How Long Do I Have to File a Birth Injury Lawsuit in Louisiana?
Legal Deadlines for Filing a Birth Injury Lawsuit in Louisiana
When your child suffers a birth injury, taking legal action may not be the first thing on your mind. But if you’re considering a lawsuit, it’s crucial to understand how long you have to file. In most states, this is referred to as the “statute of limitations.” In Louisiana, however, the legal term is the “prescriptive period.”
Understanding the difference—and the very real deadlines involved—can mean the difference between securing justice for your child or missing your chance entirely. This guide will explain how Louisiana law treats birth injury timelines, what exceptions exist, and what steps you can take to protect your child’s rights.
What Is the Prescriptive Period for Birth Injury Cases in Louisiana?
In Louisiana, most medical malpractice claims, including birth injury cases, are governed by Louisiana Revised Statutes § 9:5628. This law sets a one-year prescriptive period from the date the alleged malpractice occurred or was discovered.
What does that mean for birth injuries?
If your child was injured at birth due to delayed C-section, improper use of forceps, or an undiagnosed hypoxic brain injury, you have one year to take legal action from the date of the injury or from when the injury was reasonably discovered. This is what’s commonly known in other states as the statute of limitations, but in Louisiana, it’s called prescription.
The prescriptive period is designed to ensure timely filing, so evidence is still available, and cases can be fairly litigated. However, there are exceptions that can extend this timeline.
The Discovery Rule and the Three-Year Peremptive Period
What is the discovery rule?
Louisiana recognizes that some birth injuries may not be immediately apparent. If your child’s symptoms, such as developmental delays or neurological issues, don’t surface until months later, the discovery rule allows the one-year period to begin when the injury is discovered or should have reasonably been discovered.
But—and this is critical—even if the discovery is delayed, you must file no later than three years from the date the malpractice occurred. This is called the peremptive period, and it’s a strict cutoff with no exceptions.
Example:
If your child’s injury occurred during birth but wasn’t diagnosed until their first birthday, you may still have one year from the date of diagnosis. But if you try to file after three years have passed since the injury, the court will likely dismiss your case, even if the injury wasn’t discovered until later.
What Happens If You Miss These Deadlines?
In most cases, missing either the one-year prescriptive period or the three-year peremptive period means your claim cannot move forward. Louisiana courts strictly enforce these timelines, even in cases involving children.
What about minors?
Unlike many other states, Louisiana does not automatically extend the filing period for minors in medical malpractice cases. That means parents must act within the same timeframes outlined above, even when advocating on behalf of an injured child.
This makes it especially important to consult a Louisiana birth injury lawyer as soon as possible after discovering any signs of harm.
Real-World Example – Why Timing Matters in a Birth Injury Case
Imagine a mother in Gretna gives birth at a local hospital. During delivery, there’s a brief but critical delay in responding to signs of fetal distress. The baby is born appearing healthy, and the parents leave the hospital unaware that anything went wrong.
Around the child’s second birthday, the parents begin noticing developmental delays. After a series of evaluations, a neurologist diagnoses the child with a hypoxic brain injury, likely caused by oxygen deprivation during labor. Understandably, the parents are overwhelmed to immediately file a claim for hypoxic brain injury and take several more months to process the diagnosis before seeking legal help.
By the time they contact an attorney, it’s been over three years since the child’s birth. Even though the injury wasn’t diagnosed until much later—and even though they acted as soon as they understood the full scope of the issue—Louisiana’s peremptive period has expired. The court will likely dismiss the case because the three-year deadline begins at the time of the medical error, not the time of discovery. So, in the example:
- The injury (hypoxic event) occurred at birth—let’s say January 1, 2022.
- The parents begin noticing developmental delays around the child’s 2nd birthday, January 1, 2024.
- After evaluations, the child is diagnosed with a hypoxic brain injury on April 1, 2024.
- The parents take several months to process the diagnosis before seeking legal help.
- By the time they contact an attorney, around February 1, 2025, more than three years have passed since birth.
- Even though they acted quickly after the diagnosis, Louisiana’s three-year peremptive period has expired. The court would likely dismiss the case.
This is why it’s critical to speak with a birth injury lawyer as soon as there’s any suspicion of harm. A legal team can begin reviewing records, timelines, and signs of injury early ensuring your child’s case is preserved before any deadlines pass.
Frequently Asked Questions About Birth Injury Lawsuits in Louisiana
Q: What is the difference between a prescriptive period and a statute of limitations?
While many people refer to legal deadlines as a “statute of limitations,” Louisiana uses the term “prescriptive period.” Both refer to the time window in which you must file a lawsuit. The key difference is that “prescriptive period” is specific to Louisiana’s civil law system and reflects the legal language used in state statutes and courts.
Q: What is a peremptive period, and how is it different from prescription?
A peremptive period is an absolute deadline that cannot be paused or extended—even if you didn’t know about the injury right away. In birth injury cases, Louisiana law sets a three-year peremptive period. If you miss this deadline, your claim is barred regardless of the circumstances.
Q: What if I’m not sure when the injury occurred or was discovered?
That’s common, especially with birth injuries that present as developmental delays or neurological disorders. An experienced birth injury attorney can help review medical records, timelines, and evaluations to determine whether your case falls within Louisiana’s legal deadlines.
Q: Can I still file a claim if I used Medicaid or government-funded healthcare?
Yes. Regardless of how your child’s care was paid for, if a provider’s negligence led to a birth injury, you may still have a valid claim. Keep in mind, however, that some government payers may require notice or have lien rights on any settlement you receive. A lawyer can help you navigate these requirements.
What to Do Next – Protecting Your Child’s Rights
If you believe your child’s injury was caused by a medical mistake, taking these steps early can strengthen your claim and protect your legal rights:
- Gather medical records from your child’s birth and any follow-up treatments or evaluations.
- Document dates of diagnosis, symptoms, or when you noticed developmental delays.
- Contact a Louisiana birth injury attorney to review your case timeline and determine if you’re within the allowed filing window.
At Palazzo Law Firm, we understand the urgency, complexity, and emotional toll of birth injury cases. We provide compassionate, personalized legal support to help families pursue justice and secure the resources their child needs to thrive.
