ERNST & YOUNG
My Baby Has Cerebral Palsy! Can I Sue?
Cerebral palsy is a neurological condition that can develop in utero or shortly after birth. When you get the news that your newborn child has this condition, you may be feeling angry or scared on top of all the other feelings that come from having just brought a new life into the world.
Often, the first reaction is to sue -- but is this justified?
The answer is: it depends.
If a doctor or other health care provider did something to cause your child's cerebral palsy, you may have a case for medical malpractice, in which case you could be entitled to compensation. If not, you won't have a case.
What is Medical Malpractice?
Medical malpractice occurs whenever a healthcare provider caused an injury, illness, or death through negligence. There is much debate in courtrooms about what constitutes negligence, but the basic idea is that if a health care provider did not follow standard procedures and protocols and an injury occurred, he or she can be considered negligent under the law.
Negligence, which is the basis for any malpractice suit, requires both that the doctor deviates from established procedure and that an injury occurs. If your baby has cerebral palsy, that is proof that an injury occurred. To be eligible for compensation, you must be able to prove that the injury occurred because the doctor didn't follow protocol.
Causes of Cerebral Palsy
There are a number of causes of cerebral palsy that could come into play here.
- Premature birth. Children who are born significantly earlier than expected are at risk for physical, mental, and developmental issues, including cerebral palsy. In the event that your child (or children if you have multiples) are born prematurely and develop this condition, then there are two questions you need to get answered. One is whether your health care team did enough to prevent a premature birth in the first place. The other is whether your child(ren) was given adequate treatment after birth to prevent complications.
- Infections during pregnancy. Fevers, disease, and infections during pregnancy can cause brain damage in the developing fetus. The question here is whether your doctors took adequate care to prevent infections or to prevent negative effects on the baby if you got sick.
- Infertility treatments. There is some evidence that infertility treatments are linked to higher rates of cerebral palsy. If your doctor did not warn you of this risk before beginning treatment, that may be considered a breach of proper protocol.
- Jaundice at birth. Some children are born with jaundice, a condition that causes yellowing of the skin and eyes. If this condition is left untreated, it can lead to a more serious condition, and one of the side effects is cerebral palsy. So if your baby was born with jaundice and your health care team didn't take care of this properly, you may have a malpractice case.
- Complications during birth. Complications such as a ruptured placenta during birth can lead to oxygen deprivation and brain damage. Again, the question here is whether adequate care was taken to ensure these complications didn't happen or didn't affect the baby.
What to Do If You Think You Have a Case
If you think you have a malpractice case, you need to talk to a lawyer. But there are a few things you can do before you make your first appointment.
- Document everything you can. You or a family member should take pictures of your baby and write down everything you can remember about what happened before and during birth. If you videotaped your birth, that can also be used as evidence.
- Get your medical records. You have the right to copies of all of your own medical records. Request them from every doctor you saw during your pregnancy.
Once you have these things, make an appointment for a legal consultation.
It is important to consult a lawyer as soon as possible after your child's diagnosis so that you don't miss out on the opportunity for compensation.
Having a child with cerebral palsy may mean having to stay home from work for longer or paying for expensive interventions. If you make a low income and/or are a single mother, it may be hard to pay for all of this!
You need a lawyer who understands these issues and will fight for you. Contact Weltchek, Mallahan & Weltchek today!