Yes. If your baby was injured during labor or delivery at Gallup Indian Medical Center or another Indian Health Service or tribal hospital, the family can usually bring a claim. But it is not a lawsuit against the doctor. It is a claim against the United States under the Federal Tort Claims Act, and it has a two-year deadline that does not pause because the injured person is a newborn. Families who wait for a child to grow, or for a diagnosis to become certain, can lose the case before they knew they had one.
Can you file a claim for a birth injury at an IHS hospital?
Yes. Doctors, nurses, and midwives employed by the Indian Health Service are federal employees, so harm caused by their care is a claim against the United States. Most tribally operated hospitals and clinics that run IHS programs under a self-determination contract, often called 638 facilities, are covered the same way. Our guide to how an IHS malpractice claim works walks through the general steps. This page covers what is different when the patient is a baby.
Two situations change the analysis, so tell us about them early:
- A transfer. Many newborns with serious problems are flown or driven to a private hospital, often in Albuquerque, for intensive care. Care at that hospital is usually a New Mexico state-law claim, with its own rules and deadline, separate from the federal claim.
- A contract provider. Some doctors working inside federal facilities are private contractors rather than federal employees. A claim about their care may also fall under state law instead of the FTCA.
How long do you have? Two years, and being a baby does not stop the clock
This is the rule that catches families. Under 28 U.S.C. 2401(b), a tort claim against the United States "shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues."
Notice what is missing. The subsection right above it, 2401(a), gives extra time to "any person under legal disability." Subsection (b), which governs injury claims, contains no such language. Federal courts read that difference to mean a child's age does not extend the two years.
Compare New Mexico law. If the same injury had happened at a private hospital, Section 41-5-13 of the Medical Malpractice Act would give a minor until one year after reaching the age of majority to file. Families who have heard that rule sometimes assume they have years. On a federal claim, they do not.
The federal appeals court that covers New Mexico has applied this rule to an infant. In Arvayo v. United States, 766 F.2d 1416 (10th Cir. 1985), a baby's meningitis was missed at a military hospital. The trial court ruled for the family. The Tenth Circuit reversed because the claim was filed too late, and the opinion closes by urging the family to seek relief from Congress. The court found the harm real and still could not let the case go forward.
When does the two years start?
Not always on the day of the birth. The Supreme Court held in United States v. Kubrick, 444 U.S. 111 (1979) that a claim accrues when the injured person "knows both the existence and the cause of his injury," not later, when they learn the care may have been malpractice. For a baby, the parents' knowledge usually counts. In practice the clock often starts when a doctor tells you what is wrong and links it to the delivery, for example that a brain injury came from a lack of oxygen during labor. It does not wait until a lawyer or a second doctor tells you the care was substandard.
When a claim accrued is a legal question with real room for argument. The safe course is to treat the two years as running from the earliest date it could have started.
Birth injuries that can point to a claim
Not every hard delivery or poor outcome is malpractice. Some injuries happen even with excellent care. These are the situations where it is worth having the records reviewed:
- Oxygen deprivation (hypoxic-ischemic encephalopathy, or HIE). Often tied to fetal distress on the heart monitor that was not acted on, or a delayed emergency C-section.
- Cerebral palsy diagnosed months or years later and linked to events at birth.
- Brachial plexus injury (Erb's palsy). Weakness or paralysis in an arm, often after shoulder dystocia and too much force during delivery.
- Skull fractures or bleeding in the brain after a vacuum or forceps delivery.
- Untreated infection, such as Group B strep passed to the baby when the mother was not tested or treated.
- Missed warning signs in the mother, such as preeclampsia or uncontrolled diabetes, that put the baby at risk.
Mothers are hurt in childbirth too. A severe hemorrhage, a missed infection, or a surgical injury during a C-section at an IHS facility is also an FTCA claim with the same two-year rule.
How the claim works, and why the dollar figure matters so much here
The claim starts with a written administrative claim to the Department of Health and Human Services, usually on Standard Form 95, stating a specific dollar amount. Under 28 U.S.C. 2675, the agency gets six months to respond. If it denies the claim or does not act, the case goes to federal court in New Mexico.
The dollar amount is harder in a birth injury case than in almost any other. Section 2675(b) says a lawsuit "shall not be instituted for any sum in excess of the amount of the claim presented to the federal agency," except for newly discovered evidence or intervening facts. A child with a lifelong injury may need therapy, equipment, care, and support for decades. A figure written before that is understood can cap the case for good. Building it usually takes a physician's review and a life care plan, and that work takes time inside the two years.
The claim should also cover everyone who has one. The child has a claim for their own injuries and future losses. Parents may have their own claims, such as for the medical expenses they pay while the child is a minor. Each should be stated, with its own amount.
Other federal rules that apply
- No jury. Under 28 U.S.C. 2402, a federal judge decides the case.
- No punitive damages and no interest before judgment, under 28 U.S.C. 2674. The United States is otherwise liable "in the same manner and to the same extent as a private individual under like circumstances," so New Mexico law on what a careful provider should have done still matters.
- A limit on attorney fees. 28 U.S.C. 2678 caps a lawyer's fee at 25 percent of a court judgment or a settlement reached after suit is filed, and 20 percent of a settlement reached at the administrative stage. Charging more is a federal crime. That protects families: more of any recovery stays with the child.
What a birth injury claim can recover
Recovery depends on the facts and on proof, and no one can promise a result. The categories usually include the child's medical care, therapy, equipment, and attendant care over a lifetime; changes to the home and vehicle; the child's lost ability to earn a living as an adult; pain and loss of enjoyment of life; and the parents' own medical expenses for the child while a minor.
What to do now
- Request the complete records for both mother and baby: prenatal visits, labor and delivery notes, the fetal heart monitor strips, nursing notes, and the newborn and NICU records, including from any hospital the baby was transferred to. Ask for the monitor strips by name. They are often the most important evidence and are not always included in a standard records release.
- Write down a timeline while it is fresh: when labor started, who was in the room, what you were told, and when.
- Keep a dated list of every diagnosis and what each doctor said caused it. Those dates may decide when the two years began.
- Do not wait for the hospital's own review or for the child to "grow into" a diagnosis. The federal clock runs regardless.
Where we come in
Keeler & Keeler has handled Federal Tort Claims Act cases arising from IHS and tribal facilities across the Four Corners for more than twenty years, from our office in Gallup a few blocks from Gallup Indian Medical Center. We review the records, consult qualified medical experts, and tell you plainly whether there is a case. Our IHS medical malpractice page covers these claims more broadly, and our guide to New Mexico filing deadlines compares the state and federal clocks.
If your baby was hurt at birth at an IHS or tribal hospital, call (505) 722-5608 for a free, confidential review. There is no fee unless we win; clients may remain responsible for case costs and expenses.
General information about federal and New Mexico law, not legal advice. When an FTCA claim accrues, and which law applies to a particular provider, are legal questions that depend on the facts.
