How Long Do You Have to Sue For a Birth Injury in Illinois?

Did you know that around seven in 1,000 babies experience birth injuries in the United States each year? While some injuries do not seem life-threatening, such as minor bruising or tissue swelling, there may be long-term consequences down the road. These can be permanently debilitating, taking a financial and emotional toll on both you and your child. 

So, if your newborn has experienced a birth injury, you might be wondering if you should file a lawsuit for their injuries? If so, how long do you have to file the suit? 

I’ll answer these questions and more as we explore the Illinois statute of limitations, special considerations, and what‘s required to file a legal claim.

What is a Birth Injury?

First and foremost, it’s important to define what constitutes a birth injury. One thing to note is that birth injuries are completely different from birth defects. A birth defect is a medical issue/abnormality that develops while the fetus is in utero, whereas a birth injury occurs from an outside source onto the child during the birthing process.

Common types of birth injuries

Some of the most common types of birth injuries are:

• Bruising: It’s fairly common to see some light bruising on your baby’s head and face simply from passing through the birth canal. Occasionally, medical equipment such as forceps can leave temporary marks, which are inconsequential; but severe bruising might indicate more damage. For example, Cephalohematoma: When blood accumulates under the scalp, outside the blood vessels. This can happen when forceps or a vacuum are used to assist in the birthing process. It can lead to future complications such as anemia, jaundice, infection, skull fractures, and more.

• Brachial palsy: This occurs when nerves are stretched and subsequently damaged in the upper arm, which can lead to paralysis or severe weakness in the arm, shoulder, or hand. If the nerve is torn completely, it can cause permanent damage.

• Hypoxic-Ischemic Encephalopathy: If the brain doesn’t receive enough oxygen, it can lead to extraneous long-term disabilities including developmental delays, cerebral palsy, hearing and vision problems, seizures, and heart or lung problems.

• Facial paralysis/Bell’s palsy: Again, caused by forceps, partial facial paralysis may clear up on its own in a few weeks unless a nerve was torn, in which case it will require surgery. 

How Long Do You Have to File a Lawsuit After a Birth Injury?

Generally, the statute of limitations for personal injury or medical malpractice suits in Illinois is two years. However, statutes of limitations (SOL) can be complex and change on a case-by-case basis, so it’s important to consult a birth injury attorney as soon as possible. Generally, the SOL begins on the date the doctor made the mistake, unless special circumstances prevent discovery:

1. Fatal injuries: If the birth injury causes the death of your child, you may be able to file a wrongful death lawsuit. SOL varies between fatal and non-fatal injuries.
2. Fraudulent concealment: If the health care provider conceals the injury or otherwise engages in covering it up to prevent you from discovering it.
3. Delayed discovery: The Discovery Rule dictates that injuries that manifest within later child development stages are eligible for birth injury lawsuits once they are discovered. For instance, cerebral palsy can be caused by oxygen deprivation during birth but may not appear until after the two-year SOL. The Discovery Rule allows parents to file a claim upon discovery, but there are some limitations to it — be sure to consult with an attorney as soon as possible to ensure timely filing.

Don’t Wait to File a Claim

Even if you suspect negligence on behalf of your medical team, it’s important to file your claim as early as possible. Gathering medical records and expert opinions as temporally close to the birth as possible goes a long way in building a solid case. Ultimately, if you wait too long to consult with an attorney and investigate your case, you run the risk of missing the statute of limitations, thus nullifying your case regardless of how strong it is.

Consulting with a medical negligence attorney with expertise in the field will help you make sense of the situation and they’ll even gather evidence on your behalf.  

What Compensation Can You Seek in a Birth Injury Lawsuit?

Other questions that come to mind: Is a lawsuit even worth it? How much compensation can you actually recover?

In the case of negligence, it’s worth exploring a lawsuit, if only to cover expenses associated with the loss of a normal life, pain and suffering, and potential disabilities. Damages are awarded on a case-by-case basis and can vary vastly based on circumstances, so giving an estimate is nearly impossible. 

Quantifiable damages

• Medical expenses: Past, current, and future bills. This includes length of hospitalization, surgeries, medications, specialized equipment (e.g., wheelchairs), physical and behavioral therapy, future care costs (including 24-hour nursing care), and home modifications for accessibility reasons.

• Lost earnings: Obviously, an infant doesn’t have a job, but if the birth injury results in a permanent disability that hinders their ability to earn a wage, future lost wages can be recovered. 

• Long-term care: Caregivers are expensive, regardless if it’s in-home or at a specialized facility. If the child is incapable of living independently, these costs are factored into awarded damages.

• Special education: If additional educational support is required for the child throughout their developmental years, such as specialized programs or private schooling, damages can be recovered.

Non-economic damages

• Pain and suffering: This accounts for physical/emotional pain on the child and parents.

• Lost quality of life: Babies with brain injuries do not go on to lead what the law recognizes as “normal lives.” They might not be able to talk, walk, feed themselves, or interact with their parents. This element of damages is always substantial, likely in the millions of dollars.

• Disfigurement: Permanent changes in physical appearance such as burns, scars, facial injuries, and other physical deformities are factored into damages.
• Disability: Chronic pain, hearing or vision loss, spinal injuries, and more all constitute disabilities for which damages may be awarded.

Put simply, it’s worth exploring a personal injury suit. 

Brian Lewis is Here to Help

I have decades of experience combating healthcare systems when doctors and nurses violate the standard of care (i.e. are negligent). 

My experience and passion for holding people accountable have led to over $125 million in damages for clients throughout my career. 

If your child has experienced an injury during birth as a result of negligence, please give me a call today so I can recover for you the money you deserve.