How Long After Birth Can You File A Birth Injury Claim In Canada - Diamond and Diamond Lawyers
  • Monday, 24 February 2020

How Long After Birth Can You File A Birth Injury Claim In Canada

As much excitement and joy as a new birth can bring, it is not always an uncomplicated process. 

On some occasions, a birth results in an injury to the baby due to the negligence or malpractice of the staff. These injuries can have serious and debilitating life long effects on the child.

In such situations, the doctors or hospital may be liable for damages and compensation through what is known as a birth injury lawsuit.

If you or a loved one suffered a birth injury and want to file a claim, it’s important to understand the period of time in which you can file a birth injury claim. 

Let’s take a look.

How The Statute Of Limitations Applies To Birth Injury Claims

In Canada, there is a two year statute of limitations for filing a birth injury claim. 

However, this is not two years after the birth. Exactly when the two year period begins is subject to several conditions.

Rather than at birth, you have two years after the person became aware of the injury, became aware that it was the result of negligence or malpractice, and realized that the matter would require legal action.

Further provisions help to protect minors delay the beginning of the two year period until the minor has reached the age of majority and turned eighteen. The beginning of the period will be further delayed if the person remains incapacitated when they turn eighteen.

If a litigation guardian is appointed to the person, the two year period will begin with the appointment. 

So How Long Do You Have?

To put it simply: a minor has up to two years after they turn 18 to file a birth injury claim.

The statute of limitations does not begin until the person reaches the age of majority — with one exception. If the individual is appointed a litigation guardian while they are still a minor, the two year period will begin immediately.

One important caveat to keep in mind is that the party you may be filing against has the ability to petition the court to appoint a litigation guardian. This will begin the two year period regardless of if the party is a minor or incapacitated.

Get The Compensation You Deserve

You may have already noticed that birth injury lawsuits are complicated matters. 

Even seemingly simple questions about how long you have to file your birth injury claim can have complicated and confusing answers.

Birth injury lawsuits are a tricky area of personal injury law which require a depth of legal knowledge and experience to handle properly.

Without a capable and tested personal injury lawyer on your side, you’ll be going it alone against all of the confusing intricacies of the legal system — and more likely than not come out empty handed.

Looking for some legal representation?

Schedule a free consultation with us today. All of our initial consultations are completely free, meaning you have nothing at all to lose by getting in touch!

FAQ

When exactly does the two year statute of limitations for filing a birth injury claim start?

Technically, the 2-year statute of limitations for a birth injury begins once the child turns 18. That is provided they are still incapacitated by their injuries, at that stage. Also, provided they have not been appointed a litigation guardian. If they have, the claim must be made within 2 years of that date. The medical facility can petition the court to have a litigation guardian appointed. This is just one example of how complicated birth injury claims are, which is why if a child has suffered a birth injury a lawyer with the right expertise needs to be consulted.

What is a litigation guardian?

A litigation guardian is appointed to make important decisions on behalf of a minor or another person that is incapable of providing instructions for legal matters. Sometimes they are appointed if the person involved in the legal proceedings is absent and it is not known if they are alive or dead. Litigation guardians are not lawyers. But they can instruct a lawyer on behalf of the person they are representing and should oversee the progress of the case.

If the mother can't personally sue for birth injury claims, who else can sue on her behalf?

When a mother can’t personally sue for birth injury claims another party can take action. If she died during childbirth due to neglect of a medical professional the father of the child can sue on behalf of that child. Should the mother live but be incapacitated to the point where she is incapable of instructing a lawyer, a litigation guardian can be appointed. They will make decisions on her behalf and pursue her case.

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