Cerebral Palsy Lawsuits Explained
After finding out their child has cerebral palsy, parents may ask themselves, “Was my child’s condition preventable?”
The truth is, there is little risk to parents who are thinking about moving forward with a lawsuit.
If you have any reason to believe that a medical mistake or improper care contributed to your child’s CP, you may want to consider exploring whether or not you have a valid case.
In the past, lawsuits have been filed because the medical team neglected to:
- Detect infections during pregnancy
- Foresee adverse side effects from medications or surgeries
- Perform a necessary cesarean section
- Monitor the baby’s oxygen levels, during and after delivery
- Treat severe jaundice in the newborn
A more detailed list of the signs of a birth injury can be found here. There can be many favorable outcomes to filing a lawsuit — from peace of mind for your family to valuable financial compensation to put towards treatment costs.
There is also a larger societal goal achieved when negligent medical providers are held accountable for their conduct, as they will typically be less likely to repeat these mistakes with future patients.
The Benefits of Filing A Case
It’s no secret that caring for a child with any type of disability can be an expensive undertaking. Many individuals with CP require specialized treatment for most of their lives in order to manage their symptoms. If a child with cerebral palsy also has a coexisting condition, such as autism or epilepsy, these expenses can be even greater.
While there are many avenues of financial support for a child with CP, legal compensation can significantly help secure your child’s future. These funds can be put towards past and future expenses associated with caring for an individual with cerebral palsy. It can also relieve parents of any anxiety over paying for CP treatment, home or car modifications, assistive technology and more.
In addition to alleviating treatment costs, some other benefits of filing a case include:
Determining The Cause of Cerebral Palsy
Parents may hesitate to file a birth injury lawsuit because they aren’t sure what caused their child’s cerebral palsy. Fortunately for parents, determining the cause of your child’s CP is part of the legal process.
Lawyers with expertise in cerebral palsy cases are like private investigators — they use specific methods to turn up any evidence of medical errors or neglect. After determining the probable cause of your child’s CP, your lawyer will evaluate the strength of your case.
If it turns out that your child’s cerebral palsy was likely the result of a preventable injury, you will be guided through the next steps by your legal team. If your lawyer determines your child’s CP may not have been preventable, your family will still share the peace of mind of knowing what led to your child’s condition.
A Free Case Review
Most initial case reviews for a cerebral palsy lawsuit are offered free of charge. Almost all lawyers handling birth injury cases will work on a contingency fee. This means that parents will only be required to pay their lawyer a fixed percentage (often one third) of the amount recovered.
It’s also important to point out that if you lose your case, you won’t be responsible for paying anything. Offering a contingency fee program is just one of the most important things to look for in a cerebral palsy lawyer.
Most Cases Settle Before Going To Trial
Some parents may hesitate to pursue legal action because they don’t want to deal with a lengthy trial. However, statistics show that most cerebral palsy cases will settle before going to trial.
Settling in a CP lawsuit is often beneficial for both the plaintiff and defendant. This is because negotiating a settlement outside of court avoids the risk and uncertainty of a jury verdict. To find out more information about cerebral palsy settlements, click here.
What To Expect During A CP Lawsuit
There are a few basic steps required to file a lawsuit. Lawyers will work closely with parents and caregivers before filing a lawsuit to ensure that evidence of a preventable birth injury can be clearly demonstrated to the court.
Although procedures may vary depending on the jurisdiction in which the case is brought, within a cerebral palsy lawsuit, there are 6 basic steps:
- Case evaluation – Conducted with a team of experienced birth injury lawyers and medical experts
- Written Discovery – Compiling all relevant facts, information and medical documents
- Depositions – Formal questioning while under oath
- Expert Discovery – Exchanging expert opinions which will be used at trial
- Mediation – Attempt to resolve case before going to trial
- Trial – Presenting your case before a jury and judge
1. Case Evaluation
A case evaluation is a method of obtaining a neutral assessment of the relative strengths and weaknesses of your case. This is an important first step in the legal process that will allow you to get to know your legal team. Because parents have the most intimate knowledge of their child’s condition, it is beneficial for parents and lawyers to work closely in the beginning of the legal process in order to fully evaluate all relevant facts.
The parents’ role within a case evaluation is to present your lawyers with all information and documents necessary for them to obtain a clear idea of your case and its validity.
Case evaluations should be conducted by a team of lawyers who have experience with birth injury lawsuits and the various elements of these cases. Upon receiving a case evaluation, it will either be determined that you have a case worth pursuing, or you may need to gather more proof before filing a lawsuit.
The case evaluation should begin with an experienced CP lawyer obtaining all medical records needed to determine the actual cause of your child’s condition and whether or not the condition was medically preventable. In a birth injury lawsuit, these records typically include:
- Prenatal records
- Delivery records
- Birth records
- NICU records
- Any head studies performed, such as an EEG, MRI or CT Scan
Then, the lawyer typically consults with reputable experts to confirm that there is a sound basis for a claim. It is important to note that while lawyers are happy to evaluate the details of any case involving a child with a potentially preventable birth injury, not all cases will merit filing a lawsuit. A lawsuit would only be prepared and filed after these steps have been completed to make sure the lawsuit is valid and has merit.
2. Written Discovery
Discovery is the process of compiling and exchanging all information pertinent to the case. This includes medical records, photographs, statements, bills and numerous other documents that can be used throughout the legal process.
At the beginning of the lawsuit, parties typically exchange formal requests on each other seeking to obtain information that the other side possesses about the case. This is known as written discovery, and this step often includes the use of Interrogatories. This is a set of written questions that each side asks the other side in order to address any concerning information that is relevant to the case.
The main objective for the discovery process is that both sides of the case are able to come into court prepared, knowing exactly what they will be arguing for or against.
All research during discovery will be conducted by your legal team and their consulting medical experts. Parents are involved in the discovery process by providing their lawyers with all necessary medical documents that will be used in court.
If parents are having difficulty getting all of the records needed to file a case, your lawyers will be able to obtain them from the hospital your child was born at using the Health Insurance Portability and Accountability Act (HIPAA) authorization. The HIPAA privacy rule protects the privacy of patients’ health care information, as well as the use and disclosure of this information.
A deposition is an individual’s sworn testimony. This takes place before mediation or trial. The purpose of a deposition is to discover any information which the witness has which could be relevant to the case. In a birth injury case, much of the focus is centered around what knowledge the parties have of events that took place before, during and after birth.
Parents have an important role in a deposition, as they will be interviewed about the details surrounding their child’s condition.
There will be a number of people present at a deposition, including:
- The individual(s) filing the case
- Your attorney
- Defense attorneys
- A court reporter
- A translator, if necessary
It is essential that all questions at this stage in the case are answered as honestly as possible. Any obvious discrepancies between what was said in a deposition and what is said during trial will be used to argue against your credibility.
Your lawyer will prepare you for this step before you are brought into the deposition. Your lawyer will also conduct depositions of the defendant medical providers, along with other medical personnel whose care might be relevant to the case.
4. Expert Discovery
In most states, there is an exchange of expert reports. Expert reports are detailed statements outlining the opinions which the expert has concerning certain issues in the case.
For example, in order to succeed in a cerebral palsy lawsuit, expert testimony will be needed to establish that the medical care was negligent and that this contributed to the child’s outcome (with a few exceptions). In many states, after expert reports are exchanged, depositions of the experts on both sides will be taken.
Unlike a deposition where communication is conducted through questions between the parties and their respective lawyers, mediation is seen as more of a conversation or an opportunity to openly discuss the case to explore whether or not the parties can agree to a settlement.
In some jurisdictions, mediation is a required step in the lawsuit. In other jurisdictions, mediation is a completely voluntary process that does not take place at all unless both sides agree.
The mediation process involves establishing a space where both parties can speak and listen to each other – not testify or argue. A mediator will explain the process and ground rules for the session and both parties will be asked to sign an agreement. Then, lawyers will typically outline their side of the case and the strengths regarding their claim or defense.
Parents are encouraged to participate in mediation, as they will ultimately be the deciding factor in whether the case resolves during this step.
Mediation can be a very important part of a cerebral palsy trial, as it often results in an open dialogue, which helps move the case toward resolution. Reaching a mutual agreement between both parties is usually less emotionally and financially draining for everyone involved.
If both sides of the case are able to form an agreement during mediation, the terms and conditions of the negotiation will be put into a document that details the settlement. This will typically resolve the case, with the next step being receiving approval by the court.
If both sides are unable to come to an agreement during mediation, the case will be brought to trial.
A cerebral palsy trial will begin with jury selection. Once the jury has been chosen, the parties will move on to opening statements. At this time, your lawyer will present the court with an overview of the case and advocate for your position. The defendant will then have the opportunity to present their own opening statement, which usually involves explaining the various reasons why the defendant did nothing wrong in the eyes of the law.
Following opening statements, your lawyer will fully present your case to the court. This involves calling your legal team’s expert medical witnesses to the stand and offering their testimony as evidence.
Generally, there are 3 elements that must be proven in a cerebral palsy lawsuit. These are:
- A doctor, nurse or hospital had a legal duty of care
- The doctor, nurse or hospital breached this medical standard of care
- This breach of duty of care was a substantial factor in causing your child’s cerebral palsy
Once both sides of the case have been fully presented to the court, closing arguments will begin. These are similar in nature to opening statements, as they are designed to emphasize the strengths of your argument and the most important pieces of evidence used during the trial.
Following closing statements, the judge will send the jury to deliberate. Once the jury reaches a decision, they will discuss how much compensation you should receive. The amount of damages awarded during this step will depend entirely on the case, the state in which the motion was filed, and the events that took place throughout the legal process.
Once the verdict and damages are presented in court by the judge, the case will be over. However, either side may decide to appeal if they feel that mistakes were made during trial which caused an unjust outcome.
Getting Started With A Cerebral Palsy Lawsuit
The process of filing a lawsuit can be time-consuming and stressful. However, you are not alone during this process and your lawyer will guide you through it, every step of the way.
If you suspect that your child’s cerebral palsy is the result of medical negligence, it’s time to get started with your free case review.