one to three months, expert review three to nine, and discovery can run one to two years or more. Ask for an estimate at the start, and ask how often you will hear from them.

Will we have to go to court?

Most cases resolve without a trial, usually at mediation. If a case does go to trial, it typically runs one to three weeks and you will likely testify. Your lawyer should be able to say early on how often they actually try cases, which matters even for a case that settles.

Why can a case fail even when the care was clearly poor?

Because two separate things have to be shown: that the care fell below the standard, and that it caused the injury. Causation is often the harder one, and professional guidance is explicit that it is worked out from a pattern of findings taken together rather than from one test. 2 An injury can have another cause or another timing.

What is a life care plan?

A detailed written estimate of everything your child will need over their lifetime and what it will cost, prepared specifically for them. It is what sets the value of a case, and it is a different kind of thing from a population average such as the CDC lifetime cost estimate. 3

Who decides whether to settle?

You do. Your lawyer advises, and the decision is yours. Because the money belongs to a child, a court then reviews and approves the settlement, including the fees and how the funds will be held. 4

Words on this page, in plain English

Medicaid lien
A state's claim to be paid back out of a settlement for medical care it already covered.
special needs trust
A trust that holds money for a person with a disability without making them lose Medicaid or SSI.
structured settlement
A settlement paid out over years instead of all at once, usually through an annuity.

See the full glossary and records decoder

Where these facts come from

  1. U.S. Department of Health and Human Services, Office for Civil Rights. Individuals Right under HIPAA to Access their Health Information, 45 CFR 164.524. 2024. www.hhs.gov/hipaa/for-professionals/privacy/guidance/access/. Link checked September 3, 2026.
  2. American College of Obstetricians and Gynecologists and American Academy of Pediatrics. Neonatal Encephalopathy and Neurologic Outcome, Second Edition. 2014. www.acog.org/clinical/clinical-guidance/task-force-report/ar. Link checked September 3, 2026.
  3. CDC, MMWR. Economic Costs Associated with Mental Retardation, Cerebral Palsy, Hearing Loss, and Vision Impairment, United States, 2003. 2004. www.cdc.gov/mmwr/preview/mmwrhtml/mm5303a4.htm. Link checked September 3, 2026.
  4. Social Security Administration. Program Operations Manual System, SI 01120.203 Special Needs Trusts. 2025. secure.ssa.gov/poms.nsf/lnx/0501120203. Link checked September 3, 2026.
  5. Centers for Medicare and Medicaid Services. Medicare Secondary Payer and Liability Settlements. 2025. www.cms.gov/medicare/coordination-benefits-recovery. Link checked September 3, 2026.