Cerebral Palsy in Personal Injury Cases
Cerebral palsy is an umbrella term that covers a variety of brain and nervous system disorders that cause limitations to movement. These limitations can affect the person’s ability to speak clearly and sometimes results in the inability to walk. Some different types of cerebral palsy include spastic, hypotonic, dyskinetic, and ataxic. Spastic is the most common.
Some people with cerebral palsy also have learning impairments, while others are able to go to college and obtain advanced degrees despite their difficulties with movement.
According to the Centers for Disease Control and Prevention, cerebral palsy is the most common motor disorder among children. It is a permanent condition, but it does not get worse over time. It is usually caused by birth defects or by brain damage during pregnancy or at birth. Cerebral palsy as a result of brain damage is frequently believed to be caused by medical negligence.
During childbirth, if the baby experiences head trauma or a lack of oxygen to the brain for a substantial period of time (hypoxia), cerebral palsy can result. Other potential causes during the labor and delivery process are infection and premature birth.
Medical negligence related to a cerebral palsy diagnosis is usually the result of one of the following:
- Improper use of medical instruments such as forceps or vacuum extraction during birth
- Not treating a prolapsed umbilical cord. This can result in the cord wrapping around the baby’s neck, cutting off the brain’s oxygen supply
- Not treating infections during pregnancy; meningitis is one such infection
- Not checking the infant’s heart rate during labor and delivery
- Not monitoring the mother’s blood pressure or other conditions, such as toxemia
- Not treating the infant for conditions such as jaundice
- Allowing a baby that is too large to be delivered vaginally rather than through a cesarean section
Cerebral Palsy Medical Malpractice Lawsuits
If parents believe that their child’s cerebral palsy was the result of medical negligence, they can choose to file a medical malpractice lawsuit against the doctor and hospital involved. Since these types of cases can be particularly complex, there are lawyers who specialize in them.
In a medical malpractice lawsuit for cerebral palsy, a lot is at stake. Caring for such a person can be very expensive. According to the Centers for Disease Control and Prevention, it can cost ten times as much to raise a child with cerebral palsy as it costs to raise a child with no significant health issues. It is estimated that the lifetime cost usually exceeds $1 million. Wheelchairs may be necessary, for example, as well as special medical services like physical therapy and speech therapy.
A lawyer will try to obtain a settlement from the physician’s malpractice insurance that will provide for the child’s care through his or her life. These are often called “lifetime benefits.” For this reason, cerebral palsy malpractice cases are among the costliest for insurance companies.
Some of the monies that might be demanded in the settlement include:
- Medical costs, including long-term physical therapy and speech therapy
- Medical equipment costs, such as wheelchairs
- Special education
- Home care
- Lost wages on the part of the parents
- Pain and suffering (i.e., the stress caused by the injury)
Attorneys that specialize in these cases know how to examine the medical records, and they have experts available who can offer opinions as to whether the child’s cerebral palsy was indeed caused by medical negligence. Experts in a variety of fields might be necessary to prove causation – that negligence was the cause. These fields usually include obstetrics and neurology, among others. Economic, physical therapy, and care-planning experts might also be brought on board in order to calculate the cost of caring for the child long-term.
It is up to the injured party to prove that the child’s cerebral palsy would not have occurred if it weren’t for the negligence of one or more medical personnel. This implies that the doctors or nurses had some control over the outcome and could have prevented it. This is not always easy to prove.
Sometimes, the disorder is not detected until months or years after birth. Every state has its own statute of limitations, however. This means that a lawsuit must be filed within a certain period of time after the injury has occurred. If a child does not show symptoms of cerebral palsy for a year or two after birth, the window of opportunity might have passed, leaving parents with no recourse.
Some symptoms that might be an indication a child has cerebral palsy include seizures, poor coordination, poor muscle tone, and developmental delays related to movement.
Do Cerebral Palsy Medical Malpractice Cases Lead to Trial?
Since cerebral palsy medical malpractice cases often involve a demand for lifetime benefits, these cases sometimes go to trial. This is because the parties cannot agree to a settlement amount. Therefore, they need a judge or jury to make that decision for them after hearing both sides present their arguments.
It can take a great deal of time for a case to make it to trial, however. Settlement negotiations will be attempted several times. This is because court costs a lot more than out-of-court negotiations. Therefore, lawyers try to avoid going into a courtroom. Though, they will do so if they believe they can save a substantial amount of money by winning the case.
Prior to going to trial, a number of papers must be passed between the lawyers for the plaintiff (the party who filed the lawsuit) and the defendants (the medical personnel who have been accused of medical negligence.) These papers are called “pre-trial discovery.” During this process, the lawyers ask questions of the other party to find out what each side claims took place at the time of the injury. Depositions are also held in which the parties are interviewed by the opposing side’s attorneys.
This is also when experts are hired to evaluate the records and provide their opinions on the matter. If the case does end up in a courtroom, those experts would be hired to testify at the trial. The cost of expert witnesses can be very high, but when a lifetime of care is involved, they may be necessary to prove that medical negligence occurred and that the plaintiff is worthy of a high settlement amount.
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