What Needs to Be Proved to Succeed in a Cerebral Palsy Lawsuit?
Cerebral palsy (CP) affects hundreds of thousands of people around the world. It impacts around one to two births in every thousand in the United States. CP is a motor function disability that permanently debilitates victims. Although a number of factors can cause cerebral palsy, one of the common causes is a birth injury. If a negligent physician causes a birth injury through an act of malpractice, resulting in a child’s cerebral palsy, that physician (and/or a medical facility) could be liable for damages.Medical Malpractice Lawsuits for Cerebral Palsy
The majority (up to 90%) of cerebral palsy cases are congenital. The other 10%, however, stem from birth injuries. Birth injuries can occur during pregnancy, labor, delivery, or shortly after birth. They come in many types, and may be severe enough to damage the infant’s brain development. Certain types of damage to the brain can cause cerebral palsy or other neurological conditions. Some of the most common types of birth injuries related to CP include:
- Lack of oxygen to the brain (hypoxia)
- Lack of blood flow to the brain
- Maternal or infant infections
- Severe cases of shoulder dystocia
- Traumatic brain injuries
It is a physician’s duty to reasonably prevent brain damage and cerebral palsy through safe and prudent patient care during pregnancy and delivery. Any failure to fulfill the accepted standards, resulting in patient injury, is medical malpractice. If a parent suspects malpractice caused or contributed to a child’s cerebral palsy, that parent may have grounds for a lawsuit to claim damages. A lawsuit could result in financial compensation for past and future medical bills, pain and suffering, lost wages, and other CP-related damages.How to Prove a Case
Each state has unique medical malpractice laws. In Illinois, plaintiffs have two years from the date of the birth injury – or discovery of injury – to file a medical malpractice claim. Plaintiffs also need to file an affidavit of merit with a statement from a medical expert supporting the right to a claim. In most states, however, the elements needed to prove a medical malpractice case remain the same. They are as follows:
- Duty of care. A patient must establish that the physician (or other defendant) owed the injured party (the plaintiff) a duty of care at the time of alleged wrongdoing. This takes showing that a doctor-patient relationship existed. A medical expert may be necessary to help establish a doctor’s duty of care.
- Breach of duty. A breach of duty describes any action or omission that falls outside the defendant’s duty of care to the plaintiff. A breach of duty in a cerebral palsy lawsuit could include failure to monitor fetal heart rate, improper use of birthing tools during delivery, or failure to order an emergency cesarean section.
- Causation. The patient must show evidence that the defendant’s breach of duty caused the child’s birth injury and/or cerebral palsy. There must be a direct causal link between the act of malpractice and the plaintiff’s damages.
- Damages. Finally, the plaintiff needs evidence of real, compensable damages from the act of malpractice. Damages can include personal injuries, disabilities, past and future medical expenses, lost wages, and pain and suffering.
With these four main elements, a plaintiff will have grounds for a cerebral palsy lawsuit. To prove malpractice and succeed in securing a settlement or verdict, a plaintiff will need evidence such as medical records, bills, and subject matter experts. The case may or may not go to court. It is up to the plaintiff – and his/her attorney – to prove malpractice and show all four elements of a case before a judge or jury. A successful lawsuit could result in payment for past and future cerebral palsy expenses for the victim and family.