Frequently Asked Questions
If you believe medical malpractice may have caused your child’s cerebral palsy, then you may consider consulting a lawyer. A medical malpractice lawsuit may be the only way to get the financial compensation you need. However, hiring a lawyer and collecting evidence can get complicated. View these FAQs for answers to some of your initial questions.
How do I know what caused my child’s cerebral palsy?
Your medical team may not admit sole responsibility for a birth injury. The burden of proof may be on you. Cerebral palsy can be caused by a number of factors, some of which can never be known. If it happens during birth, it’s likely due to deprivation of oxygen during delivery. Doctors will likely look at the child’s brain via an MRI or CT to determine how much damage was caused and where, which may or may not reveal what happened.
A cerebral palsy lawyer who takes your case will have unbiased medical experts examine your child. However, it should be noted that thorough investigations may still not provide a definitive reason that a child has cerebral palsy.
Do I need an attorney to bring a lawsuit?
No, it is not strictly necessary to hire an attorney. However, a lawyer will have the experience to save you hundreds of hours of work when it comes to your claim. They will also have an easier time obtaining medical experts who are willing to testify on your behalf. These testimonies can be very expensive, and difficult to find. A lawyer may pay these experts out of their own pockets, which could be the only possible way to finance the case. Also, the chances that you’ll overlook important forms, steps and details are high. If you don’t have the resources to devote to following every procedure, then you may need a lawyer.
Is there a time limit to file?
Yes, with the exact time limit determined by the state in which the child was delivered.
This period ranges anywhere from one year to five years, so it’s important to speak to an attorney as early as possible. In some states, the time limit is determined by when the negligence occurs and in others it’s defined as when the child shows signs of injury.
Regardless of the time limit or state you live in, you may still want to speak with an attorney if you have new evidence to prove a doctor’s fault. Those who preside over medical malpractice lawsuits place a great deal of importance on rules and time limits. If you have any suspicion at all, it’s best to seek legal help.
What will I be awarded should I win?
The amount you receive will depend on the severity of your child’s case, and the extent to which the doctor was responsible. The costs of cerebral palsy extend past doctor’s bills, so the courts are required to take that under consideration. Winning a case can cover medical expenses, including in-home care, rehabilitation, and supplies to improve the child’s quality of life. It will also include financial needs such as education costs, counseling, and pain and suffering.
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In some states, you may also be entitled to punitive damages. These constitute a large fee that medical professionals are required to pay in addition to the above costs. These fees are charged to the defendant and given to the plaintiff as a means of discouraging risky behavior in the hospitals.
Will expert testimony strengthen my case?
Yes, with extremely few exceptions. There are situations that are self-explanatory to the judge, but these scenarios are rare.
Expert testimony can be skipped if you can prove the doctor’s negligence was the only thing that may have caused the situation. An expert is helpful, however, to explain technical details to a jury with no medical background.
Your side will need to show that the treatment your child received fell outside the standard of care, and that the nurses and doctors had sole control over events prior to the injury occurring. This can be difficult to prove to people who weren’t actually there to witness the birth.
A judge may dismiss the case before it even starts without expert documentation of the doctor’s mistake. It may be straightforward to prove that the doctor was incompetent, but not that their incompetence is what caused the cerebral palsy.
The judge may or may not agree with the expert, but he or she is required to take the information seriously before making a final decision.
How long does a case take?
Cases take as long as they need to, which in the case of cerebral palsy may be up to a year or more. When you hire a lawyer, the first thing they’ll likely try to do is negotiate a settlement, which can take several months. When it comes to birth injuries, there are a lot of exhaustive details to go over. And each piece of evidence may confuse the story so much that the truth becomes lost.
Lawyers will need to track down potential witnesses, conduct interviews, and absorb the medical science of your particular case. You should be prepared to commit yourself to this cause for quite some time.
Are cases ever settled out of court?
Yes, the vast majority of cases are settled with the help of a lawyer. It saves both parties from a lengthy trial that may only make the legal profession richer. However, parents will want to approach accepting the settlement with caution. No matter how much money the hospital or organization appears to be offering, the medical costs could be much more after a lifetime of expenses mount up.
People generally settle because they may not have enough evidence on their side to fight the courts, or because the amount is commensurate with what they expected to get from a trial. No matter how obvious a doctor’s error may seem to the parents, the jury or judge may not see things the same way.
Only 10% of cases will actually make it to trial for this very reason. Your lawyer should steer you toward the best course of action when it comes to achieving reparations for your child.
How much will it cost to pursue legal action?
Like any product or service you buy, it will depend on the type of lawyer you choose. It may take some time to find someone who is both experienced and who can work within your budget. It may also come down to your negotiation skills as well, which means you should contact several lawyers and rates to find the best fit for you. Many lawyers charge contingency fees, which means they will only be paid should you win. They’ll take a portion of the settlement, typically between 33 – 40% of the total.
In terms of the upfront litigation fees, these may also be covered by the lawyer, and then deducted from the settlement after it is awarded. Once the fees come out of the settlement, the lawyer is then awarded a percentage. So if the settlement is $500,000, the court and medical testimony fees cost $15,000, and the contingency fees are 40%, then the lawyer would receive 40% of $485,000 to cover their work. If you live in certain states, like Tennessee or Connecticut, there are laws that limit the percentage lawyers can take from settlements in an effort to keep healthcare costs down.
Medical malpractice can be difficult to win, so if you have a borderline case, you may be asked to pay more upfront. For example, if you have a case that shows promise but still feels risky for the attorney, you may be asked to pay for expert medical witnesses on your own.
How does a case evaluation process work?
Most lawyers will give you a free consultation, so there’s really nothing to lose by contacting someone if you think you have a legitimate claim. Because presenting proof can be tricky in medical malpractice, the lawyer will approach your case with caution — especially if they only work on contingency fees. You will be asked a variety of questions about your medical history, pregnancy, and lifestyle, as well as the details of your child’s condition and the doctor’s treatment.
Any evidence that you may have gathered will be reviewed as well, but an attorney will not simply take your word for it. Should he or she express interest in your case, he or she will likely then start their own investigation. A lawyer may find out more about your hospital, doctor, or mid-wife, and attempt to gather more information. They may consult with more than one medical professional before deciding to move forward.
How do I file a claim for medical negligence?
The exact specifics will be dependent on your state. In general, you’ll need to have substantial proof before you file. You will have to show that you had a professional relationship with the doctor, and that he or she made mistakes that could be considered negligent. Most of the time, you will need expert testimony to do so. When it comes to the practical matters of filling out forms and presenting evidence, it is highly recommended you have a lawyer to complete this process.
What kind of lawyer should I look for?
Birth injury cases are a different breed than general medical malpractice, so look for lawyers who understand how disabilities are caused and the repercussions of them. Finding someone who has dealt specifically with cerebral palsy cases can give you your best chance. Before you meet with the lawyer, you’ll want to come with questions that give you a real idea of what you can expect from their services.
The quality of the lawyer’s college education or general reputation is typically not as important as experience when it comes to a birth injury as complicated as cerebral palsy.
You’ll want to ask how many cases they’ve worked on, their win-to-loss ratio, and the average amount they either settled for or won from due process. Their track record will be an indicator of how your case will be evaluated and approached. Also, look for people you genuinely get along with, and those who place customer service as one of their top priorities. You’ll want a good working relationship with them, especially considering the length of time you’ll be dealing with them.
Will my case win?
Due to the burden of proof, medical malpractice suits have low rates of success. For this reason, it may be difficult to get the help you’re looking for without a substantial amount of evidence. The standard of care is viewed differently, depending on the angle one is approaching from. It can make it very difficult for lawyers to prove beyond a reasonable doubt that the doctor made a specific mistake that caused the cerebral palsy.
Is pursuing legal help worth the stress on myself and my family?
The lifetime cost of raising a child with severe cerebral palsy can total up to a million dollars. If you truly believe the disability was caused by a doctor’s mistake and you feel you can prove it, then it will almost certainly be worth it. No matter what, you’re going to go through a good deal of stress to adjust to the situation. Taking action may actually make you feel more in control, and winning can certainly put you and your family in a better financial position when caring for your child.
What are the average case winnings?
The statistics on this will not give you an accurate representation of your particular case. Mild forms of cerebral palsy will have far fewer expenses, so you can expect an award that matches the severity of the mistake and your child’s disability. If you live in a state that allows punitive damages, your winnings will be significantly higher than if the direct expenses are only being taken into consideration.
Can I use the winnings for anything?
These winnings are meant to cover a variety of expenses, so you won’t be expected to provide receipts for everything you purchase. However, they are meant to go towards medical and emotional care for your child, as opposed to other major bills. If you do receive punitive damages though, these are additional costs paid out by the employer to you and can be used for saving or for other investments.
If you have more specific questions regarding your delivery, speak with a lawyer for more information. Consulting with several will give you an idea of the general consensus of your case, so you can decide whether to take it to the next level.