Cerebral palsy (CP) is considered the most common motor disorder in babies and children, occurring in around 1.5 to 4 of each 1,000 births. In a lot of cases, the cause of CP is directly related to careless medical mistakes and negligence. When CP develops due to medical negligence, the responsible parties, such as the attending physician and/or medical staff, may be liable for damages.
Cerebral Palsy Compensation Claims Defined
Cerebral palsy compensation claims are claims filed by plaintiffs in order to seek compensation from the party who caused an injury. For example, in a birth injury case, the parents of a infant who developed CP due to medical negligence have the right to file a claim against the physician, hospital, and/or whoever else is responsible for the baby’s injuries.
In order to file a claim, however, it’s important to make sure that you actually have case. It’s often hard to determine if your case is valid, but if you feel your baby was negligently injured, it’s recommended that you consult with a cerebral palsy lawyer who can assist and let you know if your case is valid.
Who is Allowed to File a Cerebral Palsy Compensation Claim?
Generally, as mentioned earlier, the parents of the injured infant are the ones who can file a claim against the responsible party. Legal guardians of the baby can also file a claim. The reasoning behind this is because most states have a statute of limitations as to when a birth injury case has to be filed. This means that when the infant becomes an adult, they will probably not be able to file their own lawsuit because the state statute of limitations expired. Yet, there are few states that allow people who were injured as infants to file a lawsuit when they are older, usually within a few years from the time they turn 18.
However, it’s highly recommended that the parents or legal guardian file a compensation claim, because an infant with CP will need long-term treatment, which in many cases, includes medical, social, physical, and rehabilitative treatments. This can get quite costly. In fact, according to the Centers for Disease Control and Prevention (CDC), the average lifetime costs associated with CP is around $1 million. The average family generally cannot afford all of the costs associated with caring for a child with CP, which is why compensation claims exists. It allows parents or legal guardians to recover compensation to help with the long-term care of the infant.
How Do I Know if My Infant Has Cerebral Palsy Due to Medical Negligence?
Medical negligence arises, as aforementioned, when your healthcare provider fails to follow the proper medical procedures as defined by the mandated medical standard of care. The most common reasons of medical negligence and malpractice that leads to the development of CP includes:
- A delay in delivering the infant, causing oxygen deprivation
- Failure to diagnose or misdiagnosis of infections or other medical issues
- Failure to correctly use forceps or vacuum extraction during delivery
- Failure to identify umbilical cord problems, such as a prolapsed cord
- Failure to properly monitor fetal and/or maternal distress
What Does Cerebral Palsy Claims Compensation Cover?
Cerebral palsy claims compensation was created to help people with the overwhelming expenses of caring for a child with CP. It’s important to understand that CP is lifelong. There is currently no cure. Therefore, expenses involving CP are permanent. In general, getting compensation for your baby can help covers things such as:
- Medical care, including doctor’s visits and medication
- Loss of wages (if a parent has to leave work to care for the child full-time)
- Occupational therapy
- Physical therapy
- Assistive equipment and technology, such as wheelchairs and soundboards
- Home accomodations
- Special education costs
- Emotional pain and suffering
How Much Compensation Will I Get From a Cerebral Palsy Compensation Claim?
The amount of compensation will greatly vary according to each case, so it’s difficult to pinpoint an exact amount for each case. In some instances, the compensation may $500,000, yet in another case the compensation can be $5 million or more. Individual circumstances will be factored in when when determining compensation including how severe the medical negligence was, what type of CP the infant developed (some types of CP are more severe than others), the state you live in, and more.
In some states there is a non-economic damages cap on how much plaintiffs can receive in a birth injury case, meaning only a certain amount of compensation is allowed. For example, California places a $250,000 cap on non-economic damages, while Virginia currently has a $2.10 million cap on non-economic damages. Keep in mind, however, that these figures are only for non-economic damages. Economic damages are separate and may have their own cap, depending on the state.
Non-economic damages are defined as damages for pain and suffering, loss of enjoyment, stress and anxiety caused by the injury, and any other negative outcome because of the injury. Economic damages, on the other hand, are damages for medical expenses, lost income, and any other factors that resulted in economic loss because of the injury.
States such as Maine and New York are 2 of the 15 states with no caps at all in on medical malpractice cases. For example, in August 2012, a teen with cerebral palsy won a medical malpractice lawsuit against St. Vincent’s Medical Center, in Staten, Island New York. She was awarded non-economic damages of $17 million for past pain and suffering and an additional $60 million for future suffering and pain. In addition, she was awarded economic damages, bringing the total compensation amount to $103,075,617.82.
What if I Can’t Afford an Attorney When I File a Cerebral Palsy Compensation Claim?
Most experienced cerebral palsy lawyers offer a contingency-based fee. A contingency fee means that you pay nothing up-front. You only pay your attorney a percentage of your overall compensation once you win your case. The fee amounts will vary according to the lawyer you choose, but are generally anywhere between 20% to 40%.
What Do I Need to File a Cerebral Palsy Compensation Claim?
Before you file a cerebral palsy compensation claim, make sure the following pertains to your case:
A doctor/patient relationship must be in place in order to have a valid claim. A doctor/patient relationship means that there was an agreement that the doctor would care for your during your pregnancy, including before and after delivery. In most cases, the doctor who delivered your baby would be considered a doctor/patient relationship with you. Instances in which a doctor/patient relationship doesn’t occur is when, perhaps doctors gives you advice, yet they are not your regular doctors nor doctors you’ve ever been treated by. In this case, there was never a relationship established with these physicians, and therefore you cannot sue if you were given wrong advice.
The Doctor Must Have Been Negligent
There must be clear proof that the doctor acted in a negligent way that led your baby’s development of CP. As mentioned earlier, medical negligence may be failure to diagnose, failure to monitor fetal or maternal distress, inappropriate use of birthing tools, failing to schedule and carry out a C-section, and more. You attorney will let you know if there was indeed medical negligence in your case.
The Negligence Caused Cerebral Palsy
Once it’s been established that the doctor was negligent, there must be proof that the negligence is what caused your infant’s CP. Generally, once the negligence has been established, the proof of injury follows.
Additional Tips to Remember
Keep in mind that you must follow your state’s statute of limitations when filing a cerebral palsy compensation claim. Some states may allow two to five years after the injury to file, whereas other states may only allow six months or one year after the injury.
Additionally, regardless of what state you live in, there are complex rules that must be followed when filing for a cerebral palsy compensation claim. However, an experienced and knowledgeable birth injury attorney can help make the process smoother, so retaining legal representation is highly recommended before filing a claim.