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Cerebral palsy is a group of movement disorders that is caused by damage to the developing brain. In some cases, the cause of cerebral palsy is not known. In other situations, cerebral palsy is directly linked to medical malpractice.
If a doctor fails to provide adequate prenatal or postnatal care or does not properly care for a mother and baby during labor and delivery, the family may be able to file a lawsuit if their child develops cerebral palsy as a result. Through this type of claim, you can recover financial compensation for all of your losses, including medical bills, pain and suffering, reduced earning capacity, and more. Our New York birth injury lawyers can help you pursue a legal claim to get the money that you deserve for your losses.
At the Law Offices of Thomas L. Gallivan, we are committed to helping our clients recover maximum compensation for their losses. We handle all medical malpractice cases on a contingency fee basis, which means that you’ll never pay a fee unless we recover money for you. To learn more or to schedule a free consultation, reach out to our law firm today.
Is Cerebral Palsy Always Caused By Medical Malpractice?
Cerebral palsy (CP) is a group of conditions that affect movement and posture. It is caused by damage to the brain or irregular brain development. This damage often occurs before birth, but it can happen at birth or during the first weeks and months of a baby’s life.
Cerebral palsy can affect the whole body or just one or two limbs or a side of the body. Broadly, people with CP tend to have difficulty with movement and coordination, development, speech, and eating. The symptoms can vary by person and the level of damage, but may include:
- Spasticity, or stiff muscles and exaggerated reflexes
- Rigidity, or stiff muscles with regular reflexes
- Variations in muscle tone
- Ataxia, or lack of balance and muscle coordination
- Tremors, or jerky movements that cannot be controlled
- Slow, writhing movements
- Difficulty with gross motor skills, such as walking
- Trouble with fine motor skills, such as grasping a fork
- Delays in speech development
- Difficulty with drooling, including trouble with swallowing
- Learning disabilities
- Intellectual disabilities
- Seizures
- Vision and/or hearing disabilities
- Mental health conditions
- Bladder and bowel issues
According to the March of Dimes, cerebral palsy is relatively rare. It affects about 1 in 300 children, or less than 1% of all children in the United States.
The cause of cerebral palsy isn’t always known. It can be caused by a range of issues, such as:
- Gene changes that affect brain development or cause genetic conditions
- Strokes, which interrupt the blood supply to a fetus’s developing brain
- Certain maternal infections
- Bleeding in the brain
- Infant infections that cause swelling in or around the brain
- Traumatic head injuries
- Lack of oxygen to the brain during labor and delivery
In some cases, cerebral palsy is caused by medical malpractice. For example, if an obstetrician does provide adequate prenatal care and fails to diagnose a maternal infection (such as rubella), then they could be held liable if a baby develops cerebral palsy. If a baby suffers a birth injury during labor and delivery because of inadequate medical care (such as failure to intervene), then that may also be a form of medical malpractice.
It isn’t always easy to determine the cause of a baby’s cerebral palsy diagnosis. This is particularly true when you are dealing with the stress and uncertainty of a diagnosis as a new parent. If your baby has been diagnosed with cerebral palsy, our law firm can evaluate your case and help you determine if you might have a claim against the at-fault doctor, hospital, or other medical provider.
Filing a Lawsuit for a Cerebral Palsy Diagnosis in New York
Medical malpractice cases are a type of personal injury claim. Like personal injury cases, they are usually based on a theory of negligence or carelessness. However, medical malpractice cases use a different standard.
To win a medical malpractice case, you will have to show that a doctor or other medical professional violated the standard of care for their profession. The injury victim (plaintiff) will have the burden of proof of showing:
- That they were under the care of a doctor or other medical professional;
- That the medical provider failed to act as a professional in their specialty should act in advising, diagnosing, or treating them (which is known as the standard of care); and
- As a result of this failure, they were injured, became ill, or their condition or injury worsened.
In most medical malpractice claims, the main point of contention is usually whether the healthcare professional met the applicable standard of care. This legal term means the skill, knowledge, and procedures normally used and accepted in the medical community for that profession. In a birth injury case, this will mean proving that your doctor did not act in the way that a reasonable obstetrician would act in a similar situation.
Through their insurance carrier, the medical professional will usually hire a medical expert to provide their opinion that they met the standard of care for the profession. The plaintiff will hire their own expert to testify or write a report opining that the treating physician made an error that caused the birth injury.
For example, consider a situation where a mother was in prolonged labor. The obstetrician did not adequately monitor the fetus for signs of distress, such as an increased heart rate or blood pressure. The doctor also did not intervene early enough with a cesarean section (C-section). The baby was deprived of oxygen and ultimately was diagnosed with cerebral palsy when they failed to hit certain developmental milestones.
In this situation, the plaintiff may hire an obstetrician who will review medical records related to both prenatal care and labor and delivery. This doctor will then offer their opinion on what should have been done based on the standard of care for obstetricians, such as using a fetal heart monitor to track the baby’s heart rate and response to contractions. This will then be the basis of a cerebral palsy lawsuit.
Of course, doctors and their malpractice insurers often mount a vigorous defense against these types of claims. They may introduce their own evidence to try to claim that there was another cause of a child’s cerebral palsy. Alternatively, they may offer a lowball settlement offer to try to settle the case for as little money as possible.
This settlement offer may seem like a lot of money. You might even be tempted to accept the offer so that you can focus on your child. However, it is important to understand that insurance companies act in their own best interest, not yours.
When you accept a settlement, you will be required to give up your right to file a claim for the same incident in the future. This means that if you discover that your child’s cerebral palsy is worse than doctors initially believed or if they need more extensive treatment, you won’t be able to go back and file a lawsuit against the medical professional. You should never accept a settlement, sign paperwork, or give a statement to the insurance company before consulting with a New York birth injury attorney.
Compensation in a Cerebral Palsy Lawsuit
In birth injury cases (such as those involving cerebral palsy), the child’s parents typically bring the lawsuit on behalf of the child. Through this type of personal injury claim, the parents may be able to recover financial compensation for their child and for themselves. Typically, these lawsuits result in compensation for two types of losses: economic and non-economic damages.
Both economic and non-economic damages are considered compensatory damages. They pay for both direct and indirect losses, such as:
- Medical expenses
- Future medical treatment
- Lost earning potential for the child
- Lost wages for parents
- Pain and suffering
- Emotional distress
- Loss of enjoyment of life
- Disability
In more unusual cases, punitive damages may be awarded. Punitive damages may be available when the at-fault medical professional acted intentionally or recklessly (such as showing up to a delivery under the influence of alcohol and/or drugs). Most medical malpractice cases are based on a failure to meet the standard of care, so punitive damages won’t be available in the majority of cases.
Studies show that the best way to get full compensation for your losses in a personal injury case is by hiring an experienced New York medical malpractice lawyer. Insurance companies will rarely pay out the full value of your case without the potential pressure of litigation. Our law firm will work hard to help you get maximum compensation for your losses.
Help for Children with Cerebral Palsy and Their Families
Cerebral palsy is a lifelong condition that can significantly impair a child’s functioning and quality of life. If your child’s CP was caused by negligent medical care, you might be able to file a lawsuit against the at-fault medical professional. Our skilled New York medical malpractice lawyers can help.
At the Law Offices of Thomas L. Gallivan, we have decades of combined experience advocating for families whose lives have been affected by birth injuries. We work hard to help our clients get maximum compensation for their losses so that they can provide their child with both treatment and financial stability. We offer free consultations and never charge a fee unless we recover money for you. To learn more or to schedule a free initial consultation with a New York birth injury attorney, call us at 914-220-1086 or fill out our online contact form.
Related: Cerebral Palsy Settlements
