Step 4: File a Complaint

To begin legal proceedings, a complaint must be filed with the appropriate court that has jurisdiction in the case. In birth injury cases, this is usually the state in which the child was born or was injured.

In some cases, a person may have the choice to file in one of several jurisdictions. Attorneys understand the difference in the types of courts – federal, state, and local district, for instance – and the advantages or disadvantages that each court may represent. There may be strategic benefits to filing in certain courts, as well as convenience or a more appealing potential jury pool.

Where should the complaint be filed?

There are unusual occurrences wherein an action resulting in harm to an individual will lead to legal actions brought by an interested party in a medical malpractice civil action and prosecuted by a government representative in a criminal proceeding. In these cases, there are two distinct and separate legal actions, although a lot of the evidence presented may overlap.

Most legal services and litigation required by the family of a child with a birth injury will likely fall under the category of civil, not criminal, law.

The parties to the lawsuit must be identified in the complaint

There are two main parties to a complaint:

• Plaintiff – The plaintiff is the person who is bringing suit against the defendant or defendants in a court of law. In the case of medical malpractice or birth injury, the plaintiff is most likely the child. A minor is represented by their custodial parent or legal guardian.
• Defendant – The defendant is the individual or individuals, or healthcare facility that is being sued by the plaintiff. The plaintiff has reason to believe the defendant or defendants are responsible for damages. Where the injury is a birth injury, the defendant is the doctor, nurse, or other medical professional or facility whose actions, or failure to act, while the expectant or new mother was most vulnerable resulted in serious harm to the child.

There may be more than one party who is deemed responsible for the negligence or failure to meet the standard of care due and owing to an expectant or newly-delivered mother. Attorneys often name every individual who may be responsible for the acts or failure to act. Defendants shown to not have any responsibility for the act or the omission through the legal process may be formally dropped from the complaint.

Four steps to initiating a civil action

There are four procedural requirements at the onset of a civil action:

• The complaint – The complaint is a legal document filed in a court of law by a plaintiff setting forth the cause of action. The pleaded elements allegedly caused the loss for which the plaintiff is seeking a legal and equitable remedy.
• The summons – The summons is a document issued by the court when a complaint is formally filed. The summons and the complaint are then delivered to the defendants as the first official notification that a complaint has been filed against them in a court of law. The summons informs the defendants that a response is required by a specified day, and provides a date on which the defendants are to appear in court. It is at this point that the defendant will hire a defense attorney and involve appropriate insurance companies of the claim. The defense attorney will first review the complaint and summons to verify it meets all legal requirements to proceed.
• The answer – The answer is the defendant’s written response to the complaint, which is filed with the court within the designated time frame dictated in the summons. This usually is prepared by the defendant’s counsel in cooperation with the counsel that defends the insurance provider. The response provides answers to each allegation against the defendant contained in the complaint. The defendant’s response will either admit or contest the allegation. If there is insufficient information in the complaint to admit or contest, the defendant’s counsel will clearly state so, as failure to respond to any allegation can be interpreted as an admission of truth. The response will attempt to counter, defeat, and remove allegations from the complaint in an attempt to dismiss some, or all, of the allegations against the defendant.
• Counterclaims – A defendant may file a counterclaim against the plaintiff at the time of the response. These claims are affirmative allegations against the plaintiff that would support a complaint if brought as an independent action.

Once the complaint is properly filed, attorneys for Stern Law, PLLC will begin collecting evidence in your birth injury case.