Idaho Law Blog

Idaho's statutory "cap" on non-economic damages is here:


It is currently $386,622.39 and amounts to a government imposed limit, sought after by the insurance industry, on the freedom to have a jury decide the limit for injury victims here in Idaho.  Absent a showing of reckless conduct, discussed below, special interest lobbies in Idaho have thus limited pain and suffering for someone, by way of example, paralyzed for life by another’s negligence to about $380,000 under the current formula. This is immoral and unjust as that figure comes nowhere close to the fair-trade value for such harm.  Absent a showing of recklessness, for another example, a family who loses their young child due to negligence of another is limited to $380,000 per claimant for loss of a loved one.  This is inhumane as that figure does not remotely balance the scales of justice for such a loss.  What those who insure and defend negligent actors have attempted to do is take from Idaho citizens the right to dole out justice in accordance with the true human harms and losses.  What this has really done, as discussed below, is shift the margin of debate to the issue of reckless conduct.   



The cap applies on a per-claimant basis, in other words, to each plaintiff separately.  Historically, the defense industry in Idaho had taken the loathsome position that the cap was per lawsuit, regardless of the number of injured victims.  It took a trip to the Idaho Supreme Court to set the insurance industry straight on what was obvious to reasonable individuals from the start of this very unreasonable limit on jury damage awards.


The cap is lifted and does not apply in cases where reckless conduct is shown and found by the jury at trial, as per Idaho Code §6-1603.  In this sense, the cap really is not a cap at all in the event there is reckless conduct at issue.  In cases where there is reckless conduct, it is a misrepresentation for the defense to claim that the "cap" is the "maximum allowed" by law.  If the cap is lifted, there is no maximum.  The days have long past where cases are settled without the defense paying a premium on cases where there is a material likelihood a jury will find reckless conduct, given the enormity of exposure such a finding poses for the defendant (possibly in excess of the defendant's liability insurance policy limits).


Idaho Code §6-1601(10) defines reckless conduct as "conduct in which a person makes a conscious choice as to the person’s course of conduct under circumstances in which the person knows or should know that such conduct both creates an unreasonable risk of harm to another and involves a high probability that such harm will actually result."


The Idaho Supreme Court has routinely upheld cases wherein Idaho's cap on general damages was lifted by the jury finding reckless conduct in cases involving medical malpractice and personal injury.  Of course, given the facts, juries are willing to label reckless conduct as such, and award far in excess of the artificial damages limit set by statute as a result of special interest lobbies, ranging from liability insurers, healthcare insurers, and hospital and healthcare associations – which is really what the arbitrary statutory cap was designed to protect at the expense of victims of negligent conduct. There have been numerous cases in Idaho wherein juries have sided with claimants found reckless conduct, such that the statutory cap on general damages was lifted, including in reported cases with total damages ranging from $3 million to nearly $8 million.  So, although insurance companies, corporations, hospitals, and healthcare providers often like to invoke and hide behind what is really an immoral and inhumane statute, all the while claiming to be benevolent, Idaho juries are not afraid to do the right thing and find reckless conduct where the facts support it, especially in the medical malpractice and serious personal injury context.  

Medical malpractice birth injury lawyer and attorney services are provided by Mahoney Law throughout Idaho.  If you or a loved one has experienced problems with labor and delivery resulting in injury to the newborn baby, we may be able to help.  Medical malpractice in labor and delivery takes many forms.  First, there can actually be medical malpractice by the doctor, nurses, midwife, or hospital in the prenatal phase of pregnancy that harms the fetus leading to a birth injury or, sadly, even death.  Second, there can be medical malpractice during the labor committed by the doctor, nurses, midwife, or hospital that causes injury or death to the unborn baby.  Third, there can be medical malpractice during the delivery itself that harms the baby, sometimes in the form of traumatic injury or in the form of ischemic or anoxic injury from a lack of blood flow or oxygen to the baby.  Fourth, there can also be medical malpractice in the post-natal phase, either in the NICU or in the newborn nursery that results in preventable harm to the newborn.  As birth, labor, and delivery medical malpractice attorneys, we review the prenatal records, the labor and delivery records, and the neonatal records for signs of malpractice.  We analyze the health of the fetus and the mother as the process unfolded.  We understand the physiology of the baby and the mother during labor and delivery and how signs of trouble are supposed to be monitored by the healthcare providers.  As medical malpractice birth lawyers, we investigate cases with the help of highly qualified experts to determine if, in certain cases, a cesarean section needed to be done in a timely manner, the failure to perform which may have resulted in preventable brain injury to the baby.  Please reach out to us here at Mahoney Law if you would like us to professionally and confidentially review a potential labor and delivery birth related medical malpractice case.  


Here are some key details and quick facts on birth related medical malpractice cases in Idaho. The time deadline, known as the “statute of limitations,” is usually two (2) years from the date of the malpractice.This deadline is different with minor children who, in a case wherein the negligence was at birth, may have up to eight (8) years depending on the situation, however the parents still usually only have two (2) years within which to take legal action on a labor and delivery malpractice claim.  Also, Idaho statutes require that certain paperwork be filed with the Idaho Board of Medicine before a lawsuit is filed, called a prelitigation screening panel application.  If there is a governmental entity involved, such as a county hospital for example, Idaho law may require that a “notice of tort claim” be filed within 180 days; this may be longer with minor children.  The deadlines in each case are specific and you should consult legal counsel if you would like to explore bringing a labor and delivery related medical malpractice claim.


Another important part of a labor and delivery medical malpractice case is for the attorney to prove that the healthcare provider violated the applicable standard of care.  The medical malpractice lawyer in a labor and delivery case must comply with Idaho Code Section 6-1012 and 6-1013 with respect to expert testimony to show that the defendant was negligent and perhaps even reckless in rendering care or in failing to render care.  Mahoney Law, PLLC of Idaho works with high level experts in evaluating birth injury cases.     

There are many different types of labor and delivery birth medical malpractice claims that a qualified medical malpractice lawyer and attorney may help you with.  Some examples are: 

--lack of oxygen during labor and/or at birth

--lack of blood flow during labor and/or at birth

--hypoxic ischemic encephalopathy (HIE)

--shoulder dystocia

--forceps injury or trauma

--vacuum injury or trauma

--injuries in the NICU

--improper fetal heart rate monitoring

--improper use of Pitocin or other labor inducing drugs

--placental abruption and other placental complication

--umbilical cord complications 

--failure to perform a timely cesarean section

--doctor labor and delivery medical malpractice 

--nurse labor and delivery medical malpractice

--midwife labor and delivery malpractice

--hospital labor and delivery medical malpractice

--neonatal resuscitation team medical malpractice

--neonatal cooling and HIE

--newborn brain injury

--stillbirth / stillborn

--other birth related medical malpractice conditions 


Here are some answers to common questions on medical malpractice birth injury and labor and delivery cases.  Is medical malpractice difficult to prove?  Sometimes yes, sometimes no.  Your medical malpractice birth injury labor and delivery lawyer will first review your situation to see if a birth injury or labor and delivery lawsuit is warranted.  How much is a medical malpractice lawsuit worth?  This varies greatly depending on how strong the case is on liability, i.e., on proving the care provider was negligent and committed malpractice.  This also varies greatly depending on the significance of the harms and losses suffered by the patient.  In the final analysis, if a case does not settle, the jury gets to decide based on the law as instructed by the court.  What is considered medical malpractice?   Medical malpractice, including in the childbirth labor and delivery context, is a healthcare provider’s failure to meet the applicable standard of care.  Can you file a medical malpractice case without a lawyer?  The answer is yes, with a huge “but.”  But, it is highly unadvisable.  Medical malpractice cases are complex and time consuming, particularly child birth labor and delivery birth injury cases, so going it alone is not advisable.  It is best to have a birth case lawyer review your case for an accurate attorney evaluation.


The Process of a Birth Labor & Delivery Medical Malpractice Case:  While each birth injury case is unique and requires personalized time and attention, there are some basic, general steps that apply in most cases:


Step 1: Initial Consultation — No Charge, No Obligation

  • You tell us what happened during the pregnancy, labor, delivery, and in the hospital after delivery.


Step 2: We Gather & Analyze Medical Records

  • Next, we gather all of the medical records from the pregnancy, labor, delivery, and subsequent hospitalizations.
  • We review and analyze the pre-natal records, the ultrasounds, the fetal heart rate monitor strip, the doctor’s progress notes, the nurse’s labor and delivery notes, and the hospital records.


Step 3: Expert Review

  • We pay, at our expense to have medical experts (doctors and nurses) review the case to determine if the case has merit


Step 4: We Advise You Of Our Findings


Step 5: If The Case Has Merit

  • In meritorious cases, we next proceed to make a medical malpractice claim against the doctors, nurses, hospital, and/or other responsible healthcare providers. Often, this involves filing certain paperwork with the state board of medicine and then filing a lawsuit.
  • Once a lawsuit is filed, we proceed to use the formal discovery process to learn all the necessary factual information.
  • Then, if the opposing side will not settle, we proceed to try the case to a jury.


How Long Does All This Take?

 A birth injury medical malpractice case is a very serious, time-consuming process. Anyone who tries to tell you otherwise is not being honest – there is no such thing as a “quick settlement” with these cases. In order to obtain the maximum amount of money damages possible, we must perform a thorough evaluation and workup of your case. If the case proceeds to litigation, that can be very time consuming as well. But, if you think of the lifetime of disability and impairment that a family will live with as a result of the medical malpractice, the time it takes to properly obtain the money damages to which the family and child are rightfully entitled is relatively short.


How do I hire a lawyer for a medical malpractice case?  How do I retain an attorney to review a labor and delivery lawsuit?  What is the process for having a law firm evaluate a birth injury case?  These are frequently asked questions as to medical malpractice in terms of reaching out to a lawyer on a childbirth case.  The first step is easy, simply call or email us.  We will carefully and attentively listen to the facts of your situation.  We understand that most people have never had to speak with a lawyer or hire an attorney before and that it can be intimidating.  Again, simply call or email us and we will evaluate your situation free of charge and totally confidentially.  Sometimes, we can tell right away if there is a potential case or if the caller would be better off going a different direction.  If we think there might be a claim, we will either gather the medical records ourselves or have you obtain them for us.  Again, this is free of charge and confidential.  If we need to, we will also consult with experts.  If we think there is a case and would like to take on representation, we will enter into a clear, concise, easily understood written agreement that sets forth our contingency fee compensation and the like whereby there are no attorney fees unless we win by settlement or verdict and then our compensation is a percentage of the monetary recovery.  We do not pressure you to sign anything and welcome questions and concerns.  If you or a loved one think there may have been malpractice as to childbirth, labor, delivery, neonatal resuscitation, in the NICU, or otherwise, please do reach out to us – we are understanding, compassionate, and, above all, we listen. 



What types of damages may be recovered in a medical malpractice case involving labor and delivery?  Childbirth cases involve several major categories of money damages.  In a birth injury case, there are damages for future care, sometimes outlined in a future life care plan.  There are damages for past medical bills, sometimes for a lengthy NICU stay.  Both the child and parents may be entitled to significant damages for pain, suffering, and loss of enjoyment of life, the human intangible losses can be enormous.  Consideration also must be given for loss of income on the part of the child and parents.  In some cases, all of these damages can total many millions of dollars.   Proceeds from a settlement or collected verdict may be invested in a special court approved trust account for the benefit of the child, to be used only for necessary expenses.  



Once a birth injury lawsuit is filed in court, the formal litigation process begins.  Each side in the childbirth medical malpractice lawsuit will exchange written information requests, referred to as discovery requests.  Depositions (statements under oath) will be taken of relevant witnesses.  Expert witnesses in the field of labor and delivery malpractice will be disclosed by each side, and their depositions may be taken.  Evidentiary motions may be filed.  A jury trial may can take roughly two to four weeks, depending on the court’s daily trial schedule.  A party may have a right to appeal following trial.  This process is not quick; it can take several years, but viewed in perspective it is short relative to the lifetime of disability that a birth injury can inflict on both the child and family.   

OSHA has cited and fined the meat packing plant in Kuna, Idaho where a worker died recently.  The facility had previously been cited for lack of proper machine related safety procedures.  The plant is owned by Darling Ingrediants out of Irving Texas.  

Mahoney Law is Idaho's Product Liability and Wrongful Death Law Firm.

The 2020 edition of Mountain States Super Lawers is published and out.  We are pleased that Idaho attorney Patrick Mahoney has once again been named as a top medical malpractice lawyer by this exclusive, recognized publication based on peer nomination.  For all your medical malpractice legal needs, contact Mahoney Law PLLC at (208) 345-6364.  We handle all types of medical malpractice cases.  

For a free, no obligation consultation with Mahoney Law