The law that applies to your claim
A child’s deadline is different
New York’s limitations rules are tolled for infancy, so a claim on behalf of an injured child may remain available well beyond the ordinary two-and-a-half years — subject to an outer limit and to the much shorter notice requirements where a public hospital is involved. Do not assume either that you are out of time or that you have years to spare.
What the claim usually alleges
A failure to recognize and respond to fetal distress: misread or unmonitored fetal heart tracings, delay in proceeding to caesarean section, improper use of forceps or vacuum, mismanaged shoulder dystocia, or failure to treat maternal infection or preeclampsia affecting the baby.
Damages are lifetime damages
Where a child sustains permanent neurological injury, the claim covers a lifetime of care, therapy, equipment, housing adaptation, lost earning capacity and pain and suffering. Life-care planners and economists build that projection.
The injuries
- Hypoxic-ischaemic encephalopathy — brain injury from oxygen deprivation, a leading route to cerebral palsy
- Brachial plexus injury and Erb’s palsy — nerve damage to the arm, commonly following shoulder dystocia
- Skull fracture and intracranial bleeding, including from instrument delivery
- Untreated severe jaundice leading to kernicterus
- Fractured clavicle or humerus during delivery
- Injury from untreated maternal infection, including group B streptococcus
The fetal monitoring strip is the central document
Continuous fetal monitoring produces a minute-by-minute record of the baby’s heart rate against contractions. Experts read those tracings for patterns showing distress — late decelerations, reduced variability, bradycardia — and for how long they persisted before anyone acted.
The critical measure is usually the decision-to-incision interval: how long between the point at which delivery was indicated and the point at which it happened. That interval is documented, and it is frequently where the case is decided.
Cerebral palsy does not always mean malpractice
This matters and we say it plainly. Cerebral palsy has many causes — genetic, infectious, prenatal — and a great many cases have nothing to do with the delivery. Timing evidence, cord blood gases, placental pathology and imaging patterns help distinguish an intrapartum injury from one that occurred earlier.
An honest review sometimes concludes the delivery was not the cause. You are better served hearing that than pursuing a claim that cannot be proved.
How long you have to act
- Three years from the date of the accident for most negligence claims (CPLR §214).
- Two years for wrongful death (EPTL §5-4.1).
- 90 days to serve a notice of claim where a city, county, school district, transit authority or other public body is involved (General Municipal Law §50-e), with suit generally within one year and 90 days.
The 90-day rule is the one that quietly ends otherwise strong cases. If a public entity may be involved, that is the first thing to check — not the last.
What it costs
Nothing up front. These cases are handled on contingency: there is no fee unless we win, and the consultation is free. You will be told the percentage and how expenses are handled, in writing, before you sign anything.
Common questions
My child is now several years old. Is it too late?
Possibly not. Infancy tolling can extend a child’s claim substantially. But if a public hospital was involved, a much shorter notice requirement may apply, so this needs checking quickly.
The delivery was an emergency. Does that excuse it?
Not by itself. The question is often whether the emergency was recognized and acted on when the monitoring first showed it, rather than how the delivery itself was handled once underway.
Can we claim for what this costs us as a family?
A lifetime care plan is a core part of these claims — therapy, equipment, adapted housing and attendant care. That projection is usually the largest element of the case.
