Between 10 – 15% of children born with cerebral palsy are victims of medical negligence or malpractice. These children and their parents may be eligible for legal compensation.
Why Legal Compensation?
In their paper “Communication Gaffes: A Root Cause of Malpractice Claims,” Beth Huntington, BSN, MSN, JD, and Nettie Kuhn, RN, BSPA, CPHRM, note four key reasons people file medical lawsuits. Most plaintiffs want to do the following:
- Prevent another person or family from facing a similar incident
- Learn more about how and why the incident occurred
- Receive financial compensation to offset their medical costs and associated expenses
- Hold the physician or physicians involved accountable for the incident
The lure of financial compensation may be one of the strongest reasons for pursuing a medical malpractice case if your child has cerebral palsy.
The Centers for Disease Control and Prevention (CDC) indicate that medical costs for children with cerebral palsy and enrolled in Medicaid alone were 10 times higher than medical costs for children without cerebral palsy or intellectual disabilities, at about $16,700 in 2005 figures.
In totality, the CDC estimates lifetime care costs for an individual with cerebral palsy to be close to $1 million.
The compensation you receive for your child’s injuries could support medical treatments and in-home care. That compensation could also offset income lost because you or your partner was caring for your child, and compensation can be applied toward punitive damages. Additional compensation may be awarded for other matters as well.
Costs to parents of children with cerebral palsy, including:
- Home modifications
- Splints and orthotic devices
- Equipment for toilet use, bathing, and dressing
Therapies for children with cerebral palsy can also deplete household budgets. While school districts pay for some therapies, high quality occupational therapy, for example, can easily cost $850 a month. Therapy is beneficial for improving the fine motor skills of a child with cerebral palsy, as well as mastery of daily activities.
Should You File a Lawsuit?
The decision about whether to file a lawsuit is a personal one. Whether you will file a lawsuit may depend on your personal motivations and the strength of your case.
Cerebral palsy resulting from medical malpractice typically results from one of two events: delayed delivery or mistakes made after delivery.
A physician may be liable for mistakes made if the health care provider did not induce labor despite the mother, baby, or both showing signs of stress. When delivery is delayed, the baby may not receive enough oxygen, which can cause permanent damage to the brain, resulting in cerebral palsy. A ruptured uterus, a detached placenta, and umbilical cord problems can also compromise oxygen supply.
Common mistakes after delivery include exposing the infant to an infection, failing to treat an infection, or failing to treat a congenital disorder. Infections increase the levels of proteins called cytokines within the body. These proteins cause inflammation as they move around the baby’s blood and brain during gestation.
The CDC further attributes the following infections with connections to cerebral palsy:
- Chicken pox
- Bacterial infections of the placenta or fetal membranes
- Pelvic infections in the expectant mother
After birth, an infant may develop cerebral palsy after contracting meningitis or encephalitis.
If a doctor fails to treat a jaundiced baby, the infant may also develop cerebral palsy. Jaundice occurs when bilirubin, a type of chemical, accumulates in the baby’s body. If left untreated, the condition causes kernicterus, a disorder which is known to cause several problems, including cerebral palsy.
Failing to diagnose and treat an infant’s heart condition at birth could cause problems with blood flow to the brain, leading to cerebral palsy.
Doctors should predict whether a mother will experience complications during birth and diagnose and treat infections and other health conditions. If the doctor fails to do this, the mother is entitled to a lawsuit.
Individual Physician Negligence vs. Hospital Negligence
One of the first concerns a medical malpractice attorney and the client must decide is whether to sue a doctor for individual physician negligence or the hospital for hospital negligence.
Suing the hospital may be appropriate in the following circumstances:
- The hospital was negligent. For example, the hospital may be negligent if the facility did not adequately train or check the educational backgrounds of the staff involved in your case. The hospital may also be found negligent if its facility did not employ enough staff to adequately tend to your needs while you were in the hospital.
- The hospital is responsible for the physician’s conduct. For example, your attending health care practitioner may have acted negligently under direct orders from that person’s employer.
Doctors are usually considered contractors, not hospital employees. In other words, doctors typically act independently rather than under the hospital’s orders, and they can be held accountable for their actions. A doctor may be considered a hospital employee if the hospital dictates aspects of that professional’s working arrangement, such as working hours, fee schedule, and vacation time.
A hospital, rather than the doctor, may be sued, if its facility did not clearly disclose to you that the attending doctor wasn’t a hospital employee.
There are four legal requirements for a successful medical malpractice case. These requirements are as follows:
- The doctor must have a legal duty to provide for the patient’s treatment or care.
- The doctor breached this legal duty by failing to treat the patient according to medical standards.
- This breach caused the patient’s injuries.
- The legal system can compensate for damages resulting from the patient’s injury.
Unlike criminal proceedings, medical malpractice lawsuits don’t need to be proved beyond reasonable doubt. Instead, these suits are held to the “preponderance of evidence” standard. In other words, an impartial jury should find that it’s more likely than not that a case of medical malpractice occurred.
Finding a Qualified Attorney
It is recommended that people who feel their children’s cerebral palsy is a result of negligence seek the assistance of an attorney with experience in medical malpractice claims. Qualified medical malpractice attorneys understand the strategies that lawyers who defend physicians and hospitals use and how to combat them.
Ask family members, friends, colleagues and employers for recommendations or consult your local or state bar association’s lawyer referral service.
Filing a Claim
Your attorney will help you file your medical malpractice claim. You’ll typically file in a state trial court.
Federal district courts process claims involving the U.S government acting through clinics with national funding and Veteran’s Administration facilities. This scenario would occur if the claim invokes a federal issue and if the parties live in different states.
If your medical malpractice case settles in your favor through mediation, you will receive a financial settlement. This sum will help you pay for the expenses associated with caring for a child with cerebral palsy. If you receive a settlement, you do not need to go to court.
With a qualified attorney’s guidance, your family can receive compensation for the mistakes a doctor or hospital made in delivering or caring for your child.