The birth of your child was supposed to be a happy day. You knew there would be pain involved; passing an entire human being out of your body is bound to be painful. What you did not expect was that you would feel more pain than the typical woman. You did not expect that you would continue to have pain even after most women have stopped feeling pain or that you would be in pain long after you should have healed. You did not expect to need continued medical treatment, such as painkillers, antibiotics, or surgery, to recover. Sustaining a maternity injury was not something you expected. Depending on the severity of that injury, you may be considering filing an injury lawsuit. At Erin Marshall Law, we offer compassionate but fierce representation when you have sustained a birth injury. Call (505) 218-9949 to schedule a consultation and learn more about how we may be able to assist you in receiving the compensation you deserve under the law.
Birth Injury vs. Maternity Injury
When individuals first realize they have suffered a maternity injury, they start researching. Before long, their heads are swirling with unfamiliar terms, phrases, examples, and other information. Two terms they find are birth injury and maternity injury. When they read about them, many individuals wonder what the difference is. A birth injury is any injury that occurs during the birthing process, whether it happens to the mother or the baby.
A maternity injury is a subset of birth injuries that applies specifically to injuries the mother sustains during the birth process. Maternity injuries are physical harm to the mother during childbirth. The most common maternity injuries occur in the perineal area and include perineal tears, episiotomies, pelvic floor damage, and nerve damage in the vaginal area.
Steps to File a Maternity Injury
Filing an injury lawsuit for a maternity injury is essentially the same as filing a personal injury lawsuit for other injuries. However, because maternity injuries are also considered medical malpractice, there are some slight differences.
Check the Statute of Limitations
NMSA 1978 §41-5-13(2011) provides that claims for medical malpractice, which would include a birth injury or maternity injury, must be filed within three years after the date the act of malpractice occurred. This is a critical aspect of any injury lawsuit, as claims can be barred after the statute of limitations has expired. If the statute of limitations has expired, the healthcare provider or other party responsible for the maternity injury can file a motion to dismiss the claim, and the court will likely grant that motion.
Many claims spend at least some time attempting to negotiate a settlement before filing a lawsuit. Knowing the statute of limitations is critical to ensuring that if negotiations are not going well, an individual can file an injury lawsuit before it is too late. Additionally, it can be crucial in cases where an individual did not realize that they had a maternity injury until some time after their child’s birth. If an individual does not realize they sustained a birth injury until after the statute of limitations has expired, they may not be able to file a lawsuit. They may still be able to file a claim if their case falls under an exception, such as fraud or concealment, but this will likely require consulting with an attorney to discuss the case details.
Check If Claim Is Covered By Your Own Insurance
Sometimes, the healthcare provider may not have sufficient insurance and very few assets. While an individual could still file a claim and get a judgment against the provider, they would likely not see any financial compensation unless the provider sold the few assets they have or acquired more. Alternatively, the maternity injury sustained may be one that can be covered by the individual’s own insurance. For example, if the individual experienced perineal tearing that was repaired with stitches and did not result in long-term complications or permanent damage, their insurance may cover the expenses associated.
This is another critical step because, in some cases, if the individual’s insurance will cover the expenses, this may be a better option. There is a significant cost associated with filing a maternity injury lawsuit, which may not be worth it for the individual if the healthcare provider does not have sufficient insurance or assets to pay any compensation. If the individual’s insurance covers the expense, this may be a faster and less expensive solution.
Gather Medical Records and Other Evidence
The foundation of any maternity injury claim will be documentation. Before attempting to file an injury claim, individuals should gather all relevant medical records, including their prenatal care records, labor and delivery notes, newborn examination reports, and records from follow-up care. A detailed journal of the individual’s symptoms, treatments, and how the injury affects the individual and their family’s daily life can also provide valuable context to their claim.
Consult With a Specialized Birth Injury Attorney
New Mexico does not require individuals to hire an attorney to represent them in court for any lawsuit. However, most individuals who sustain a maternity injury are not familiar with New Mexico’s medical malpractice laws nor with the legal process of filing an injury lawsuit. A specialized birth injury attorney is familiar with medical malpractice laws, the legal process itself, the kind of evidence an individual will need, and other details that can help smooth out the process.
Additionally, a birth injury attorney may be able to review the individual’s case and evaluate the strength of their claim, guide them through the claim process, explain their legal rights and options, and help them connect with medical experts. Erin Marshall law offers a free consultation that allows the individual to learn more without first making a financial commitment.
Investigate the Circumstances Surrounding the Maternity Injury
After consulting with an attorney, if the individual chooses to hire them, the attorney will then investigate the circumstances surrounding the maternity injury. This is a crucial part of building a strong foundation for the claim. Some of the actions the attorney may take include interviewing the medical staff who were present during the birth, analyzing similar cases and outcomes, reviewing hospital or facility protocols or procedures, and reviewing the medical records with expert witnesses. They may also review details with the individual to learn more about their experience and how it has impacted their life.
Explore Settlement Opportunities vs. Going to Trial
Before filing an injury lawsuit, the individual may want to explore settlement opportunities. This does not necessarily mean the individual or their attorney will engage in settlement negotiations. Instead, this may be an opportunity for the individual to discuss what they would like to receive (how much compensation), as well as gain a better understanding of their case. For example, their attorney may explain the strength of their case and offer guidance regarding whether accepting a settlement may be more appropriate for their case or if they should pursue the case in court.
Apply for Review by the State Medical Review Commission
The New Mexico Medical Malpractice Act requires most cases to be reviewed by the state Medical Review Commission before filing an injury lawsuit. This is a panel that determines the answers to two questions:
- Is there substantial evidence that the acts complained of occurred and that they constitute medical malpractice?
- Is there a reasonable medical probability that those acts injured the individual?
The answers to these questions are not binding. If the answers are no, this does not mean that the individual cannot move forward with their maternity injury lawsuit. Instead, this review is meant to act as a screening from which the individual and their attorney can glean more information regarding the potential success or failure of the case.
File Complaint and Ensure Summons Is Served
Once the Medical Review Commission has made its decision, the individual can move forward with filing their lawsuit. They or their attorney, if they have one, will file the complaint with the court and ensure that the summons is served on the defendant. The summons informs the defendant that they are being sued, why they are being sued, and by whom. The summons also requires the defendant to respond within 30 days of being served.
Wait for Defendant’s Reply
Once the lawsuit is filed and the summons served, the individual can only wait for the defendant’s reply. The healthcare provider has 30 days to file their response with the court and provide a copy to the individual. Until such response is received, there is nothing more the individual can do. The defendant can respond in a few different ways. One option is to neither accept nor deny the allegations. Another is to answer the lawsuit with an acknowledgment or rejection of each allegation against them. A third is to file a motion to dismiss the lawsuit.
How the defendant responds will inform the next move the individual makes. For example, if the defendant files a motion to dismiss and it is granted, the claim will be dismissed. The individual may be able to appeal the dismissal, but that will be a different process than moving forward with the lawsuit or trying to settle it.
Negotiate Settlement or Prepare for Trial
If the defendant neither accepts nor denies the allegations, or they answer the complaint, the next step will be to try to settle the lawsuit. Settlement negotiations are usually a series of meetings to try to come to an agreement between the parties. These negotiations may include the injured individual, the healthcare provider or providers named in the lawsuit, and their insurance companies, plus any attorneys representing any of them.
If settlement negotiations are unsuccessful, or the individual is unwilling to settle, they will prepare for trial. This includes the discovery phase, during which both sides exchange information, and depositions, during which witnesses give sworn testimony. There will also be pretrial motions and hearings and, in some cases, attempts at mediation.
Receive and Manage Compensation
If settlement attempts are successful, or the individual wins the lawsuit, the final step is receiving and managing their compensation. If the individual has an attorney, their attorney may offer advice regarding compensation management options, such as creating a trust. An attorney may also be able to assist with ensuring any unpaid expenses, such as previous medical bills, are paid.
How Long Do Maternity Cases Take to Settle?
How long it takes to settle a maternity injury lawsuit varies. Some cases take only a few weeks, while others can take years. Several factors affect the timeline for settling the claim, including:
- Whether the individual is still undergoing medical treatment
- Whether the insurance denies the claim
- Whether the individual wants to go to court instead of settling
- Whether they are negotiating with the insurance or the healthcare provider
- Whether they are willing to mediate the case
In addition to these factors, it is also strongly recommended that the individual wait until they have reached maximum medical improvement (MMI) before settling their case. MMI means that the individual has recovered as much as they are going to and that continued medical treatment is unlikely to improve their condition. Therefore, the individual’s recovery time until they reach MMI must be included in the timeline for how long it takes to settle their case.
How Does New Mexico Calculate Pain and Suffering?
In New Mexico, two methods are used to calculate pain and suffering: per diem and multiplier. The multiplier method is the more common, but each has a purpose. The method used will depend on the details of the individual’s maternity injury lawsuit.
What Can a New Mexico Birth Injury Attorney Do for You?
While everyone understands there is a certain amount of pain and sacrifice involved in birthing a child, most also hope and expect it to be a time of excitement, happiness, and love. When that hope and expectation turns into a nightmare of excruciating pain, long-term suffering, and potentially lasting emotional trauma because of a maternity injury, you should not have to simply accept that. An attorney can assist with gathering and reviewing the evidence, finding expert witnesses, interviewing the healthcare providers involved, and building a strong case. If negotiations are unsuccessful, an attorney can also represent you in court. At Erin Marshall Law, we may be able to assist you with your injury lawsuit with compassion while fiercely fighting for the compensation you deserve under the law. Call (505) 218-9949 to schedule a consultation where we can review your case and discuss your legal rights and options.
