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When Is Cerebral Palsy Evidence of Medical Malpractice?

Written by Berkowitz

Doctor with baby

Because cerebral palsy originates before, during, or shortly after birth, the mere presence of cerebral palsy in your child should raise suspicions of medical malpractice. Further investigations into exactly which actions were taken (or omitted) during medical care around the time of birth is often enough to establish a medical malpractice case.

What Is Cerebral Palsy?

Cerebral palsy is a term that refers to several different neurological disorders that arise from brain damage. Symptoms include impaired muscle coordination, movement, and posture. Young children who suffer brain injury (in a car accident, for example) may also develop cerebral palsy without medical malpractice playing a role. Sadly, up to 10,000 children develop cerebral palsy every year.

Common Medical Errors That Could Amount to Medical Malpractice

During pregnancy, the mother and her baby function as a single interconnected organism, which means that problems with the mother’s health are likely to affect the baby as well. A wide variety of medical errors can cause cerebral palsy (and other problems) in children. Approximately 20 percent of all cerebral palsy cases that are caused by medical errors occur during the birthing process (in the delivery room).

The following is a description of some of the most common medical errors doctors sometimes make that could increase the risk of cerebral palsy in your child.

Errors During Delivery

  • Improper use of forceps during delivery;
  • Failure to perform a C-section when one is necessary;
  • Failure to adequately monitor the mother or the baby when anesthesia is used during a cesarean section (C-section);
  • Failure to monitor symptoms of fetal distress, especially during the birthing process. (Failing to properly respond to breathing difficulties is particularly likely to result in cerebral palsy);
  • Failure to provide appropriate assistance when the mother is experiencing a difficult labor;
  • Failure to promptly recognize and respond to problems with the umbilical cord (In a worst-case scenario, this condition could literally strangle your child);
  • Malfunctioning medical equipment. In this case, the defendant could be the hospital, the manufacturer of the equipment, or some other party (someone responsible for maintenance of the equipment, for example); and
  • Misuse of medical equipment, in many cases due to improper training.

Errors During Pregnancy and Shortly after Birth

  • Failure to address a uterine complication;
  • Failure to detect or aggressively treat a maternal infection;
  • Failure to perform lab tests for common illnesses, such as herpes and toxoplasmosis;
  • Failure to respond promptly and aggressively with testing and treatment if your child develops a fever after birth;
  • Failure to refer you to a specialist when circumstances indicate that this is the appropriate course of action;
  • The use of medication, or a combination of medications, that is dangerous to either you or your baby;
  • Improper medication dosage (too much or too little);
  • Your prescription was improperly filled by a pharmacy (perhaps due to a pharmacist’s error, or perhaps due to the doctor’s illegible handwriting or typographical error);
  • An adverse reaction to a combination of medications taken by the mother during pregnancy – Sometimes this is caused by failing to take an adequate medical history (“Are you taking any other medications at this time?”), and sometimes it is caused by the failure of your healthcare provider to properly consider adverse effects of the interactions between two or more medications;
  • Failure to administer antibiotics when appropriate;
  • Failure to order lab testing when appropriate;
  • Misinterpretation of lab testing results;
  • Failure to listen to and properly consider symptoms or other medical concerns expressed by the mother;
  • Failure to inform the mother of the risks of certain courses of treatment, and alternative treatments that may be available (such a failure to disclose may not directly cause cerebral palsy, but it can result in in a valid medical malpractice claim nevertheless); and
  • Many other possible medical errors too numerous to list here.

Delayed Symptoms and the Statute of Limitations

The symptoms of cerebral palsy are often not apparent until months or even years after the child is born. Meanwhile, Connecticut, like other states, applies a statute of limitations – a deadline for filing a lawsuit. If you miss the deadline, your claim’s value will drop to zero immediately. Normally, the statute of limitations deadline is two years after the date of the injury – a point at which cerebral palsy symptoms may not have yet become obvious.

The beginning of this two year ticking clock can be delayed to the date that you actually discovered (or should have discovered) your child’s cerebral palsy. Nevertheless, there is still a hard deadline to file a lawsuit – no more than three years after the injury took place, no matter when you discovered that your child had developed cerebral palsy.

Unlike some states, Connecticut applies no special statute of limitations extension if the victim is a minor (under 18 years old) when the injury occurred. If the symptoms of cerebral palsy are delayed for years, this could leave you with a very short window between the time you discover your child’s condition and the statute of limitations deadline for filing a lawsuit.

The Investigation Phase: What to Expect

About 10 percent of all cerebral palsy cases are caused by medical malpractice. Moreover, it is unlikely that you possess the resources to examine all of the possible medical errors that could have caused your baby’s cerebral palsy. The reality is that medical malpractice cases of any sort tend to be scientifically complex, requiring the use of expert medical witnesses to win fair compensation.

Berkowitz Hanna has the resources to conduct a thorough investigation and to recruit the expert medical witnesses that will probably be necessary to prove medical malpractice. Our lawyers have been investigating medical malpractice claims, including cerebral palsy claims, for a long time now. All told, the lawyers at Berkowitz Hanna enjoy decades of combined experience handling medical malpractice claims.

Filing a Lawsuit as a Tactical Measure

In many cases, the evidence necessary to complete the investigation is in the possession of the defendant. In this case, it may be necessary to file a lawsuit in order to seek a court order to force the defendant to hand over the evidence (medical records of the delivery, for example). Filing a lawsuit does not prevent you from settling the case before trial.

How Much Compensation Should You Ask For?

Cerebral palsy is a serious and lifelong condition. Although, with the right medical treatments, your child could still live a relatively normal and active life. If your child’s condition was caused by medical negligence, however, you can and should demand a high amount of compensation. Expenses and losses that you might include in your claim are listed below:

  • Long-term recurring medical expenses (which can be tricky to calculate if they arise years or even decades later);
  • Long-term costs of medication;
  • Transportation costs to and from medical facilities for diagnosis and treatment;
  • Expenses for special education, which may have to take place at expensive private schools;
  • Counseling expenses;
  • Physical therapy;
  • Occupational therapy;
  • Costs for medical equipment such as walkers or wheelchairs;
  • Expenses for certain special needs accommodations such as ramps and specialized rails;
  • Lost potential earnings, if the child’s condition is serious enough to inhibit his ability to work in the future; and
  • Pain and suffering, mental anguish, and other psychological damages (which could amount to a lot more than most people imagine).

Not all of the foregoing expenses apply to every case, but one matter is critical to remember: You will need to demand 100 percent of the compensation you will ever need because once you reach a private settlement or a courtroom verdict, it will be impossible to demand more money in the future.

Your Case Will Probably Be Settled Out of Court

Doctors and hospitals don’t like to admit the mistakes they make, and the publicity of a trial can be damaging to their practices. If you hire a law firm with a fearsome reputation for winning at trial (such as Berkowitz Hanna), the likelihood is that your case will be settled privately, out of court.

You won’t need to negotiate. We can do that for you, although only you, as the child’s parent or guardian, have the authority to accept any settlement offer. It may be necessary to file a lawsuit to gain leverage in settlement negotiations, but it is still more than likely that a settlement will be reached before an actual trial takes place.

The Settlement Agreement

A formal settlement agreement will be drafted, and once you sign it, the case is over unless the defendant refuses to pay the settlement. In that case, you can sue to enforce the agreement the way you would sue to enforce any other type of contract. Most cerebral palsy lawsuits are settled out of court. But if the case does end up in court, you will need a law firm with a strong track record of success in court in order to prevail.

Special Case: Wrongful Death Lawsuits

Although cerebral palsy is not in itself a fatal condition, in a few cases, children do die from complications caused by cerebral palsy. In such cases, it is usually difficult to trace the chain of causation to medical malpractice, unless the complication itself causes the death of your child.

In such unusual cases, it is possible for the executor of the child’s probate estate (chosen by the probate court, but typically a parent) to file a lawsuit on the child’s behalf. Damages in such lawsuits can be extensive.

Contact Berkowitz Hanna Immediately If You Think You Might Have a Medical Malpractice Claim Claim

A case evaluation by a lawyer who specializes in medical malpractice claims is a way for you to receive an objective, third-party assessment of the merits of your claim. At Berkowitz Hanna, we offer free initial consultations, and you will never owe us a dime, ever, unless we win your claim and your money actually arrives.

With our decades of combined experience in handling medical malpractice cases, both in court and in negotiations, we can evaluate your chances of winning and also help you determine how much your claim is worth.

Call Berkowitz Hanna today or contact us online to schedule a consultation with us. We serve clients from throughout the state of Connecticut from our offices in Stamford, Bridgeport, Danbury, and Shelton.