If your child developed cerebral palsy after a medical mistake, you have the right to sue. Before filing, it helps to learn the basics of the North Dakota cerebral palsy lawsuit filing process or the steps to file a discrimination complaint. An experienced North Dakota cerebral palsy lawyer can be your best ally as you navigate each step.
What Are the Types of Lawsuits I Can File for My Child?
Initially, a lawsuit may not seem like an obvious, urgent decision, but you stand a chance of winning compensation for your child by filing. There are two main types of lawsuits that parents typically file in connection with a cerebral palsy case:
- Medical malpractice. A medical malpractice lawsuit is filed when a doctor or other medical professional harms a patient after failing to meet an adequate standard of care, as established by the medical community. In North Dakota, you have the burden of proving negligence.
- Discrimination. The North Dakota Human Rights Act and several federal laws protect residents of the state from discrimination based on disability. Your child could experience discrimination with education, public services, public access, or housing for your family. You can resolve the situation and potentially recover damages by filing a complaint with the state or the federal government or suing those responsible.
Do I Need a Lawyer for the Cerebral Palsy Filing Process in North Dakota?
Yes, it would be best if you relied on a North Dakota cerebral palsy lawyer to help you get through the process of filing for either malpractice or discrimination.
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Don’t settle for a general lawyer or someone with another specialty area. These kinds of lawsuits are highly specialized, and in-depth knowledge of the relevant laws is crucial.
Search for a lawyer with experience working with disabled clients and who specializes in medical malpractice and disability rights. Get a referral through organizations that advocate for disabled people. The state bar association can also help you find a lawyer with the right area of expertise for your particular case.
How Do I File a Lawsuit for Medical Malpractice and Cerebral Palsy in North Dakota?
The process of filing a medical malpractice lawsuit is complex. It follows the laws established in North Dakota for handling these kinds of cases and puts the burden of proof squarely on you as the plaintiff.
Start with the Statute of Limitations
When filing a medical malpractice lawsuit, the first thing to consider is the state’s statute of limitations.
North Dakota generally allows for two years from the incident or it was discovered to file the lawsuit. Cases cannot be filed more than six years after the actual incident, with an exception for minors that extends this to 12 years.
File an Affidavit of Merit
North Dakota law requires that you file an affidavit of merit before beginning the lawsuit. This also serves to notify the defendants and outline the incident and your allegations.
The affidavit must be signed by a qualified medical expert who has reviewed the evidence and agrees that it is likely your child suffered because of medical negligence.
Discuss Damages with Your Lawyer
Damages may be economical, actual costs like medical bills, or non-economic, for intangible expenses. North Dakota law capped non-economic damages at $500,000 per incident, but this has been successfully challenged in other cases.
Talk to your lawyer about what you might expect to recover and provide them with necessary information about your expenses related to your child’s condition.
Try to Negotiate a Settlement
Most medical malpractice lawsuits end in a settlement agreement. North Dakota law requires that you try to settle in good faith. Your lawyer will try to negotiate a fair amount based on your expenses and your child’s disabilities.
Take Your Lawsuit to Trial
If the negotiations fail, and you have the final say in accepting or rejecting an offer of a settlement, you can continue the case in court.
In court, your lawyer will argue your case before a jury, providing evidence and expert testimony. The jury makes the decision and awards any damages.
How Do I File a Discrimination Complaint in North Dakota?
As your child gets older, you may find that discrimination becomes an issue. Some potential situations you may face that could require legal action include:
- Failure of schools to offer appropriate accommodations or to follow special education plans
- Inadequate services or benefits from government agencies
- A landlord who refuses to provide accommodations in a rental property
- Poor or lack of access to public transportation or other spaces
North Dakota laws cover discrimination in public places, public services, and housing, but you may have to turn to the federal government for education issues.
Your lawyer can help you begin the process of filing a complaint with the North Dakota Department of Labor and Human Rights or the U.S. Department of Education.
Filing a complaint usually follows a simple process: the complaint is sent to notify the respondent; an investigator conducts a neutral investigation. If the finding is probable cause for discrimination, you will go through mediation or conciliation. If mediation fails, you may take your case to a public hearing.
Filing a lawsuit for your child with cerebral palsy can come with big rewards, including better access and services and damages that help pay the treatment costs.
A lawyer is your best ally in the legal process and can help you get through the steps with the best chances of a good outcome for your child’s future.
- Human Rights Act. (n.d.). Department of Labor and Human Rights. Official Portal for North Dakota State Government.
Retrieved from: https://www.nd.gov/labor/human-rights-act
- 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
- Caps 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
- Individuals with Disabilities Education Act (IDEA). (n.d.). Individuals with Disabilities Education Act. U.S. Department of Education.
Retrieved from: https://sites.ed.gov/idea/