How Long Do You Have to Sue for a Birth Injury?

If your child suffered a birth injury because of suspected medical negligence, you may have the right to pursue compensation from the healthcare provider or facility responsible. However, there is a critical issue that parents should understand as early as possible: there is a legal deadline for filing a birth injury lawsuit.

That deadline is known as the statute of limitations.

The amount of time you have to file a birth injury lawsuit depends on where the injury occurred and the circumstances of the claim. Illinois and Wisconsin have different rules for medical malpractice claims involving children, and additional rules can apply depending on when the injury was discovered, who is bringing the claim, and the nature of the alleged negligence.

In Illinois, a medical malpractice claim involving a person who was under 18 when the cause of action accrued generally must be filed within 8 years of the negligent act or omission, but in no event later than the person’s 22nd birthday.

Wisconsin has a different rule. Under Wisconsin law, a minor’s medical malpractice action generally can be brought under the applicable medical malpractice limitations period or by the child’s 10th birthday, whichever is later. The Wisconsin Supreme Court has specifically addressed birth injury cases and explained how these rules interact for children injured at birth.

Because missing a statute of limitations can prevent a claim from being pursued, parents should not wait until they are certain that medical negligence occurred before discussing the situation with an attorney.

What Is a Birth Injury Lawsuit?

A birth injury lawsuit is a civil claim brought when a baby suffers an injury during pregnancy, labor, delivery, or the immediate period following birth because of alleged medical negligence.

Not every birth injury is caused by medical malpractice.

Some birth injuries occur naturally or because of medical conditions that healthcare providers could not reasonably have prevented. A medical malpractice claim generally requires evidence that a healthcare provider failed to meet the applicable standard of care and that the failure caused the child’s injury.

Potential examples of medical negligence associated with birth injuries include:

• Failure to recognize fetal distress
• Delayed response to abnormal fetal monitoring
• Failure to order an emergency C-section when medically indicated
• Improper use of forceps or vacuum extraction
• Failure to diagnose or treat maternal complications
• Failure to recognize an infection
• Medication errors
• Failure to properly monitor the mother or baby
• Delayed treatment of oxygen deprivation
• Failure to recognize complications during labor
• Errors involving anesthesia
• Inadequate response to complications following delivery

A birth injury case usually requires a detailed review of medical records and expert medical evidence to determine whether the care provided fell below the applicable standard.

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

Illinois has special rules governing medical malpractice claims involving minors.

Under 735 ILCS 5/13-212, a medical malpractice action involving a person who was under 18 when the cause of action accrued generally must be brought within 8 years after the act, omission, or occurrence that caused the injury.

However, there is an absolute age limitation: the claim generally cannot be brought after the injured person’s 22nd birthday.

This is different from the general Illinois medical malpractice rule applicable to adults.

Illinois Medical Malpractice Deadline for Adults

For adults, Illinois generally provides that a medical malpractice action must be filed within 2 years after the claimant knew or reasonably should have known of the injury, subject to a 4-year statute of repose measured from the act or omission that caused the injury.

Birth injury cases involving children are subject to the specific minor provision in Section 13-212(b).

The 8-Year Rule for Children

If the child was under 18 when the cause of action accrued, Illinois law generally allows the action to be brought within 8 years of the negligent act or omission.

For example, if a medical professional’s negligent act occurred during delivery and the child was injured as a result, the statutory framework can provide substantially more time than the ordinary adult medical malpractice deadline.

However, the 8-year period is not the only consideration.

The statute expressly provides that the claim cannot be brought after the person’s 22nd birthday.

Why the 22nd Birthday Matters?

The 22nd birthday is an important outside deadline under the Illinois minor medical malpractice statute.

That means parents should not assume that a birth injury claim can be pursued indefinitely simply because the child was a minor when the injury occurred.

The exact calculation can depend on the date of the alleged negligent act or omission and other facts surrounding when the claim accrued.

Because statutes of limitation and repose can have complicated applications, an attorney should review the specific dates involved before determining whether a claim remains timely.

What If the Birth Injury Was Not Discovered Immediately in Illinois?

Birth injuries are not always immediately apparent.

Some injuries may be diagnosed shortly after delivery, while others may become apparent months or even years later as a child misses developmental milestones or begins experiencing physical, cognitive, or neurological difficulties.

Illinois law has a discovery-based rule for medical malpractice claims generally, but Section 13-212 contains a separate provision specifically addressing minors. The statute provides the 8-year period for a person who was under 18 when the cause of action accrued, subject to the 22nd-birthday limitation.

This makes it important not to assume that the date a parent first received a diagnosis automatically determines the deadline.

An attorney can examine:

• When the alleged negligent act occurred
• When the injury occurred
• When the injury was discovered
• When the child’s condition became apparent
• Whether the child was a minor when the claim accrued
• Whether any statutory exception applies

Can Parents Sue for Their Child’s Birth Injury in Illinois?

Parents may have claims arising from their child’s injury, but the applicable deadlines and nature of those claims can differ from the child’s own claim.

Illinois law specifically provides that actions for medical expenses of minors and other derivative claims arising from another person’s injury generally must be brought within the same period applicable to the injured person’s claim.

This is important because parents may incur substantial expenses following a birth injury, including:

• Hospital bills
• Specialist appointments
• Rehabilitation
• Physical therapy
• Occupational therapy
• Speech therapy
• Assistive equipment
• Medication
• Long-term medical care

Depending on the circumstances, there may also be claims for other legally recoverable losses.

Parents should therefore avoid assuming that their child’s claim and the parents’ potential claims are governed by completely separate deadlines.

How Long Do You Have to Sue for a Birth Injury in Wisconsin?

Wisconsin has a different statutory framework for medical malpractice claims involving minors.

Under Wis. Stat. § 893.55, a medical malpractice action generally must be commenced within the later of:

1. Three years from the date of injury, or
2. One year from the date the injury was discovered, or reasonably should have been discovered, subject to a five-year limit from the act or omission for claims proceeding under the discovery provision.

However, Wisconsin has a separate provision for minors.

Wis. Stat. § 893.56 provides that a person under 18 who is not under certain specified disabilities must bring an action involving treatment or an omission by a healthcare provider within the applicable period under § 893.55 or by the time the person reaches age 10, whichever is later. The action is brought by the parent, guardian, or other person having custody of the minor.

Wisconsin Birth Injury Cases Have a Special Rule

The Wisconsin Supreme Court has specifically considered the statute of limitations in cases involving children injured at birth.

In Aicher v. Wisconsin Patients Compensation Fund, the court explained that Sections 893.55 and 893.56 must be read together when determining the deadline for a child injured at birth.

The court identified three relevant potential deadlines:

• By age 3 under the general three-year rule
• Within one year after discovery of the injury, subject to the applicable five-year limitation
• By the child’s 10th birthday under the minor-specific provision

The court concluded that a minor pursuing a medical malpractice claim has the benefit of the latest applicable date and therefore has until at least age 10 to initiate a medical malpractice action for an injury sustained at birth under the statutory framework discussed in the case.

That does not mean every Wisconsin birth injury claim automatically has an unlimited period until the child’s 10th birthday. The interaction between the statutes can be complicated, particularly when the child continues to experience injuries or the alleged negligence occurred at a different time.

What Is the Wisconsin Discovery Rule?

Wisconsin’s medical malpractice statute includes a discovery provision.

Under Wis. Stat. § 893.55, a medical malpractice claim may generally be commenced within one year after the injury was discovered, or should have been discovered through reasonable diligence, when that period provides the applicable later deadline. However, the statute also imposes a five-year limit from the act or omission for claims proceeding under that discovery provision.

For birth injury cases involving minors, Section 893.56 modifies the timing analysis.

This is one reason why parents should have an attorney examine the dates rather than applying the adult medical malpractice rules to a child’s case.

What If the Birth Injury Is Discovered Years Later?

A child may appear healthy at birth and later develop symptoms associated with a neurological or developmental injury.

For example, parents may initially believe that developmental delays are unrelated to the delivery. A diagnosis might not occur until the child is several years old.

The fact that the injury was discovered later does not necessarily mean the lawsuit can be filed at any time.

Both Illinois and Wisconsin impose statutory limits on medical malpractice claims, and each state has specific rules governing minors.

The relevant questions may include:

• When did the negligent act occur?
• When did the injury occur?
• When did the parents first discover the injury?
• When should the injury reasonably have been discovered?
• How old was the child when the claim accrued?
• What healthcare providers were involved?
• Does a statute of repose apply?
• Are there separate claims belonging to the parents?
• Are there circumstances that toll or otherwise affect the deadline?

A lawyer can assess these issues based on the child’s medical history and the applicable state law.

What Causes Birth Injuries?

Birth injuries can have many causes. Some are unavoidable, while others may result from negligent medical care.

Potential causes of birth injuries include:

Oxygen Deprivation

A baby’s brain can be damaged when the baby does not receive adequate oxygen. Medical professionals are expected to monitor the mother and fetus and respond appropriately to signs of fetal distress.

Delayed Delivery

When complications develop during labor, a delay in performing an emergency C-section or otherwise delivering the baby can potentially result in serious injury.

Improper Use of Delivery Instruments

Forceps and vacuum extractors can be appropriate in certain circumstances. However, improper use or failure to recognize when an assisted delivery is inappropriate can potentially cause injury.

Failure to Monitor

Healthcare providers may need to monitor fetal heart rate, maternal vital signs, contractions, and other indicators during labor and delivery.

A failure to properly monitor or respond to concerning changes can potentially contribute to a preventable injury.

Failure to Diagnose Maternal Conditions

Certain maternal conditions can increase risks to both the mother and baby.

Failing to recognize or appropriately treat these conditions can potentially lead to complications during pregnancy or delivery.

What Are Common Birth Injuries?

Birth injuries vary considerably in severity.

Some may resolve relatively quickly, while others can result in lifelong disabilities requiring extensive medical care.

Potential birth injuries include:

• Cerebral palsy
• Brain injuries
• Brachial plexus injuries
• Erb’s palsy
• Nerve injuries
• Bone fractures
• Spinal cord injuries
• Seizures
• Developmental disabilities
• Hypoxic-ischemic encephalopathy
• Other neurological injuries

The existence of one of these conditions does not automatically establish medical malpractice.

A successful birth injury claim generally requires evidence connecting the healthcare provider’s conduct to the injury and demonstrating that the provider’s care fell below the applicable standard of care.

What Damages Can a Birth Injury Lawsuit Recover?

A birth injury can create financial and emotional consequences that extend far beyond the initial hospitalization.

Depending on the facts and applicable law, a birth injury claim may seek compensation for legally recoverable damages such as:

• Past medical expenses
• Future medical care
• Rehabilitation
• Physical therapy
• Occupational therapy
• Speech therapy
• Prescription medications
• Medical equipment
• Home modifications
• In-home assistance
• Lost earning capacity
• Physical pain and suffering
• Emotional distress
• Other economic and noneconomic losses recognized under applicable law

Some children with severe birth injuries may require medical and supportive care for the rest of their lives.

Calculating future damages can therefore require input from medical professionals, life-care planners, economists, and other experts.

How Do You Prove a Birth Injury Was Caused by Medical Negligence?

A difficult part of a birth injury case is distinguishing between an injury caused by medical negligence and one caused by an unavoidable medical complication.

Generally, a medical malpractice claim requires evidence that:

1. A healthcare provider owed a duty of care.
2. The provider failed to meet the applicable standard of care.
3. The provider’s conduct caused or contributed to the child’s injury.
4. The injury resulted in legally compensable damages.

Birth injury cases often require extensive medical evidence.

An attorney may review:

• Prenatal records
• Maternal medical records
• Fetal monitoring strips
• Delivery records
• Nursing records
• Physician notes
• Medication records
• Neonatal intensive care records
• Imaging studies
• Pediatric records
• Developmental evaluations
• Rehabilitation records

Medical experts may also be needed to determine whether the healthcare provider’s actions or omissions caused the injury.

What Should Parents Do If They Suspect a Birth Injury Was Caused by Medical Negligence?

If you suspect that your child’s injury may have resulted from medical negligence, consider taking the following steps.

1. Obtain the Child’s Medical Records

Request copies of relevant medical records from the hospital, doctors, specialists, and other healthcare providers.

The records can help establish what happened during pregnancy, labor, delivery, and the child’s subsequent treatment.

2. Keep a Record of the Child’s Condition

Document diagnoses, symptoms, developmental delays, treatments, therapy, medical appointments, and other relevant information.

Keep receipts and records of expenses associated with the child’s care.

3. Avoid Assuming the Injury Was Unavoidable

Parents are often told that a birth injury was simply a complication of delivery.

That explanation may be correct, but it may also warrant further investigation if the circumstances suggest that something went wrong.

A medical malpractice attorney can have qualified medical professionals review the records and determine whether the care appears to have met the applicable standard.

4. Do Not Wait Until the Child Is Older

One of the biggest mistakes parents can make is assuming they can wait indefinitely because the child is still young.

Illinois and Wisconsin have specific rules governing medical malpractice claims involving minors. The fact that a child has years before reaching adulthood does not necessarily mean a claim can safely be postponed.

5. Speak With a Birth Injury Attorney

An attorney can review the dates and circumstances of the case and determine which statute of limitations applies.

This is particularly important when the injury was not immediately diagnosed or when multiple healthcare providers were involved.

What Happens If You Miss the Birth Injury Lawsuit Deadline?

The statute of limitations can be one of the most important issues in a birth injury case.

If a claim is filed after the applicable deadline, the defendant may argue that the lawsuit is barred by the statute of limitations or statute of repose.

In some circumstances, courts may dismiss a claim that was filed too late, regardless of how serious the child’s injury may be.

That is why parents should not wait until the deadline is approaching to investigate a possible birth injury claim.

The precise deadline should be calculated based on the specific facts and applicable law.

Illinois vs. Wisconsin Birth Injury Lawsuit Deadlines

The basic distinction can be summarized as follows:

	Illinois	Wisconsin
General medical malpractice rule	Generally 2 years from when the claimant knew or should have known of the injury, subject to a 4-year repose period	Generally the later of 3 years from injury or 1 year from discovery, subject to a 5-year limit for the discovery provision
Special rule for minors	Generally 8 years from the negligent act when the claimant was under 18, but no later than the 22nd birthday	Minor generally has until the applicable §893.55 period or age 10, whichever is later
Birth injury	Special minor rule under 735 ILCS 5/13-212 is important	Wisconsin Supreme Court has specifically addressed birth injuries and the interaction of §§893.55 and 893.56
Key concern	8-year period and 22nd-birthday cutoff	Interaction between 3-year, discovery, 5-year, and age-10 provisions

Illinois’ minor rule is established in 735 ILCS 5/13-212, while Wisconsin’s minor medical malpractice provision is found in Wis. Stat. §893.56.

These rules are general information and should not be used to calculate the deadline for a particular child without reviewing the facts.

Do You Need an Attorney to File a Birth Injury Lawsuit?

You are not necessarily required to have an attorney to bring every civil claim, but birth injury medical malpractice cases are often legally and medically complex.

In Illinois, medical malpractice complaints generally require an attorney affidavit and supporting report meeting the requirements of 735 ILCS 5/2-622. The statute requires consultation with a qualified healthcare professional and an assessment that there is a reasonable and meritorious basis for the action.

Wisconsin also has specific procedural requirements for medical malpractice claims. For example, Wisconsin law provides for a mediation process involving claims against healthcare providers, and filing a request for mediation can toll an applicable statute of limitations under certain circumstances.

These procedural requirements are another reason why parents should begin investigating a potential claim well before a filing deadline.

FAQs

How long do you have to sue for a birth injury in Illinois?

When the person entitled to bring the medical malpractice action was under 18 when the cause of action accrued, Illinois generally allows the claim to be brought within 8 years after the negligent act or omission, but not after the person’s 22nd birthday. Other rules may apply depending on the circumstances.

How long do you have to sue for a birth injury in Wisconsin?

Wisconsin has a special rule for minors. Under Wis. Stat. §893.56, a minor’s medical malpractice action generally may be brought within the applicable period under §893.55 or by the child’s 10th birthday, whichever is later. The Wisconsin Supreme Court has specifically held that the statutory framework gives a child injured at birth the benefit of the applicable later deadline, including the age-10 provision.

What if I did not discover my child’s birth injury until years later?

A later diagnosis does not necessarily mean that the filing deadline begins on the date of diagnosis. Illinois and Wisconsin have different discovery and minor-specific rules. An attorney should review the dates of the alleged negligence, injury, and discovery before determining whether a claim is timely.

Can I sue a doctor for causing a birth injury?

Potentially. If a doctor or other healthcare provider failed to meet the applicable standard of care and that negligence caused the child’s injury, the family may have grounds for a medical malpractice claim.

However, a birth injury alone does not establish negligence. Medical records and expert medical evidence are generally necessary to determine whether malpractice occurred.

Can you sue a hospital for a birth injury?

Potentially. Whether a hospital or other healthcare facility can be held responsible depends on the facts, including the relationship between the healthcare provider and facility, the provider’s role, and the legal basis for the claim.

What if my child was diagnosed with cerebral palsy years after birth?

A delayed diagnosis does not automatically prevent a birth injury claim, nor does it automatically extend the deadline indefinitely.

Cerebral palsy and other neurological conditions can have many causes. A medical and legal review is necessary to determine whether the condition may have resulted from preventable medical negligence and whether the claim remains timely under the applicable state law.

Can parents sue for their child’s medical expenses?

Potentially. Illinois specifically provides that claims for medical expenses of minors arising from another person’s injury are generally subject to the same period applicable to the injured person’s claim.

Wisconsin also recognizes derivative claims in medical malpractice matters, but the applicable limitations rules should be evaluated based on the specific claim and circumstances.

What happens if the birth injury lawsuit deadline has already passed?

A claim may be barred if the applicable statute of limitations or statute of repose has expired. However, calculating the deadline can be complicated, particularly in cases involving minors, delayed diagnosis, multiple defendants, or other circumstances that may affect the limitations period.

Do not assume that a claim is automatically barred—or automatically timely—without having the specific dates reviewed by an attorney.

Talk to a Birth Injury Lawyer in Illinois or Wisconsin

A birth injury can affect a child’s health, development, education, independence, and quality of life for years or even a lifetime. When parents suspect that medical negligence contributed to the injury, understanding the legal deadline is an important first step.

The rules governing birth injury lawsuits are different in Illinois and Wisconsin, and the deadline can depend on the child’s age, the date of the alleged negligence, when the injury was discovered, and other circumstances.

If your child suffered a suspected birth injury in Chicago, Illinois, or Wisconsin, an experienced birth injury attorney can review the circumstances, help determine whether medical negligence may have occurred, and explain what legal options may be available. Contact us today to discuss your case!

Do not wait until the deadline is approaching to investigate a potential claim.

This article is intended for general informational purposes only and does not constitute legal advice. The statute of limitations and other deadlines can vary depending on the facts of an individual case. Speaking with an attorney about the specific circumstances of a potential birth injury claim is important.