Sometimes, cerebral palsy just happens. It may be the result of an unavoidable infection. It may be the result of a genetic mutation. It may be the result of a fetal stroke. Sometimes, there’s nothing you can do to prevent it. Most cases of cerebral palsy aren’t preventable. Most are the result of complicated and unavoidable health issues.
Sometimes, however, the brain damage that causes cerebral palsy could have been prevented. Sometimes it’s the result of negligence or error on the part of the doctor or medical team supervising your pregnancy or delivery. In the case of acquired cerebral palsy, it may be the result of negligence or error of the doctor treating your child’s illness or the negligence of a third party that injured your child.
It may heartbreaking to think that your child could have been protected from cerebral palsy. There’s no way to undo that damage. However, you may be legally entitled to compensation for the medical expenses, pain and suffering, and other costs associated with your child’s injuries.
Cerebral Palsy Compensation Claims
Generally, claims for compensation turn on the negligence of a doctor, hospital, or other care provider. Depending on the nature of your claim, you may sue the doctor, the hospital, or both. In order to win compensation in court, you’ll need to prove 3 facts.
First, you’ll need to prove that you and your doctor had a doctor/patient relationship. That usually comes in the form of an agreement that your doctor will provide care during your pregnancy and/or delivery. Generally, a doctor/patient relationship is formed when the doctor treats you, which may involve administering regular checkups during pregnancy, treating any issues that arise during pregnancy, or delivering your baby. A doctor/patient relationship is not formed when you simply ask a doctor for advice and the doctor doesn’t treat you or take responsibility for your care in any way.
Second, you’ll need to show that your doctor was negligent in caring for you. Perhaps he/she didn’t perform a standard diagnostic test. Perhaps he/she missed obvious signs of problems. Perhaps he/she gave you the wrong drug or performed a c-section too late to prevent brain damage to the baby. Negligence is usually proven by testimony from expert witnesses who can attest to the industry’s standard of care and that your doctor failed to act in accordance with that standard.
Third, you’ll need to show that the doctor’s negligence caused your baby’s injuries. If your child’s cerebral palsy was caused by asphyxia and your doctor failed to perform a c-section when it was called for, that’s fairly strong evidence that the doctor’s actions caused your child’s injuries. If, on the other hand, the doctor was negligent in a way that didn’t hurt you or the baby, you do not have a claim for compensation. For example, if the doctor failed to check your blood pressure according to standard procedure but your child’s cerebral palsy is attributable to a genetic mutation, then you don’t have a claim.
The steps described above apply to claims against doctors specifically. The process for making a claim against a hospital is similar, but significantly more complicated. Hospitals are responsible for the actions of their employees, but doctors are often not employees of the hospital. So, you could sue a hospital if a nurse negligently caused your baby’s injuries but not necessarily if the fault lies with the doctor.
The legal process for claiming compensation for negligence leading to cerebral palsy is extremely complicated and best handled by an experienced local attorney. Every case is different and will need to be handled differently.
Who can bring a claim?
In general, only the person actually injured by the negligence of another can bring a suit. Obviously, that rule doesn’t work when the injured party is a baby. The parents or legal guardian of a child with cerebral palsy can bring a claim on the child’s behalf.
If you have cerebral palsy, you may be able to file suit yourself. Some states allow people injured as minors to bring a lawsuit within 2 years of their 18th birthday. A local attorney can determine if you’re eligible to file a claim.
What compensation can you win?
The compensation you win in a lawsuit is called “damages.” A cerebral palsy lawsuit may involve two types of damages: compensatory and punitive.
Compensatory damages are meant to compensate the victim for losses suffered due to the injury. These may be economic losses, such as medical expenses or the lost wages of a parent who must stay home to care for the child. They may also be non-economic losses, such as compensation for pain and suffering. Most lawsuits are limited to compensatory damages.
Punitive damages are imposed as a punishment to the party at fault. Punitive damages are available where the injury was caused by purposeful or reckless behavior. There must be something worse than ordinary negligence involved. For example, a doctor who failed to perform a c-section because he/she was under the influence of alcohol and couldn’t perform her job may be required to pay punitive damages.
When can you file a claim?
Let’s take a look at some of the actions that can give rise to a claim for compensation.
Negligence During Pregnancy
There are a number of issues and complications that can arise during pregnancy and cause cerebral palsy. Serious infections and pregnancy-related complications can cause fetal stroke or swelling or hemorrhage in the baby’s brain. They can cause your body or the baby’s body to release or produce toxins that damage the baby’s brain. If your blood pressure drops, it can deprive the baby’s brain of oxygen.
Your doctor should be monitoring your health and watching for signs and symptoms of complications that can affect the baby. Sometimes, the doctor fails to diagnose a condition that puts the baby at risk. Your doctor may miss the signs of a serious infection or fail to notice changes in the mother’s or baby’s health. In some cases, a doctor may fail to perform standard tests used to monitor the baby’s wellbeing.
If your doctor fails to diagnose a problem in time, you may be entitled to compensation for the harm caused.
Negligence During Delivery
Most cerebral palsy-related claims against doctors stem from the doctor’s actions or inactions during delivery. A slow or complicated delivery can put the baby at risk for cerebral palsy and doctors are responsible for avoiding those risks as much as possible. For example, doctors should order c-sections when necessary to protect the baby from asphyxia. Failure to order a c-section or unnecessary delay in ordering a c-section means the baby may be deprived of oxygen for longer than necessary, which can cause brain damage. Doctors must also carefully monitor the mother’s blood pressure and take quick action to protect the baby if it gets too high or too low. In some cases, doctors will induce labor using a drug called “Pitocin.” Giving the wrong dose of Pitocin to the mother can damage the baby’s brain.
There are many things that can go wrong during delivery, and doctors and nurses work hard to give you and your baby the best possible care. Unfortunately, even the best medical care providers sometimes make mistakes. When that mistake harms your baby, you’re entitled to compensation.
Injuries After Birth
In about 10% of cases, cerebral palsy is acquired due to an injury or illness after birth. These issues may also be attributable to negligence and may also entitle you to compensation. In cases where an illness caused cerebral palsy, you may have a negligence claim against the doctor that treated your child. In cases of cerebral palsy caused by injury, you would bring a claim against the person responsible for the injury rather than the doctor or hospital.
What to Do
If your child has cerebral palsy and you believe it may have been caused by the negligence of a medical care provider or other party, you should speak to an experienced local attorney immediately. Even if you’re not sure of the cause, it’s a good idea to reach out to an attorney. Your attorney will help you evaluate your case, help you decide if a lawsuit is the right choice for you, and can tell you more about what to expect from the legal process. It’s important to act quickly because the law limits the amount of time you have to file a claim. That limit is called a “statute of limitations.” It varies by state, but you typically need to file a claim within 2-4 years of the injury in question.
Doctors work hard to protect you and your child but sometimes they make mistakes. Unfortunately, those mistakes can mean a lifetime of difficulty for your child. It’s not easy to decide to pursue a claim. No lawsuit can repair the damage or heal your child’s cerebral palsy. However, if a medical care provider injured your child, the compensation from a lawsuit can help you provide your child with the medical care he/she needs. If a doctor is a fault, you and your child should not have to bear the cost.