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Statute of Limitations in Birth Injury Cases

Syracuse Lawyers Helping Families Harmed by OB-GYN Negligence

Pregnancy through childbirth is a risky time for the mother and child. Both can suffer adverse health consequences when an obstetrician-gynecologist (OB-GYN) acts negligently. When a doctor improperly uses instruments, fails to identify a mother’s medical condition such as preeclampsia or gestational diabetes, fails to administer a proper treatment for medical conditions, or fails to monitor for fetal distress, the result may be life-altering. When families pursue a birth injury lawsuit in response to medical error, this must be filed within a certain time frame. When the statute of limitations in birth injury cases expires, plaintiffs lose their ability to recover damages. To protect your right to compensation for a birth injury, contact the Syracuse birth injury attorneys of DeFrancisco & Falgiatano as soon as possible.

Statute of Limitations in Birth Injury Cases

The statute of limitations for a birth injury lawsuit is calculated differently from an adult claim for medical malpractice. An adult ordinarily has two years and six months to sue for damages arising out of medical malpractice. New York law extends the time for a medical malpractice lawsuit to be brought for a minor child.

Under New York Civil Practice Law & Rules (CPLR) section 208, if someone entitled to start a lawsuit is under disability because of infancy when the cause of action accrued and the usual time to bring suit is three or more years and expires at most 3 years after the disability ceases, or that person dies, the time within which the lawsuit needs to be filed is extended to three years after the end of disability or the person under disability dies, whichever happens first. However, CPLR 208 has an exception for birth injury cases; the statute of limitations cannot be tolled for more than 10 years. Accordingly, if there is a birth injury during labor or delivery, the birth injury lawsuit needs to be filed before the child is ten.

If a child injured at birth, the parents should sue on behalf of their child, since the statute of limitations in birth injury cases runs out before the child turns 18. It’s important for parents to take action on their child’s behalf to recover damages for birth injuries because these injuries can have substantial economic and emotional consequences. Assuming a birth injury is immediately recognized, the statute of limitations for parents begins to run on the date of the child’s birth, not on the date of the malpractice.

However, birth injuries may not be immediately apparent upon the birth of a child. Some may only be discovered after a few years. Accordingly, a parent may have up to 10 years to bring the birth injury from the time the birth injury is discovered, so long as it is within the 10-year window. For example, the statute of limitations may begin to run once a child is diagnosed with cerebral palsy arising out of birth injuries, after the child misses several developmental milestones. Do not hesitate to consult with a lawyer in this situation.


Often health care providers defend themselves by arguing that a birth injury lawsuit was not timely pursued or that a birth injury should have been discovered earlier than it was. Because the plaintiffs did not file within the statute of limitations period as calculated from the date on which the birth injury should have been discovered, the case should be barred. You can be barred from recovering damages if the court determines that you did not bring the lawsuit in the proper timeframe. Consult with an attorney experienced in handling birth injury cases as soon as you realize your child may have been harmed by medical malpractice.

Wrongful Death Statute of Limitations

There are situations in which a serious birth injury results in a baby or child’s wrongful death. In New York, a birth injury lawsuit that leads to wrongful death needs to be commenced within 2 ½ years of the act, omission or failure believed to have caused the death. If there was continuous treatment for the same injury that gave rise to the failure, omission or act, the last treatment will be the date from which the statute of limitations runs.

Consult with an Experienced Lawyer in Syracuse

The birth of a child can be a happy occasion. However, it may present substantial financial hardship and emotional stress if the baby is born with preventable birth injuries. At DeFrancisco & Falgiatano, we provide aggressive, but compassionate representation to injured babies and their families in Rochester, Syracuse, and other cities in Upstate New York, including in Oneida, Cooperstown, Auburn, Lyons, Canandaigua, Oswego, Binghamton, Wampsville, Watertown, Ithaca, Elmira, Herkimer, Utica, and Lowville. Contact DeFrancisco & Falgiatano at 833-200-2000 or by completing our online form.

Client Reviews
"We were very impressed with how Jeff DeFrancisco represented us at trial and we were extremely happy when the jury found in our favor." D.M., Auburn, NY
"I suffered a serious injury as a result of medical malpractice. My husband and I retained Jeff DeFrancisco to assist us in this case. We were extremely happy with his representation and highly recommend him." Kelley R., Syracuse, NY
Since the insurance company was unwilling to settle the matter my case ultimately went to trial. At trial Jeff DeFrancisco did an absolutely amazing job by obtaining a very favorable result for me." T.H., Oneida, NY
"I highly recommend DeFrancisco & Falgiatano - Charlie represented me for a medical malpractice case. He is the best of the best. He is friendly and I am very happy with the representation he provided." Roger N., Oneida, NY