Cerebral palsy (CP) is a group of disorders that affects movement, posture, and muscle tone. It is the most common motor disability in children. CP has two potential causes: abnormal brain development or damage to the brain during pregnancy, birth, or toddlerhood.
Children who have CP may require medical treatment, therapy, surgeries and attendant care both in childhood and throughout their lives. If your child’s cerebral palsy was caused by medical negligence, then you may consider looking into a lawsuit against the at-fault healthcare professional. A team of experienced Canada cerebral palsy lawyers near you can help determine if you are able to file a claim and, if so, what compensation you may be entitled to under the laws of your province.
When Can a Lawsuit Be Filed for Cerebral Palsy?
Cerebral palsy can be caused by abnormal brain development or by damage to the developing brain. This often occurs during pregnancy, but may also happen during labour and delivery or infancy. Potential causes of CP include:
- Gene mutations
- Maternal infections that affect the fetus
- Fetal stroke
- Bleeding in the brain
- Infant infections
- Traumatic head injury
- Lack of oxygen during labour or delivery (birth asphyxia)
Generally, a family can only file a lawsuit for CP if the medical professional failed to uphold a standard of care that caused their child’s disability. This is known as medical negligence or sometimes medical malpractice.
There are a number of ways that medical negligence may lead to CP, such as:
- Failure to detect maternal infections during pregnancy;
- Failure to identify risk factors during pregnancy;
- Failure to perform a caesarean section (c-section) when necessary;
- Failure to detect signs of fetal distress;
- Failure to properly use delivery tools (forceps or vacuum); and/or
- Failure to treat severe jaundice in a newborn.
If you notice early signs of CP, take your baby to a specialist for a full evaluation. If you or the doctor believe that medical negligence may have played a role in your baby’s cerebral palsy diagnosis, you may be able to file a lawsuit against the treating medical provider.
Who Can File a Cerebral Palsy Lawsuit?
A CP claim is a type of medical malpractice lawsuit. To file this type of lawsuit, you must establish that there was a patient and provider relationship, that medical negligence occurred, and that this negligence was the proximate cause of any injuries suffered by a patient. The specific procedures and standards for filing a medical malpractice lawsuit may vary by province.
In a medical malpractice lawsuit involving an adult patient, they are able to file a claim on their own behalf. When the issue involved is a birth injury, however, the child typically cannot file a lawsuit for themselves. Instead, their parents typically file a lawsuit with the goal of obtaining the financial resources necessary to provide for their child.
Through a birth injury lawsuit, a family may be able to recover financial compensation for:
- The cost of future care (such as attendant care, therapy, medical supplies and medication, and home renovations);
- Loss of income/loss of earning capacity;
- Non-pecuniary damages (pain and suffering);
- Out-of-pocket expenses incurred by the parents; and/or
- The parents’ time spent providing for their child’s disability-related needs.
Depending on the facts of your case, you may be entitled to other forms of compensation. A skilled and experienced cerebral palsy lawyer can work with you to help you determine what compensation you and your family may be entitled to and what to expect in a cerebral palsy settlement.
Steps to File a Cerebral Palsy Lawsuit
The first and most crucial step in any cerebral palsy lawsuit is to schedule a free initial consultation with a birth injury lawyer. They will listen to your story, advise you of your options, and help you decide whether it makes sense to proceed with a CP lawsuit.
If you decide to pursue a claim, then the next step will depend on the province or territory where you live and where your baby was born. However, there is a certain process that most provinces follow, as outlined below.
First, your lawyer will file a Statement of Claim or Notice of Civil Claim. This legal document will set out the facts of the case and will make a demand for damages (compensation). Because the injury victim will typically be under the age of 18 and has a disability, then this claim will be commenced through a litigation guardian who will act in the child’s best interests. In most cases, the litigation guardian(s) are the child’s parents.
Once a Statement of Claim has been filed, then the at-fault party (defendants) will have an opportunity to submit a written response. This is known as the Statement of Defence or Response to Civil Claim.
Next, the parties move into the discovery phase. Discovery is an opportunity for each side (plaintiffs and defendants) to exchange information about the case. The documents handed over (such as medical records) and the testimony given during examinations can play a significant role in the settlement phase of the case.
In a medical malpractice claim, medical expert witnesses play an important part. During the pre-trial process, the parties will exchange expert witness reports that set out opinions about how the brain damage or brain injury occurred that caused the cerebral palsy.
Once discovery has been completed, the judge will usually schedule pre-trial conferences to discuss the issues and facts of the case. The goal of these conferences is usually to determine if the case may be settled or if it should be scheduled for trial.
In some jurisdictions, mediation is required before a case can proceed to trial. The purpose of mediation is for the parties to come together to determine if the legal action can be resolved via settlement.
If the parties cannot negotiate a settlement or achieve one through mediation, then the case will proceed to trial. During trial, each side will have an opportunity to present evidence, question witnesses, and make arguments. A judge or jury will then render a verdict. If necessary, one or both parties may file an appeal of the decision.
Why File a Cerebral Palsy Lawsuit?
When you are already dealing with the life-changing news that your child has CP, you may not have the bandwidth to even consider pursuing legal action. Once this fog has lifted, however, you may be left wondering whether you should file a medical malpractice lawsuit for your child’s birth injury.
There are a number of good reasons to file a CP lawsuit. First, the reality is that medical care and support for a child with cerebral palsy can be expensive. A lawsuit can provide you with the money that you need to pay for home renovations, attendant care, assistive devices, and more. It can also compensate you for your own time spent caring for your child’s disability-related needs.
Second, many families go through a grieving process when they receive their child’s diagnosis and may wonder what their child could have been or what they could have accomplished but for their disability. In cases where a child’s CP severely limits their ability to work or even live independently, a lawsuit can provide money to compensate them for their lost income or lost earning capacity.
Third, along the same lines, a birth injury lawsuit for CP will often result in a settlement or verdict for non-pecuniary damages. While the Supreme Court of Canada has capped these damages, they are still an important way to compensate your child for the pain and suffering that they will experience as a result of their cerebral palsy.
Fourth, beyond money, filing a lawsuit can allow your family to achieve a measure of justice for a preventable birth injury. You may not ever be able to undo the harm that the medical staff caused, but you can hold them accountable for it – and potentially warn other families about what happened. For many families, this is the most important reason to file a CP lawsuit.
When Is a Settlement Offered for a Cerebral Palsy Lawsuit
The timing of a settlement for a CP lawsuit depends on several factors. If negligence is clear based on medical records and the testimony of medical experts, then the medical professional may offer a settlement relatively soon in the process. If there is some question as to negligence, then it may take months or even longer to achieve a settlement.
Having an experienced birth injury lawyer by your side can increase the likelihood of obtaining a favorable settlement quickly. While there are no guarantees, a skilled lawyer can help you file a cerebral palsy birth injury lawsuit and work with you to get the money that you need to move forward with your life.
If your baby suffered a birth injury that led to a cerebral palsy diagnosis, then the case should be considered by a team of experienced birth injury lawyers. Contact BILA today at 1-800-300-BILA or via our online contact form for more information about a potential legal claim and to discuss your child’s birth injury case.