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The diagnosis of cerebral palsy for a child can be devastating. Knowing your child will live with a disorder forever is hard to take. However, if medical negligence caused your child’s diagnosis, you have legal options.
Understanding the cerebral palsy lawsuit filing process will help you make better decisions, but you also need to rely on the advice of an experienced lawyer. Don’t try to go through the process alone. Your chances of succeeding are slim.
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What Kind of Lawsuit Can I File in New York for My Child with Cerebral Palsy?
There are a couple of different reasons you may consider filing a lawsuit on behalf of your child:
- If you believe your child suffered because of medical negligence, you may want to file a medical malpractice lawsuit. Medical malpractice occurs when a medical professional has failed to provide an adequate standard of care, resulting in significant harm to the patient. Your child’s cerebral palsy may be the result of a careless, medical mistake. With a lawsuit, you can get justice for the harm caused and recover damages.
- If your child is experiencing discrimination, a lawsuit or a complaint can be filed to remedy the situation. New York and federal laws prohibit discrimination based on disability in housing, public accommodations, and education, areas that may impact your child. Filing a complaint with the appropriate government agency or filing a lawsuit against those responsible can result in remediation and even damages.
Filing a Medical Malpractice Lawsuit in New York
The process of filing a malpractice lawsuit over cerebral palsy requires several steps, as outlined by New York Law. It can be confusing if you have never been through this before, and the help of the right lawyer is essential. Even so, make sure you have a general understanding of the filing process and the laws before beginning:
Statute of Limitations
The statute of limitations in New York for a medical malpractice case is two and a half years. That limit is set either from the time of the medical negligence or from the time you discovered it if it was not possible to know about it immediately. 
Next, as long as you are within the statute of limitations, you need to help your lawyer determine how much you’ll seek in damages. New York does not cap damages at all, so you can seek as much as seems fair. Provide your lawyer with medical records, bills, and any related receipts to help estimate a total.
Affidavit of Merit
New York state laws require that you send in an affidavit of merit before officially filing your lawsuit. This is a document that is signed by a qualified medical expert.  It states that, according to the expert and the evidence, there is a likely chance that medical negligence did occur.
Filing the Lawsuit
Once you have done that, you can file the official complaint. This document outlines all the information about what you believe happened and how it harmed your child. It notifies the defendants of the action being taken and gives them time to prepare.
Most medical malpractice cases end in a settlement because it is often faster and less expensive for the defendants than going to trial. New York requires that both sides participate in a settlement conference. Here your lawyer will present evidence and negotiate on your behalf for a fair settlement amount.
Trial before a Jury
If your settlement conference is unsuccessful, your case can go to trial. Your lawyer will prepare and present evidence and call on expert witnesses to convince the jury that your child was harmed by medical negligence.
The jury decides if negligence occurred and what damages you are owed if any. Both sides have a right to appeal this decision and take it to a higher court.
Filing a Cerebral Palsy Discrimination Complaint in New York
The New York State Human Rights Law protects disabled individuals from discrimination in several areas.  For your child, education, public accommodation, and housing may be most important. There are also federal laws that prohibit discrimination. Your lawyer can help you determine which law and which agency is most appropriate for your situation.
To file a complaint with the state’s Division of Human Rights, you’ll complete an official form, which then must be notarized. You must include any documents that make your case. All this information will be used by the Division to conduct a neutral investigation. This usually takes about 180 days.
The Division will decide on the conclusion of the investigation. The determination will either be no probable cause or probable cause for discrimination. If there is probable cause, your case will go to a public hearing for a final decision and any actions that need to be taken to resolve the situation.
You can also file a civil lawsuit against those responsible for trying to resolve the issue or recover damages.
Before you start any legal action, be sure you have the right New York cerebral palsy lawyer on your side, fighting on behalf of your child. Find a lawyer with relevant experience, someone who has in-depth knowledge of the laws and specializes in cerebral palsy, medical malpractice, and disability rights.
Keep in mind that a reliable and experienced lawyer will give you the best possible chance of winning your lawsuit and getting through the process smoothly.
- 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
- Medical liability/Malpractice merit affidavits and expert witnesses. (2014, June 24). Legislative News, Studies and Analysis | National Conference of State Legislatures.
Retrieved from: https://www.ncsl.org/research/financial-services-and-commerce/medical-liability-malpractice-merit-affidavits-and-expert-witnesses.aspx
- New York State Human Rights Law. General Regulations. (n.d.). New York State Division of Human Rights |.
Retrieved from: https://dhr.ny.gov/law