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If your baby developed cerebral palsy because of medical negligence and mistakes, you have the legal right to file a cerebral palsy claim for compensation against the negligent party. Compensation can help you pay for the overwhelming expenses associated with caring for a child with cerebral palsy.
What Is a Cerebral Palsy Claim For Compensation?
A cerebral palsy claim for compensation is a legal claim filed in court, stating that you are seeking compensation from the party responsible for contributing to your child developing cerebral palsy.
For instance, sometimes cerebral palsy may not have developed if your physician properly monitored you for prenatal infections and illnesses. Or perhaps your infant’s heart rate wasn’t measured correctly during labor. Other reasons for medical negligence that can cause cerebral palsy include:
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- Failure to schedule and carry out an emergency C-section in time
- Improper use of forceps or other birth-assisting tools during delivery
- Failure to identify umbilical cord and placental problems
- Failure to deliver the baby in time, causing oxygen loss
- Dropping the infant shortly after birth, causing brain damage
Qualifications for Cerebral Palsy Claims for Compensation
Making a successful claim for compensation requires proving certain facts:
A Patient/Doctor Relationship
To file a cerebral palsy claim for compensation, you’ll first need to ensure that the physician (who you feel is responsible) had a professional medical relationship with you before the negligence occurred.
For example, if a doctor delivered your infant, even if they weren’t your primary doctor, this would still be considered an established medical relationship, as the physician performed the delivery.
However, if a physician who has never treated you before offers you advice on how to care for yourself during pregnancy, yet you’ve never been a patient of the doctor, this would not establish a doctor/patient relation.
Proof That the Physician Breached a Standard of Care
You also must show that the physician, or other medical professional, failed to meet an accepted standard of care. This means looking at what a similar professional would have done in the same situation. If your physician deviated from that standard, they could be negligent.
Proof That Negligence Caused Cerebral Palsy
Many factors can cause a baby to develop cerebral palsy. Sometimes, there is no cause found at all. For a successful claim, you need to establish that your child’s cerebral palsy resulted from the breach in standard of care.
Damages Related to the Negligence
If you can prove all of the above, it’s usually not difficult to show that the physician’s mistakes cost you and your child. This could be the cost of medical bills, for instance, lost salary or earning potential, or even emotional costs.
Types of Compensation Commonly Won in Cerebral Palsy Claims
It’s impossible to know exactly how much compensation you’re entitled to without a cerebral palsy attorney working your case. However, in general, plaintiffs can claim:
- Parental lost wages
- Pain and suffering
- Medical expenses (including past, present, and estimated future costs)
- Therapy and rehabilitation costs
- Special education costs
- Home accommodation expenses
- Counseling expenses
Average Compensation Amount for Cerebral Palsy Claims
Although, as mentioned earlier, there isn’t a set way to determine how much compensation you’ll receive for your child’s cerebral palsy claim. It will depend on the severity of the disorder, along with your state’s laws.
For instance, some states cap non-economic damages at a certain maximum amount. Some states, including New York and Minnesota, have no non-economic cap limits at all. Your cerebral palsy attorney will help you understand your state’s laws.
Economic damages will differ depending on your state and the severity of your child’s cerebral palsy. On the higher end, such as a 2012 cerebral palsy case in New York, the plaintiffs won more than $100 million, which included both non-economic and economic damages.
On the lower end, plaintiffs in Washington won a $5 million settlement for their child’s cerebral palsy.
Going to trial usually yields higher payouts than settlements out of court. However, there are pros and cons to both trials and settlements. Your cerebral palsy will work with you closely to determine which type of outcome would work best for you.
Statute of Limitations for Cerebral Palsy Claims for Compensation
Another critical factor to keep in mind is that each state has a statute of limitations when filing cerebral palsy claims. This means that you have a certain amount of time from the time a doctor diagnosed your child with cerebral palsy to submit your claim.
Statute of limitations will vary according to state laws. While some states may allow up to 6 years for you to file a claim, others may limit your time to 1 year from the time you discovered your child’s cerebral palsy.
Sometimes, adults with cerebral palsy may wish to file a claim on their behalf. Some states honor these types of claims, which mandates that the statute of limitations begins when the child turns 18.
Most economic experts discourage waiting this long and allowing your adult child to file, as most families living with children who have cerebral palsy will have a host of expenses.
The sooner you get compensated, the easier it will be to help care for your child.
- When is a patient-physician relationship established? (n.d.). Journal of Ethics | American Medical Association
Retrieved from: https://journalofethics.ama-assn.org/article/when-patient-physician-relationship-established/2012-05
- Aps on damages. (2017). American Medical Association | AMA. Advocacy Resource Center
Retrieved from: https://www.ama-assn.org/sites/ama-assn.org/files/corp/media-browser/premium/arc/caps-on-damages_0.pdf
- Medical liability/Malpractice statutes of limitation. (2014, March 20). Legislative News, Studies and Analysis | National Conference of State Legislatures.
Retrieved from: https://www.ncsl.org/research/financial-services-and-commerce/medical-liability-malpractice-statutes-of-limitation.aspx