Did you know that about 10% of every child born with cerebral palsy is due to medical malpractice? Although 10% might not sound like a lot, if you break it down, that’s about one in every ten children with cerebral palsy because a doctor or someone on the medical staff team made a mistake. That is a shockingly high statistic, especially during a time when we claim to have so much advancement in medicine and in technology.
If your child has cerebral palsy and if you think your child’s disability is due to medical malpractice, it’s important to understand how a cerebral palsy lawsuit works and what your rights are.
How is Cerebral Palsy Caused?
Cerebral palsy is a disorder caused by a brain injury, usually before or during delivery or shortly after birth. It’s marked my disruption of normal signals from the brain to the nervous system, and depending on the severity of the injury, can result in crippling or paralyzing children from the use of certain muscles or muscular functions.
Sometimes the cause stems from abnormally long or difficult labor (as the brain is compressed in the birth canal for longer than it should be), and sometimes it’s because something happened to the umbilical cord, cutting off oxygen to the baby and thus creating a brain injury from oxygen deprivation.
Both external pressure to the brain for too long and oxygen deprivation are things that attack an otherwise normal brain. Whether internally or externally caused, the brain reacts to the injury, causing cerebral palsy –paralysis of some part of the brain- damaging the child’s chances at a normal life.
The length of time that the child endured the injury determines how severe the disability is. If the child stopped breathing for only a few mere seconds, his or her disability would be far less severe than a child who stopped breathing for long minutes.
Could These Injuries Have Been Prevented?
Physicians should be able to diagnose whether the mother has infections, is at risk for infections, or will have complications during childbirth. For example, celphalo-pelvic disproportion (CPD) occurs when an infant is proportionately too big for the mother’s cervix, causing a difficult and longer than average labor.
Physicians should be able to asses the baby’s size before birth. If the infant is considered too large to be delivered normally, a C-section is usually scheduled.
In other instances, an observant doctor should be able to detect and diagnose an umbilical cord prolapse, which happens when the umbilical cord comes out before the infant does.
If the doctor failed to diagnose and treat any of the aforementioned conditions, or if the doctor diagnosed and failed to plan around these conditions,they may be liable for injuries and in turn responsible for malpractice.
Additionally, if an infant shows signs of distress, whether before, during, or shortly after birth, the doctor is responsible for making a quick decision that could save the mother and child from additional complications, complications that not only involve that moment, but the rest of their lives.
Could the Doctor Have Prevented Cerebral Palsy Once Diagnosed?
If the baby comes out and has clearly experienced oxygen deprivation, the doctor can still prevent cerebral palsy, but time is extremely crucial. Every second that passes without the infant having oxygen heightens the risk. One way to help, although still in its experimental form, is hyperbaric oxygen therapy.
This type of therapy treatment puts the infant in a decompressed chamber full of 100% oxygen, flooding the tissue full of the healing properties of oxygen. It also slows down the trauma that the brain is experiencing, pausing and overriding the emergency response of the brain and thus lessening or completely eliminating the child’s case of cerebral palsy.
If your baby clearly has had oxygen deprivation and your doctor chooses not to use hyperbaric oxygen therapy (if it is available), the ensuing condition of cerebral palsy is the doctor’s fault.
How Will a Cerebral Palsy Lawsuit Help?
Caring for a child with cerebral palsy is expensive, and depending on the severity of the disorder, the costs could reach $1 million for a lifetime of medical care, therapy, home care, rehabilitation, and more. When you file a cerebral palsy lawsuit, you are holding the liable party responsible for their negligent actions.
In most cases, when a plaintiff wins a cerebral palsy lawsuit against the party responsible for their baby’s injuries, such as the physician or a member of the medical staff, they can expect to be compensated for the medical treatments associated with caring for someone with cerebral palsy. In addition, the plaintiff may also win compensation for in-home care, lost wages, punitive damages, pain, suffering, mental anguish, and more.
Keep in mind that you shouldn’t expect a physician or anyone else that contributed to your child’s injuries to simply admit negligence. In fact, in most instances, physicians and others will retain defense attorneys and dispute any claims of medical negligence. Yet, you shouldn’t be stuck with mounting medical bills that occurred due to another party’s careless actions.
An experienced cerebral palsy attorney understands the tactics that defense lawyers typically use when trying to alleviate or completely eliminate their client’s responsibility and in turn will research, interview witnesses, and gather pertinent documents in order to prove your case.
When Should I File a Cerebral Palsy Lawsuit?
As with most other types of lawsuits, cerebral palsy lawsuits have a statute of limitations, meaning you only have a certain amount of time to file from the time the injury occurred. In other words, you have a certain window of time in which you can file a cerebral palsy lawsuit and if it’s not done within that time period, you’ll no longer be able to file.
Statute of limitations vary depending on the state you live in. However, the statute of limitations in cases involving minors may vary slightly from the normal time allotted.
For example, some states allow minors to reach their 18th birthday and then file a lawsuit on their own while other states allow parents to file a lawsuit anytime before the child’s 18th birthday. Other states may mandate that the lawsuit must be filed within two or three years from the time of the injury or from the time the injury was discovered.
What Happens Once I File a Cerebral Palsy Lawsuit?
Once you file your lawsuit, your attorney starts building your case by, as mentioned earlier, gathering all of the pertinent documents and evidence needed in order to help you win your case. This could mean that several witnesses may be interviewed and that your baby may need to have medical evaluations from different doctors in order to get additional medical opinions.
Make sure to keep track of all your baby’s medical appointments and medical documentation. The more information you can provide to your attorney, the better.
Keep in mind that a cerebral palsy lawsuit isn’t typically settled quickly. If a settlement happens instead of going to trial, it may take months, sometimes years, before a settlement can be agreed upon. Trials typically take even longer. Cerebral palsy lawsuits are intricate, but once the ordeal is over, you are usually compensated for the medical expenses paid out while awaiting the outcome of your case.
It’s also important to know the steps your attorney will take during the lawsuit process. It will you to better understand exactly what phase your case is in and why it seems to be taking a long time.
The first step, after gathering your lawsuit information, is to send what’s known as a complaint, to the defendant. The complaint is an official document that describes, in detail, the reason for the lawsuit and why the defendant is being sued. When the complaint is delivered to the defendant, there is typically an allotted of time of 30 days to answer it, although the time will vary according to what state the complaint was filed in.
Once the complaint is delivered, the second step of a cerebral palsy lawsuit involves a pre-trial litigation phase. During the pre-trial litigation phase, your attorney will discuss the details of the case with the defendant’s lawyer, and both parties will decide if the case can be settled out of court or if it will continue to trial.
This is typically the longest part of the case, and may takes many months, even years before a decision is reached. Pre-trial litigation is commonly referred to as the “discovery” phase.
The final step involves a settlement or a trial. Most cerebral palsy lawsuits are settled out of court. In fact, in some instances, the defendants will decide to settle right before a trial begins. If your case is settled, you can expect to receive compensation within a few months, but the time may vary according to your state as well as the details of the settlement.
If your case goes to trial, it will take even longer to receive compensation, and there is a chance that the other party will appeal the decision if you win your lawsuit. You attorney will go over the details should your case go to trial.