Anatomy of a Cerebral palsy Lawsuit
Litigating a Cerebral Palsy lawsuit is no easy matter. Cerebral Palsy lawsuits have become controversial with some advocating that Cerebral Palsy is caused almost exclusively by medical error and others advocating that it is a kind of mishap of nature or the fault of the mother. Doctors and insurance companies have pushed for tighter and tighter regulations to limit Cerebral Palsy lawsuits.
That said, it is very much possible to win a Cerebral Palsy lawsuit. The key is to work hard to compile convincing evidence that the Cerebral Palsy was caused exclusively by the action of a health care worker. To do this, an extensive investigation will need to be completed.
Medical records, including the fetal and neonatal strip, labor records, delivery records, imaging scans, neonatal records and more will need to be reviewed by a variety of experts who will be hired to write reports highlighting the evidence leading to the conclusion that the Cerebral Palsy was caused by a deviation of the accepted standard of care (negligence). Many of these medical experts will eventually be hired to testify in court. Below are some aspects related to a Cerebral Palsy lawsuit and settlement.
What Must Be Proven in a Cerebral Palsy Lawsuit
A medical malpractice personal injury lawsuit alleges that a doctor, hospital, or other healthcare administrator was negligent or careless in failing to diagnose the disease or disorder or failing to provide treatment. The standard of negligence or carelessness that must be proven is based on the doctor’s failure to provide treatment consistent with the customary and accepted practices for pre-natal care & childbirth. In order to have a chance of winning a medical negligence/malpractice lawsuit, one must prove the following:
- The doctor or healthcare provider(s) was responsible for providing treatment
- The doctor or health care provider(s) did not provide that treatment
- The patient was injured
- The patient’s injury was caused by the doctor or healthcare provider’s failure to provide treatment.
In most cases, the person bringing the lawsuit will try to prove that the doctor, hospital, or healthcare provider’s negligence during delivery actually caused the Cerebral Palsy. In other cases, however, the person bringing the lawsuit will allege that the doctor’s failure to diagnose the Cerebral Palsy led to a harmful condition.
Available Parties To Sue
Almost all Cerebral Palsy lawsuits are against the following:
- Physicians who treated the woman during pregnancy, assisted the delivery, and actually performed the delivery;
- The hospital where the woman sought care during pregnancy and/or gave birth to the child with Cerebral Palsy;
- Any healthcare worker that treated the woman including X-ray technicians, nurses, staff in the operating room etc.
Limitations on the Right to Sue
The main limitation on suing a party in the State of New York is the statute of limitations. The statute of limitations is a legally mandated time frame before which you must file a lawsuit or risk losing your right to ever do so. The general statute of limitations for medical malpractice in New York is two and a half years from the act or omission complained of or from the end of a continuous treatment during which the act or omission took place. If the case is on behalf of an infant, the statute may be delayed (tolled). If the case is for medical negligence resulting in death, the case must be brought within 2 years of the person’s death. Please contact us for further information on the statute of limitations.
Medical Experts
New York law requires attorneys to submit a certificate at the time of filing the legal complaint or by no later than 90 days from the time of filing that they have consulted with qualified medical experts in regards to their clients condition. In addition, New York State law requires that medical experts in Cerebral Palsy cases be called to testify at trial.
Meeting this obligation in a Cerebral Palsy lawsuit may involve consulting specialists in neonatology, placental pathology, life care planning, obstetrics, obstetrical nursing, pediatric neurology, pediatric neuroradiology, economics, and others.
Settlements
A qualified and ethical personal injury attorney with medical negligence experience will always try to settle a case without having to go to trial. The first step is to sit down with the client and develop a dollar figure that reasonably includes the current and future costs associated with the medical negligence and resulting Cerebral Palsy.
The considerations will include both economic and non economic costs including pain and suffering, loss of enjoyment of life, mental stress, medical expenses etc. The goal is not to compensate you for your loss. That is impossible given that money cannot make up for the many deprivations involved in medically negligent Cerebral Palsy cases.
The goal, rather, is to help you cope and get on with your life while providing the best care possible for your infant. It is important to note that settlement does not mean simply going to the negligent parties and their insurance companies and asking for money. Insurance companies will only settle when they know the suing party’s case is strong. Therefore, a good attorney always prepares as if the case is going to trial and avoids seeming eager to settle.
If the insurance company representing the negligent party or the negligent part himself agrees to the monetary amount agreed upon by the attorney and client, the settlement will be consummated. In many cases, a judge will have to stamp his or her approval on the settlement before it is legally recorded. In Cerebral Palsy cases involving medical negligence, a judge will often withhold approval until an independent attorney, usually appointed at the cost of the defendant, researches the settlement and gives a satisfactory report to the judge. The courts carry out this procedure to protect the child’s interest in the settlement and to avoid the potential of the settlement money being used by parents or guardians for purposes other than the child’s care.
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