Each year thousands of babies suffer serious injuries during childbirth which can result in permanent disabilities such as cerebral palsy. In some cases, birth injuries are unavoidable, even with the best possible medical care. With modern medical care, however, the clear majority of birth injuries can actually be prevented if the OB/GYN and the delivery team provide the proper standard of care.
Unfortunately, doctors and hospital staff do not always provide the highest level of medical care during labor and delivery. If your baby suffers a birth injury as a result of negligent medical, you have the right to sue the doctor and/or hospital for medical malpractice.
Deciding to pursue a malpractice lawsuit for a birth injury can be a very difficult decision for many parents. Parent’s who wait too long to make this decision might find that it is too late to file a lawsuit. This is because birth injury malpractice claims are subject to a statute of limitations which imposes a strict time deadline on filing suit.
Each state has its own statute of limitations that will be applicable and these tend to vary slightly both in the number of years and when they begin to run. In this post, we will look at the various limitations statutes for birth injury claims in all 50 states.
In any birth injury malpractice case, the parents and the injured child each have their own separate legal claims. Both the parent and child claims are based on the same allegations of malpractice, but they involve different categories of damages. The parents of the injured child can sue for malpractice and get damages for the costs of raising their child (e.g., future medical expenses until the child turns 18). The child can sue and get damages for things like loss of future earnings and future medical expenses from 18 onward.
It is important to note the limitations periods listed below are only applicable to the claims of the parents. The separate claims of the injured child are subject to a much longer statute of limitations that does not begin to run until the child reaches the age of majority (18 in most states). So the parents’ claims may expire 2 years after birth, but the child may still be able to sue 18 years later.
| STATE | SOL – BIRTH INJURY | SOL – WRONGFUL DEATH |
|---|---|---|
| Alabama | 2 years | 2 years |
| Alaska | 2 years | 2 years |
| Arizona | 2 years | 2 years |
| California | 3 years | 3 years |
| Colorado | 2 years | 2 years |
| Connecticut | 2 years | 2 years |
| Delaware | 2 years | 2 years |
| Florida | 2 years | 2 years |
| Georgia | 2 years | 2 years |
| Hawaii | 2 years | 2 years |
| Idaho | 2 years | 2 years |
| Illinois | 8 years | 2 years |
| Indiana | 2 years | 2 years |
| Iowa | 2 years | 2 years |
| Kansas | 2 years | 2 years |
| Kentucky | 1 year | 1 year |
| Louisiana | 1 year | 1 year |
| Maine | 3 years | 2 years |
| Maryland | 3 years from birth | 3 years from death |
| Massachusetts | 3 years from birth | 3 years from death |
| Michigan | 2 years from birth | 3 years from death |
| Minnesota | 4 years from birth | 3 years from death |
| Mississippi | 2 years from birth | 3 years from death |
| Missouri | 2 years from birth | 3 years from death |
| Montana | 3 years from birth | 3 years from death |
| Nebraska | 2 years from birth | 2 years from death |
| Nevada | 3 years from birth – 10 years if child has “brain damage” | 2 years from death |
| New Hampshire | 3 years from birth | 3 years from death |
| New Jersey | 2 years from birth | 2 years from death |
| New Mexico | 12 years from birth | 3 years from death |
| New York | 2.5 years from birth | 2 years from death |
| North Carolina | 3 years from birth | 2 years from death |
| Ohio | 1 year from birth (can be extended with notice) | 2 years from death |
| Oklahoma | 7 years from birth | 2 years from death |
| Oregon | 2 years from birth | 3 years from death |
| Pennsylvania | 2 years from birth | 2 years from death |
| Rhode Island | 3 years from birth | 3 years from death |
| South Carolina | 3 years from birth | 3 years from death |
| South Dakota | 2 years from birth | 2 years from death |
| Tennessee | 1 year from birth | 1 year from death |
| Utah | 2 years from birth | 2 years from death |
| Vermont | 3-5 years from birth | 2 years from death |
| Virginia | 10 years from birth | 2 years from death |
| Washington | 3 years | 3 years from death |
| Washington, DC | 3 years from birth | 2 years from death |
| Wisconsin | 3 years from birth | 3 years from death |
| Wyoming | 2 years from birth | 2 years from death |
This section will answer some of the most frequently asked questions about how long you have to file a birth injury lawsuit and the applicable statute of limitations.
Parents must file a birth injury malpractice lawsuit before the statue of limitations in their state expires. Most states have a 2 or 3 year statute of limitations for filing malpractice claims involving birth injuries. In most cases the limitation period begins to run from the date of birth.
In almost all circumstances 10 years after the fact would be too late to file a medical malpractice lawsuit against a doctor. Limitations statutes for malpractice are typically between 2 to 3 years. The only exceptions would be if the malpractice was not discovered until years later (e.g., surgeon leaves something inside you which is found years later).
The plaintiffs in a medical malpractice case involving a birth injury would usually be the injured child and his or her parents. The parents and the child each have their own separate malpractice claims which are entitled to slightly different types of monetary damages.