Cerebral Palsy and Medical Malpractice

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Cerebral palsy and medical malpractice often go hand in hand. This lifelong condition usually requires large treatment expenses. If you think medical mistakes caused your child’s cerebral palsy, there are options you can take to help you get compensation for medical expenses, pain, suffering, and more.

Cerebral Palsy Birth Injury and Medical Malpractice Causes

Children often develop cerebral palsy during birth, primarily from lack of oxygen to the brain, delivery mistakes that cause trauma, or premature delivery.[1] Other instances that cause birth injuries that lead to cerebral palsy can include physicians failing to:

• Accurately detect and treat maternal infections[2]
• 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 birth injuries almost always could have been prevented, physicians may be liable for damages.

For instance, a physician who pulls too hard on an infant’s head during delivery may end up hurting the baby, but the doctor could have avoided it 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 costly, averaging over $1 million for a lifetime of care.[3]

The costs are 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?

Medical negligence is not always to blame for a child developing cerebral palsy. To file a valid medical malpractice case, ensure that your case meets the following qualifications:

• 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 with whom you’ve never had an appointment does not qualify.
• The medical staff member deviated from an accepted standard of care.
• The deviation of a physician or medical staff caused your child’s cerebral palsy.
• The cerebral palsy diagnosis resulted in significant damages to you and your child.

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 before filing if you do have a valid claim.

How Much Compensation Can a Medical Malpractice Case Bring?

Compensation for a cerebral palsy medical malpractice case will depend on several factors, including how long your child has had the disorder, how it happened, and the severity of the disease. 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 to the compensation amount is if your state allows non-economic damages in medical malpractice cases.

Non-economic losses include physical and emotional pain, stress, anxiety, and another factor that takes away from the enjoyment of life because of the disorder.

Some states also have cap limits on medical malpractice cases, meaning that the amount of money you’re entitled to win could be limited to a maximum amount. However, if you live in one of the 15 states with no caps on medical malpractice cases, you won’t be limited to the amount you can receive.

Will My Compensation Be Capped If I Win?

Again, there is a possibility that the amount of money you can receive from a medical malpractice lawsuit will be capped, depending on your state.

Many states limit how much you can get from a medical malpractice lawsuit to balance extraordinarily high jury award amounts. The medical community suggests that capped costs help to protect the health care industry.

Regardless, there may be caps on non-economic damages, which include pain and suffering and emotional distress. States don’t limit economic damages, such as lost wages and medical expenses, which typically include the past, present, and estimated future costs.

Currently, some states cap, or limit, non-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. A trial happens when the defendants refuse to settle the lawsuit out of court or when both parties cannot agree on a settlement amount. The majority of cases 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 patient consent, medical malpractice may have occurred.

However, in certain instances, informed consent isn’t required, such as if a patient is unconscious and a family member 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, it’s typically considered 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. Plaintiffs can sue nurses, medical technicians, therapists, and even the hospital where the malpractice occurred.

What’s the Difference Between Economic and Non-Economic Damages?

There are two primary forms of compensation in medical malpractice cases: economic damages and non-economic damages. Financial losses 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 other specialized care costs
• Home accommodation costs

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
• Disfigurement

Cerebral Palsy Medical Malpractice Caps by State[4]

Alabama

Alabama is one of the few states that doesn’t have a cap on non-economic damages in medical malpractice cases.

Alaska

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

Arizona is another one of the few states that don’t cap non-economic damages in medical malpractice cases.

Arkansas

Arkansas does not cap non-economic damages.

California

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

Colorado has a unique economic cap, known as the umbrella cap, which mandates that economic damages are capped at $1 million. However, under special circumstances, the $1 million cap is lifted if the courts feel that the limit is unfair, given the status of the injury and disorder. Non-economic damages are capped at $300,000.

Connecticut

Connecticut courts review non-economic awards of over $1 million and may reduce an award if deemed excessive.

Delaware

Delaware is another state that doesn’t have caps on economic and non-economic damages in medical malpractice cases.

Florida

Florida legislators passed caps on non-economic damages for both medical malpractice personal injury and wrongful death. The state Supreme Court declared them unconstitutional, so there are currently no caps.

Georgia

Georgia doesn’t have a cap on economic damages. In 2010, the Georgia Supreme Court deemed that the non-economic damages caps in the state are unconstitutional, affecting the amount of compensation in future cases.[5]

Hawaii

According to the 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.

Idaho

Per Idaho Code section 6-1603, non-economic damages in medical malpractice cases have a cap of $250,000. This is to be adjusted annually according to the average wage in the state.

Illinois

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.

Indiana

According to Indiana Code Chapter 34-18-14, medical malpractice cases have a damages cap at $1.8 million for healthcare treatment mistakes and errors. However, individual healthcare providers cannot be liable for more than $500,000. The Indiana Patient Compensation Fund will pay any amounts above $500,000. The $1.8 million damages cap includes both economic and non-economic damages.

Iowa

Iowa currently caps medical malpractice injury or death non-economic damages at $250,000.

Kansas

The Kansas Supreme Court declared non-economic damages caps unconstitutional.

Kentucky

Kentucky has no caps on medical malpractice cases, which include both economic and non-economic damages.

Louisiana

The state of Louisiana caps both economic and non-economic damages at $500,000. The state Patient’s Compensation Fund will pay any amount over $100,000 in medical malpractice cases against physicians, up to $500,000. However, this can be increased if future medical care for the victim rises. There is no cap for future medical expenses.

Maine

Maine is one of the few states that doesn’t place a cap non-economic damages in most cases. The exception is wrongful death. Under Maine Revised Statutes Title 18A section 2-804, wrongful death cases have a cap of $500,000.

Maryland

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.

Massachusetts

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

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 error causes 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

Minnesota has no caps on medical malpractice cases, which include both economic and non-economic damages.

Mississippi

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

There are no caps on non-economic damages in Missouri after the state Supreme Court ruled them unconstitutional in 2012.

Montana

Montana doesn’t have a cap for economic damages. However, non-economic damages in medical malpractice cases are capped at $250,000.

Nebraska

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 between December 31, 1992, and December 31, 2003, the damages are capped at $1.25 million.

Nevada

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

New Hampshire is a part of the select states with no caps on damages in medical malpractice cases.

New Jersey

Under New Jersey Statutes section 2A:15-5.14, total damages per defendant are limited to either $350,000 or up to five times the amount, whichever is higher (economic or non-economic damages).

New Mexico

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.

New York

New York is one of the few states that doesn’t have a cap on medical malpractice cases and how much you can receive, including economic and non-economic damages.

North Carolina

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

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.

Ohio

According to Ohio Rev. Code Ann. § 2323.43, non-economic medical malpractice damages in Ohio cannot go over three times the plaintiff’s economic costs or over $250,000, whichever is greater. The total non-economic costs cannot exceed $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

Oklahoma’s state Supreme Court ruled non-economic damages caps unconstitutional in 2019.

Oregon

There are no non-economic damages caps in Oregon after the Supreme Court declared them unconstitutional.

Pennsylvania

Pennsylvania has no caps on economic and non-economic damages in medical malpractice cases, but there are certain caps on punitive damages.

Rhode Island

Rhode Island has no caps on medical malpractice cases, which include both economic and non-economic damages.

South Carolina

Under S.C. Code of Laws Title 15, Chapter 32, non-economic damages in medical malpractice cases are capped at $350,000 for a claim against one healthcare provider. However, if the case is against more 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.

South Dakota

South Carolina law limits total damages to $500,000.

Tennessee

For medical malpractice cases, Tennessee has a $750,000 cap. Still, 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 wrongful death. There are no economic caps for medical malpractice lawsuits in Tennessee.

Texas

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 suit is against multiple health care facilities. There is no economic cap in Texas for medical malpractice cases.

Utah

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.

Vermont

There are no damages caps on either economic or non-economic damages in Vermont.

Virginia

Virginia’s medical malpractice caps are set for both economic and non-economic damages combined and consist of:

– 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

Washington is one of the few states with no caps on both economic damages and non-economic damages. The state Supreme Court ruled such caps unconstitutional in 1989.

Washington, D.C.

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

West Virginia has a cap of $250,000 in non-economic damages in medical malpractice lawsuits. Still, this limit is bumped to $500,000 if proven that the medical mistakes resulted in catastrophic losses. There are no caps on economic damages for medical malpractice cases.

Wisconsin

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

Wyoming has no caps for medical malpractice cases, which include both economic and non-economic damages.