What a birth injury case looks like, start to finish
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.
Stage 3: the life care plan
If the case goes forward, a life care planner assesses your child and writes a detailed estimate of what they will need across their lifetime and what it will cost.
That covers therapy, equipment, medicines, surgeries, personal care, home modification, transport, education support and case management, year by year.
An economist then converts it into present-day value.
This is the document that sets the value of the case, and it is specific to your child. It is a completely different thing from a population average like the CDC lifetime cost estimate, which is about groups and not about individuals. 3
What is asked of you: a long interview, sometimes a home visit, and a great deal of detail about daily life. Families often find this stage emotionally hard, because it involves describing your child's future in specific terms.
Rough timeline: two to four months.
Stage 4: filing
The lawsuit is filed in court, naming the defendants.
Many states require steps before this: a certificate or affidavit of merit from a qualified expert, a pre-suit notice period, or a screening panel. Those take time, which is why the practical deadline for contacting a lawyer is well before the legal one. See filing deadlines.
What is asked of you: reviewing and approving the complaint.
A note on the emotional side. Your case becomes a public court record, and the defendants are named. Some families find that harder than they expected. It is worth discussing in advance.
Rough timeline: weeks, once the pre-suit steps are done.
Stage 5: discovery
The longest stage. Both sides exchange information.
Written discovery. Questions and document requests.
Depositions. Sworn testimony out of court, recorded. The doctors, the nurses, the experts, and you.
Your deposition usually happens in year two. You will be asked about the pregnancy, the birth, and your child's daily life. Your lawyer will prepare you over several sessions. It typically takes a day. It is not an argument, and the main skill is answering only what was asked.
Independent medical examination. The defense may have your child examined by their own physician.
Expert depositions, on both sides.
What is asked of you: answering written questions, gathering documents, your deposition, and taking your child to examinations.
Rough timeline: one to two years, sometimes longer.
Stage 6: mediation
Most cases reach a negotiated resolution, and mediation is where that usually happens.
Both sides meet with a neutral mediator, often a retired judge. You are usually in separate rooms and the mediator moves between them.
It can take a full day, sometimes more than one.
You decide. Your lawyer advises. The decision to accept or refuse is yours.
What is asked of you: attending, and making a decision under pressure and while exhausted. Take someone with you.
Rough timeline: a day or two, usually somewhere in year two or three.
Stage 7: settlement or trial
If it settles
- The settlement is documented.
- A court approves it, because the money belongs to a child. The court reviews the amount, the fees, and how the money will be held. 4
- Any Medicaid lien is resolved. 5
- A special needs trust is usually set up, so the money does not cost your child their benefits. 4
- Funds may be paid as a lump sum, as a structured settlement over time, or both.
See settlements for how this part works.
If it goes to trial
A minority of cases do. A birth injury trial usually runs one to three weeks. You will likely testify. Experts on both sides testify. A jury decides.
Verdicts can be appealed, which adds a year or more.
What is asked of you: your presence for much of the trial, and your testimony.
The realistic timeline
Two to four years is common. Longer is not unusual.
The waiting is the part families are least prepared for. Long stretches happen where nothing visible occurs, and that is normal rather than a sign of neglect.
Ask at the start: how often will I hear from you, and who do I call. Then hold them to it.
What it asks of you
- Signing forms and gathering documents.
- Being interviewed, sometimes at length, about painful things.
- A deposition.
- Taking your child to examinations.
- Attending mediation, and possibly trial.
- Living alongside it for years while also raising your child.
That last one is the real cost, and it is rarely mentioned in advance. Many families describe the case as a second full-time presence in their lives. It is worth deciding early who in your life you will talk to about it, and building in the rest of your life around it.
This page is general information, not legal advice. Procedure differs by state and by case. Talk with an attorney licensed in your state.
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.
Where these facts come from
- 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.
- 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.
- 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.
- 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.
- 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.