If your child suffered a birth injury and you are filing a medical malpractice claim in Oregon, you probably have a lot of questions about the roles involved. We’ve written this straightforward blog to provide the answers.
After a birth injury, one of the first things a family learns is that adults involved will need to fill codified roles to file a successful lawsuit. Oregon law gives the claim to the child, but someone else has to carry it. Depending on the situation, that person is a guardian ad litem, a conservator, or a personal representative (PR). Each role has its own rules, its own court oversight, and its own deadlines.
Most parents never hear these terms until they are in the middle of filing a medical malpractice case and unsure of what to do next. This guide explains them in plain English, so you know what filing a birth injury claim actually involves before you start.
If you already have questions about your child’s delivery, call Barton Trial Attorneys at (541) 265-5377 for a free consultation. We will review the records and tell you honestly what we find.
One Birth Injury May Result in Three Potential Claims
When a baby is hurt during pregnancy, labor, or delivery, there are usually two, and sometimes three, separate sets of losses.
The child’s claim
covers the child’s own harm. This is inclusive of their pain and suffering, the loss of the life they were supposed to have, lost earning capacity as an adult, and the cost of medical care and long-term care after they turn 18. This is almost always the larger part of the case. For instance, a child with cerebral palsy or severe brain damage may need therapy, nursing, equipment, and supervision for decades.
The parents’ claim
traditionally covers the medical expenses parents pay while the child is a minor. Under ORS 31.700, parents can consent to fold those expenses into the child’s case instead, so everything is decided in one legal action. (Our legal staff will advise on this course of action during your consultation, as there are potential consequences to this approach.)
The mother’s claim
is sometimes a third piece. These claims arise after mismanaged delivery, an emergency cesarean section performed too late, or an uncontrolled hemorrhage can injure the mother as well as the baby. Resulting physical limitations, wage loss and medical expenses fall into this category. Like other types of personal injury claim, this pits the plaintiff—in this case, the mother—against the insurance company for the medical system that failed her.
Three Common Roles in Birth Injury Lawsuits
The Guardian Ad Litem: Speaking for the Child
A guardian ad litem is a competent adult the court appoints to act in the child’s interests for the purposes of the lawsuit. In most birth injury cases, it is a parent. For a child under 14, a relative, friend, or other interested person applies for the appointment. It is usually a short, routine filing at the start of the case.
The guardian ad litem makes decisions about the case on the child’s behalf, with the advice of counsel. Importantly, their role is limited to the litigation; it does not give anyone control over money the child eventually recovers. If a parent’s own interests seem to be pulling in a different direction, the court will appoint someone else.
Families often worry that filing a birth injury claim means standing in a courtroom and accusing a doctor they liked. It rarely feels that way. The claim is defended by the hospital’s or provider’s insurer, and most of the work happens through records, medical experts, and depositions.
Have you been appointed the guardian ad litem for an injured child? Talk with a birth injury lawyer about your child’s case.
The Conservator: Protecting the Child’s Financial Future
A conservator, appointed and supervised by the circuit court, manages funds only for the child’s benefit and files regular accountings with the court when the minor’s recovery is $25,000 or more. They generally need court approval for significant expenditures. This role is typically filled by a parent, a professional fiduciary, or a bank or trust company.
The court also reviews the settlement itself. A judge wants to know that the amount is fair to the child, that the attorney fees and costs are reasonable, and that the plan for the money actually fits the child’s needs.
When Your Child Turns 18: Adult Guardianship
For a young adult with severe cerebral palsy, hypoxic brain damage, or traumatic brain injury, families sometimes need to petition the court for an adult guardianship (for personal and medical decisions) or continue a conservatorship (for finances). If your child is coming of age and you anticipate issues related to medical care, we urge you to reach out to us.
The Personal Representative: When a Baby Does Not Survive
In the tragic instance of a child’s death, Oregon’s wrongful death statute, ORS 30.020, gives the claim to the personal representative of the child’s estate. Usually that is a parent, appointed by the probate court. The personal representative brings the case for the benefit of the family members the statute names, typically the parents and any siblings.
The personal representative has to be formally appointed before the claim can be filed. It is a step that takes time, and it should not be left until the last minute. The filing deadline is generally three (3) years, measured from discovery of the injury, but no later than three years after the death or the longest applicable statute of repose.
A PR plays a critical role in a wrongful death case. Damages can include medical and funeral costs, the child’s own pain and suffering between injury and death, and the family’s loss of the child’s society and companionship.
Our Portland wrongful death attorneys handle these cases with the care they require. If you are facing this, call us at (541) 265-5377. You do not need to have the paperwork figured out before you do; we encourage you to call first and decide your next steps from there.
Common Birth Injuries in Oregon
The injuries we see most often include:
- Oxygen deprivation and HIE. When fetal distress goes unrecognized, or a necessary cesarean section is delayed, a baby’s brain can be starved of oxygen. Learn more about HIE birth injury claims.
- Cerebral palsy, often a lasting result of oxygen deprivation or brain injury around birth.
- Brachial plexus injuries and Erb’s palsy, which frequently follow excessive traction during a shoulder dystocia delivery. See our pages on brachial plexus injuries and Erb’s palsy.
- Medication errors, including mismanaged Pitocin that overstimulates contractions, or failures in dosing or monitoring during labor.
- Skull fractures and brain bleeds from misused forceps or vacuum extractors. Our traumatic brain injury lawyers understand how these injuries unfold over time.
- Missed maternal conditions, such as infection, preeclampsia, or placental problems that should have changed the delivery plan.
For an overview of every type of case we handle, visit our Oregon birth injury lawyer page.
Oregon Medical Malpractice Deadlines
- Medical negligence: generally two (2) years from when the injury was discovered or reasonably should have been, with a five-year statute of repose (ORS 12.110(4)).
- Tolling for children: the clock is paused while a child is a minor, but the extension cannot exceed five years or run more than one year past the child’s 18th birthday, whichever comes first (ORS 12.160).
- Public hospitals: if care was provided by a public body, such as OHSU or a public health district hospital, the Oregon Tort Claims Act requires written notice within 180 days (ORS 30.275).
- Wrongful death: generally three (3) years, subject to the limits described above.
FAQs about Guardians, Conservators and Personal Representatives in Birth Injury Cases
Do I need to be appointed guardian ad litem before I call a lawyer?
No. Call first. Your lawyer handles the appointment as part of filing the case. In most Oregon birth injury cases, a parent serves as guardian ad litem, and the filing is routine.
Can a parent serve as both guardian ad litem and conservator?
Often, yes. Many parents serve in both roles. A court may appoint someone else, such as a professional fiduciary, if the recovery is large, the family situation is complicated, or a parent’s interests could conflict with the child’s.
Can I use my child’s settlement to pay household bills?
Generally, no. A child’s recovery belongs to the child. A conservator must spend it for the child’s benefit and account to the court. Costs directly tied to the child’s care, such as therapy, equipment, or home modifications, are a different matter and are often exactly what the fund is for.
What if we already signed something from the hospital or insurer?
Call us before you sign anything else. Risk managers and adjusters work for the hospital. Settlements of a minor’s claim above the statutory threshold need court approval to be binding, but any document you have signed should be reviewed by a lawyer right away.
Who receives the money in a wrongful death case for a baby?
The beneficiaries Oregon law identifies, usually the parents, and sometimes siblings. The personal representative brings the claim and the court approves the settlement and its distribution.
What is the difference between a birth injury and a birth defect?
Timing and cause. A birth defect develops during pregnancy, often from genetic or developmental causes. A birth injury is harm that happens during labor or delivery, frequently from oxygen deprivation, physical trauma, or a delayed response to distress. Medical experts help determine which is which.
How much does it cost to hire a birth injury lawyer?
Nothing up front. We handle these cases on a contingency fee basis. There is no fee unless we recover for your family, and we advance the costs of records, experts, and litigation. Your consultation is free.
How long does a birth injury case take?
Usually longer than other injury cases. The medical analysis is detailed, the defense is aggressive, and the court approvals for a child’s recovery add steps at the end. A firm with a small caseload can carry a case that long without losing focus on it.
Talk to an Oregon Birth Injury Attorney
Guardians, conservators, and personal representatives exist for one reason: to make sure a child’s rights are protected by someone who will see the case through. Choosing the right lawyer is part of that same responsibility.
If your child was injured during pregnancy, labor, or delivery, call Barton Trial Attorneys at (541) 265-5377 for a free, confidential consultation. We will review the records, explain who needs to be appointed and when, and tell you honestly what we find.
Barton Trial Attorneys: You’re not a file. You’re family.