It is an unfortunate truth that serious disorders like cerebral palsy are often associated with preventable mistakes made by medical professionals during pregnancy and childbirth, and that such conditions can have far-reaching and life-altering repercussions for victims and families. Because those challenges can be immense, families should know and understand their rights when it comes to pursuing a birth injury lawsuit, holding at-fault parties accountable, and securing needed compensation.
At Freidin Brown, P.A., our Miami-based trial attorneys represent victims and families throughout Florida in matters involving preventable birth injuries – including cases in which children suffer from cerebral palsy as a result of medical negligence. We know families have many concerns following a birth injury of this severity, as well as many fears about the future. As advocates, we make it our job to help these families understand their rights as victims – including the right to recover their damages.
Medical Malpractice, Birth Injuries, & Victims’ Rights: The Basics
To help you better understand your rights as a victim, it is important to first understand the context in which those rights exist. Specifically, that means understanding civil personal injury lawsuits based on medical malpractice, and the key elements of a birth injury claim.
Medical malpractice – Medical malpractice is the term used to classify certain injury or death cases (also known as torts) in which plaintiffs (the victims) allege their harm was caused by a health care provider’s failure to meet their professional “duty of care.” In birth injury cases, victims commonly claim a medical professional hurt them as a result of negligence, failed to properly address and treat an illness or complication, or failed to accurately diagnose and identify complications that increased risks of birth injuries, among other claims. Prevailing in a medical malpractice case requires victims to prove several core elements of their claim, including:
- Duty of Care – When we talk about “duty of care,” we refer to the legal duty a doctor or some other type of health care professional owed their patient. In a doctor-patient relationship, physicians are obligated to treat patients in accordance with customary practices of their profession. More specifically, this means using a degree of care any reasonably skilled medical professional would use under the same or similar circumstances. This duty of care exists in formal doctor-patient relationships, including those between doctors and pregnant mothers.
- Breach of duty – Proving a breach of duty is a critical part of any personal injury lawsuit, and it looks different in every case. Car accident cases, for example, focus on a driver’s failure to uphold their “legal duty” to safely operate a vehicle. In malpractice claims, victims must prove how a medical professional failed to follow proper procedures as defined by their duty of care. In matters of cerebral palsy, this may mean proving how a doctor failed to identify or properly address a complication during pregnancy that a reasonably competent doctor would be expected to address, or how a nurse failed to abide by standard policies or practices to properly monitor the fetal heart rate and signs of distress during delivery.
- Damages – Birth injury lawsuits, and personal injury claims in general, allow victims who suffer harm and losses as a result of negligence to recover financial compensation. These damages can include any number of economic and non-economic losses that directly result from the underlying incident and the injuries it caused. Damages typically sought in birth injury cases include things like medical expenses, pain and suffering (both physical and emotional), and lost capacity to earn income in the future, among others.
The Right to Damages: Who Can File a Cerebral Palsy Lawsuit?
Our laws place limitations on who can and cannot recover damages in civil injury cases. In birth injury lawsuits, parents of the injured child are usually the ones who file claims against at-fault parties, though other legal guardians can as well. These parties may pursue damages which affect both themselves and their child, but only have the right to do so when they can prove the elements of a malpractice claim.
Although victims injured by negligence have the right to damages, understanding when your child’s cerebral palsy resulted from medical negligence, and whether you have such a right, can be difficult. Consulting with experienced lawyers and experts is critically important, since only they can determine whether the medical provider was a legal cause of the cerebral palsy. Some examples of actions (or inactions) of a medical provider leading to cerebral palsy include:
- Failures to diagnose and treat risk factors and complications (i.e., infections, maternal illnesses, umbilical cord problems, position or size of baby, etc.)
- Delays in delivering a baby resulting in oxygen deprivation, including a delayed C-section or a failure to perform a C-section
- Improper use of forceps and vacuum extractors during delivery
- Failures to properly monitor signs of fetal and/or maternal distress
- Medication errors, including improper use of drugs for inducing labor
Recovering Damages: What Does Cerebral Palsy Compensation Cover?
Cerebral palsy is a permanent and costly condition, meaning the expenses it can create are often overwhelming for families. In fact, the U.S. CDC estimates the average lifetime cost for a victim with cerebral palsy is around $1 million, though that number can vary depending on various factors, including the severity of the condition, whether other injuries are present (such as brain injury), and other unique issues in a case.
This financial toll in and of itself is why the right to damages exists – most families simply cannot afford to care for a child with such needs. Fortunately, birth injury lawsuits offer families the right to recover both their economic (medical expenses, lost ability to earn income) and non-economic (pain and suffering) damages.
Economic Damages – Economic damages available to families in cases of cerebral palsy birth injuries can be calculated, but those calculations need to factor in both past damages incurred prior to the conclusion of a case, and what can be reasonably be expected given the nature of the condition and it’s lifelong impact. For example, families commonly seek recoveries for economic damages that include:
- Past and future medical expenses – Medical damages can include both past medical bills and the costs of any expected future surgical procedures, routine exams, specialists, etc. By working with relevant medical professionals and evaluating similar cases and typical needs of a child with cerebral palsy, future medical expenses can be effectively calculated.
- Past and future lost wages – Parents with a child born with cerebral palsy are often forced to miss work in order to care for their child and their needs, both shortly after birth or a diagnosis, and throughout their early development. These financial losses can be calculated as both past and future damages.
- Medical Devices and medications – Cerebral palsy may necessitate the need for medications and medical devices throughout a child’s life. Costs for things like assistive equipment (wheelchairs or braces), pharmaceutical products, and technological devices can be recovered.
- Estimated lost earnings – Cerebral palsy can place limitations on a child’s expected ability to work and earn meaningful income. When a prognosis reveals substantial disabilities and future difficulties a child may face in terms of employment, families may seek damages for diminished earning capacity, which is an estimation of lost future earnings. These damages can be difficult to calculate, as a child born with cerebral palsy has never yet been employed. However, the use of data and collaboration with relevant experts can help identify a reasonable calculation.
- Other economic damages – There are other tangible financial damages families may seek in cerebral palsy lawsuits, provided they are able to illustrate how those damages arise from their child’s disorder. Examples may include the costs of special education to address learning and developmental needs, physical therapy, psychological services (for parents and/or children), expenses associated with making homes and vehicles more accommodating for a child with cerebral palsy, and other relevant financial losses.
Non-Economic Damages – Not all damages can be backed by objective price tags or calculations. Some reflect the most intangible losses parents and children born with cerebral palsy can endure. Pursuing these non-economic damages can be difficult, but given the profound emotional nature of such as situation, they can amount for a large portion of both past and future damages. Additionally, thanks to a recent decision from the Florida Supreme Court, non-economic damages in medical malpractice cases are no longer limited by law. Examples of these types of damages include:
- Past and future pain and suffering of the child
- Past and future emotional injuries, which can include the mental anguish and grief parents may experience following a preventable birth injury or a diagnosis and those which children themselves may confront as they age and mature
- Loss of consortium, companionship, and quality of life caused by the condition, which can include the suffering of families, especially in cases involving severe injuries and brain damage
Understanding what’s recoverable can help you gain a better picture of how cerebral palsy cases and damages look, as well as the importance of pursuing a claim and working with experienced attorneys when you do. However, it’s important to note that every case is different, and that your damages depend on the unique facts of your case.
How Freidin Brown, P.A. Can Fight for the Recovery You Deserve
It’s abundantly clear how medical malpractice and cerebral palsy can impact families, which is why making the most of your right to damages is so important. Whether damages are physical, emotional/psychological, or financial in nature, there is a need to ensure full and fair compensation – both as a form of justice and recompense, and as a practical matter to ensure children and families have the means to effectively address the many needs created by cerebral palsy over the course of their lives.
It should be mentioned that while victims have the right to damages, there is never any guarantee that compensation will be awarded, or that it will be enough to fully account for all past and future damages. That’s due in part to the complexity of these cases, the medical evaluations they entail, and the calculations they require, as well as the fact that defendants and insurance companies are focused on protecting their bottom line. These parties know cerebral palsy cases can be high-value claims, and their concerns are often centered on profits rather than the needs of real people. As such, disputes and denials are common, as are efforts to minimize payouts as much as possible.
Our goal is to make sure families are not victimized a second time during the course of litigation. Over the years, our legal team at Freidin Brown, P.A. has cultivated the knowledge, resources, and insight to effectively handle these cases, protect the rights of clients, and fight for the maximum compensation possible. During a free and confidential consultation, we can review the facts of your case, elaborate on your rights when it comes to damages, and explain how we may be able to assist in your fight for justice.
Call (888) 650-0918 or contact us online 24/7 if you wish to speak with a Miami birth injury attorney. Freidin Brown, P.A. proudly serves clients throughout Florida.