Cerebral Palsy and Medical Malpractice
Cerebral palsy is one of the most devastating birth injuries that can be caused by medical malpractice. Regardless of how severe or minor the disorder is, it will affect a child for the rest of his/her life. If your child was injured due medical mistakes, there are options you can take to help you get compensation for medical expenses, pain, suffering, and more.
Cerebral Palsy Medical Malpractice Causes
In many cases, children develop cerebral palsy during birth, primarily due to lack of oxygen to the brain and/or body, delivery mistakes that cause trauma, or premature delivery. Other instances that cause birth injuries that lead to cerebral palsy can include physicians failing to:
- Properly detect and treat maternal infections
- Monitor fetal heart rate
- Detect and correct umbilical issues
- Schedule and perform an emergency C-section
- Use birth-assisting tools correctly
- Perform safe surgical procedures
Since these types of injuries almost always could have been stopped before they happened, physicians may be liable for damages. Medical malpractice occurs when a medical professional causes injuries that could have otherwise been prevented. For instance, a physician who pulls too hard on an infant’s head during delivery may end up hurting the baby, but it could have been avoided if not for using excessive force.
What Can Parents Expect from a Medical Malpractice Case?
Taking care of a child with cerebral palsy can get quite costly, averaging over $1 million for a lifetime of care. This is usually more than the average family can afford. A medical malpractice case will help parents in obtaining compensation to help pay for the overwhelming expenses that come along with caring for a child with cerebral palsy, such as:
- Medication costs
- Transportation costs (to and from medical facilities)
- Special education expenses
- Expenses for counseling
- Physical therapy, occupational therapy, and other therapy costs
- Pain and suffering (if applicable in your state)
- Lost wages (if applicable)
- Costs for assistive equipment and technology, such as walkers, wheelchairs, or soundboards.
- Expenses for home accommodations, such as installing a ramp and specialized rails
Who Can File a Medical Malpractice Case?
Not all instances of cerebral palsy are caused by medical negligence. In order to file a valid medical malpractice case, you’ll need to ensure that your case meets the following qualifications:
- Your child’s cerebral palsy was caused by the negligence of a physician or medical staff.
- There was an existing relationship between you and the medical staff. For example, if a physician delivered your baby, then a medical relationship exists. On the other, a doctor who you’ve never had an appointment with does not qualify.
- Your child’s injuries must have happened at the hands of the physician or medical staff you had a medical relationship with.
An experienced cerebral palsy attorney can help you gather the medical documents and other proof needed to establish your medical malpractice case. An attorney will also be able to let you know prior to filing if you do indeed have a valid case.
How Much Compensation Can a Medical Malpractice Case Bring?
Compensation for a cerebral palsy medical malpractice case will depend on a number of factors, including how long your child has had the disorder, happened, the severity of the disorder, and other factors. Therefore, it’s impossible to give an exact amount parents can expect should they win their case.
Statistics show that while some plaintiffs have been awarded $200,000 for their lawsuit, other plaintiffs have been awarded $60 million and more. Another factor that equates into compensation amount is if your state allows non-economic damages in medical malpractice cases. Non-economic damages are compensation for physical and emotional pain, stress, anxiety, and other factor that takes away from the enjoyment of life due to cerebral palsy.
Some states also have cap limits on medical malpractice cases, meaning that the amount of money you’re entitled to win may be limited to a maximum amount. However, if you live in one of the 15 states with no caps on medical malpractice cases, then you won’t be limited to the amount you may receive.
Will My Compensation Be Capped If I Win?
There is a possibility that the amount of money you can receive from a medical malpractice lawsuit will be capped. This depends on the state you live in. Many states placed a limitation on how much you can get from a medical malpractice lawsuit in order to balance out extremely high and excessive jury award amounts. The medical community suggests that capped amounts help to protect the health care industry.
Regardless, there may be caps on noneconomic damages, which include pain and suffering and/or emotional distress. Most states don’t have a limit on economic damages, such as lost wages and/or medical expenses, which typically include the past, present, and estimated future costs. Currently, there are only a select few states that have caps on economic damages. Your attorney will tell you if what, if any, caps that your state has.
Will My Medical Malpractice Case Go to Trial?
Yes, in some instances, a cerebral palsy medical malpractice case will go to trial. This usually occurs when the defendants refuse to settle the lawsuit out of court or when both parties cannot come to an agreement on a settlement amount. The majority of cases, however, end up being settled before going to court.
What Does Informed Consent Mean and Does it Affect a Medical Malpractice Case?
“Informed consent” in a medical setting means that a physician must inform you of and get your consent before performing any procedure. If a physician fails to inform and get the consent of a patient, medical malpractice may have occurred. However, in certain instances, informed consent isn’t required, such as if a patient is comatose and a member of the family cannot be reached.
If a Doctor Misdiagnosed My Child’s Cerebral Palsy, Is it Medical Malpractice?
Misdiagnosis isn’t always considered medical malpractice. However, if the misdiagnosis occurred because the doctor didn’t meet the standard of care set forth by the state the incident happened it, it can possibly be medical malpractice.
What if a Hospital Nurse Made Mistakes? Can I Still Sue for Medical Malpractice?
Cerebral palsy medical malpractice cases aren’t limited to only your child’s doctor. Nurses, medical technicians, therapists, and even the hospital where the malpractice occurred can be sued.
What’s the Difference Between Economic and Non-Economic Damages?
There are two basic forms of compensation in medical malpractice cases: economic damages and non-economic damages. Economic damages cover the money lost due to the injury. For example, in a cerebral palsy lawsuit, economic damages can include:
- Medical expenses (including the past and future costs)
- Physical therapy and rehabilitation expenses
- Medication costs
- Lost wages (if you missed work or had to stop work to care for your child)
- Special education, counseling, and/or specialized care costs
- Home accommodation costs
On the other hand, non-economic damages are compensation amounts geared towards the pain and suffering incurred. Examples include:
- Physical pain
- Emotional distress
- Loss of joy of life
- Permanent impairment
- Loss of function
Cerebral Palsy Medical Malpractice Caps by State
Alabama is one of the few states that doesn’t have caps on both economic and non-economic damages in medical malpractice cases.
Alaska doesn’t have a cap on economic damages but for non-economic damages, the cap is set at $250,000. However, if there is “severe physical impairment,” the non-economic cap may be bumped up to $400,000.
Arizona is another one of the few states that don’t have caps on both economic and non-economic damages in medical malpractice cases.
According to the Medical Injury Compensation Reform Act (MICRA), California places caps on non-economic damages at $250,000. There is no cap on economic damages.
Colorado has a unique economic cap, known as the umbrella cap, which mandates that economic damages are capped at $1 million. However, under special circumstance, the $1 million cap is lifted if the courts feel that the limit is unfair given the circumstance of the injury and disorder. Non-economic damages are capped at $300,000.
Connecticut is one of the few states that doesn’t have caps on economic and non-economic damages in medical malpractice cases.
Delaware is another state that doesn’t have caps on economic and non-economic damages in medical malpractice cases.
Florida only has caps on non-economic damages, but there are different types of non-economic caps, which can be confusing if the plaintiff doesn’t understand them beforehand. To start, $500,000 cap on non-economic damages when the lawsuit is against physicians/practitioners. For cerebral palsy lawsuits against non-practitioners, the non-economic damages cap is $750,000.
However, there are exceptions when the non-economic can be increased and in some cases, it may be dropped.
Georgia doesn’t have a cap on economic damages, but the cap for non-economic damages is set at $350,000 when the case is against one medical provider (a physician for example) or for a single medical facility. If the lawsuit is against multiple medical facilities, the non-economic damages cap goes up to $700,000.
In 2010, however, the Georgia Supreme Court deemed that the non-economic damages caps in the state are unconstitutional, which may affect the amount of compensation on future cases.
According to Hawaii Statutes section 663-8.7, non-economic damages in medical malpractice cases have a cap of $375,000. There are no caps on economic damages.
Per Idaho Code section 6-1603, non-economic damages in medical malpractice cases have a cap of $250,000. There are no caps on economic damages.
Illinois once had a $500,000 cap on non-economic damages against physicians, and a $1 million non-economic damages cap against hospitals. However, after the Illinois Supreme Court in the 2010 case of LeBron v. Gottlieb Memorial Hospital, all medical malpractice non-economic caps were lifted. Illinois has no caps on economic damages.
According to Indiana Code Chapter 34-18-14, medical malpractice cases have a damages cap at $1.25 million for healthcare treatment mistakes and errors. However, individual healthcare providers cannot be liable for more than $250,000. Any amounts in excess of $250,000 will be paid by the Indiana Patient Compensation Fund. There are no caps on economic damages. The $1.25 million damages cap includes both economic and non-economic damages.
Iowa has no caps on medical malpractice cases, which includes both economic and non-economic damages.
Kansas law places a $250,000 non-economic damages cap per plaintiff. There are no economic damages caps in Kansas.
Kentucky has no caps on medical malpractice cases, which includes both economic and non-economic damages.
The state of Louisiana caps non-economic damages at $500,000. However, this can be increased if future medical care for the victim rises. Any amount over $100,000 in medical malpractice cases against physicians will be paid by the state Patient’s Compensation Fund.
Maine is one of the few states that doesn’t place caps on economic and non-economic damages. The only exception, however, is cases that involve wrongful death. Under Maine Revised Statutes Title 18A section 2-804, wrongful death cases have a cap of $500,000.
Maryland has a $725,000 cap on medical malpractice non-economic damages. However, a 2009 law passed in Maryland states that non-economic damages caps will increase each year by $15,000. There are no economic damages caps in Maryland.
For medical malpractice cases, including cerebral palsy medical malpractice lawsuits, Massachusetts has a non-economic damages cap of $500,000. There are no economic damages caps in Massachusetts.
Michigan Compiled Laws section 600.1483 mandates a $280,000 non-economic damages cap on medical malpractice cases. The cap is increased to $500,000 if:
- The medical mistakes left the victim with a permanent cognitive impairment which results in the inability to make daily life decisions
- The medical mistake cause the victim to become hemiplegic, paraplegic, quadriplegic, or a total and permanent loss of a limb
- The medical mistake resulted in total and permanent loss of a reproductive organ
There are no caps on economic damages in Michigan.
Minnesota has no caps on medical malpractice cases, which includes both economic and non-economic damages.
According to Mississippi Code section 11-1-60, non-economic damages in medical malpractice cases are capped at $500,000. There are no economic damages caps in Mississippi.
Missouri Revised Statutes section 538.210 states that all medical malpractice non-economic damages are capped at $350,000. There are no economic caps in Missouri.
Montana doesn’t have a cap for economic damages. However, non-economic damages in medical malpractice cases are capped at $250,000.
Under Nebraska Revised Statutes section 44-2825, medical malpractice damages, both economic and non-economic damages combined, are capped at $2.25 million for injuries that happened after December 31, 2014. For medical negligence that occurred before December 31, 2014, but after December 31, 2003, both economic and non-economic damages are capped at $1.75 million. For medical negligence that happened between December 31, 1992, and December 31, 2003, the damages are capped at $1.25 million.
Nevada Revised Statutes section 41A.035 mandates that non-economic damages in medical malpractice cases are capped at $350,000. There are no caps on medical malpractice economic damages in Nevada.
New Hampshire is a part of the select states that have no caps on any types of damages in medical malpractice cases.
Under New Jersey Statutes section 2A:15-5.14, total damages are limited to either $350,000 or up to five times the amount, whichever is greater (economic or non-economic damages).
New York is one of the few states that doesn’t have a cap on medical malpractice cases and how much you can receive. This includes both economic and non-economic damages.
New Mexico has a medical malpractice cap of $600,000, but this amount doesn’t include medical costs, whether past, present, or future. Instead, it applies to situations such as lost wages, lost employment, as well as all non-economic damages.
North Carolina has a $500,000 medical malpractice cap for non-economic damages, but in 2014, the state allowed this amount to increase each year for inflation. There are no medical malpractice economic caps in North Carolina.
North Dakota medical malpractice non-economic damages are capped at $500,000. Although there are no caps on economic damages, anything over $250,000 can be challenged and reviewed by the court to ensure the amount is reasonable.
According to Ohio Rev. Code Ann. § 2323.43, non-economic medical malpractice damages in Ohio cannot go over three times the plaintiff’s economic damages or over $250,000, whichever is greater. The total non-economic damages cannot exceed a total of $350,000 per plaintiff. If the case has more than one plaintiff, the non-economic damages cap is set to $500,000. There are no economic caps in Ohio.
Oklahoma Statutes section 23-61.2 states that medical malpractice non-economic damages are capped at $350,000. There are no caps on economic damages.
Under Oregon law, non-economic caps in medical malpractice cases are only used when the case involves a wrongful death. In these instances, the cap is set at $500,000. There are no economic caps in Oregon.
Pennsylvania has no caps on economic and non-economic damages in medical malpractice cases, but there are certain caps on punitive damages.
Rhode Island has no caps on medical malpractice cases, which includes both economic and non-economic damages.
Under the S.C. Code of Laws Title 15, Chapter 32, non-economic damages in medical malpractice cases are capped at $350,000 for a case against one healthcare provider. However, if the case is against most than one defendant, the total amount of non-economic damages cannot exceed $1.05 million. There are no economic caps for medical malpractice cases in South Carolina.
For medical malpractice cases, Tennessee has a $750,000 cap, but the cap can increase to $1 million if the plaintiff proves that the defendant’s medical negligence cause a “catastrophic” injury, such as paralysis, amputation, and/or wrongful death. There are no economic caps for medical malpractice lawsuits in Tennessee.
Under Texas Civ. Prac. & Rem. Code section 74.301, Texas has a non-economic damages cap on medical malpractice cases of $250,000 when the lawsuit is against a doctor or another type of health care provider. The cap is extended to $500,000 when the lawsuit is against multiple health care facilities. There is no economic cap in Texas for medical malpractice cases.
Under Utah Code section 78B-3-410, medical malpractice lawsuits have a non-economic damages cap of $450,000. There is no cap on economic damages.
There are no damages caps on either economic or non-economic damages in Vermont.
Virginia’s medical malpractice caps are set for both economic and non-economic damages combined, and consist of the following:
– Cases from July 1, 2013, through June 30, 2014: $2.10 million
– Cases from July 1, 2014, through June 30, 2015: $2.15 million
-Cases from July 1, 2015, through June 30, 2016: $2.20 million
-Cases from July 1, 2016, through June 30, 2017: $2.25 million
The limit will stop increasing at $3 million, slated to take place in 2031.
Washington is one of the few states that has no caps at all on both economic damages and non-economic damages.
Similar to Washington state, Washington D.C. is also one of the few states with no caps on damages, whether economic or non-economic.
West Virginia has a cap of $250,000 in non-economic damages in medical malpractice lawsuits, but this limit is bumped to $500,000 if it’s proven that the medical mistakes resulted in catastrophic losses. There are no caps on economic damages for medical malpractice cases.
Under Wisconsin Stat. section 893.55, there is a $750,000 cap on non-economic damages in medical malpractice cases. Wisconsin has no caps on medical malpractice economic damages.
Wyoming has no caps for medical malpractice cases, which includes both economic and non-economic damages.