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CEREBRAL PALSY

As many as 10,000 children develop cerebral palsy as a result of medical mistakes each year. Usually caused by lack of oxygen to the baby’s brain during birth, it may take months or even years for cerebral palsy to be diagnosed.

Just over a third of babies who have cerebral palsy (CP) are diagnosed in infancy. Seventy percent will receive a diagnosis before they turn one, and some parents will not be told that their child has CP until he or she reaches the age of three or four.

If your child is diagnosed with cerebral palsy, it is important to seek the advice of a birth injury attorney as soon as possible after diagnosis. There are time limits for seeking damages from those responsible for injuring your child, and they vary based on when the diagnosis occurred and whether you or your child are seeking recovery.  If you miss these deadlines you will not be able to seek the financial help you are going to need to ensure lifelong care for your child.

Cerebral palsy is actually the name given to a group of disorders that affect mobility, balance and posture. There are four types of CP:

  • Spastic Cerebral Palsy affects about 80 percent of people with CP. It manifests in stiff muscles and awkward movements.
  • Dyskinetic Cerebral Palsy affects a person’s abilities to control the movements of their hands, arms, feet and legs. This disorder makes walking extremely difficult and can also affect the face and tongue, interfering with the ability to talking, suck and swallow.
  • Ataxic Cerebral Palsy produces problems with balance and coordination. People with this type of cerebral palsy are unsteady on their feet and lack control with some movements making it difficult to write or reach for something.

 

  • Mixed Cerebral Palsy occurs when someone has symptoms of more than one kind of CP. Spastic-dyskinetic CP is the most common type of mixed cerebral palsy.

Cerebral palsy can result from abnormal brain development while the fetus is in utero, or it can result from a lack of oxygen before, during, or after birth. For instance, if the baby spends too long in the birth canal, his or her head becomes compressed, resulting in traumatic brain injury and a lack of oxygen reaching the brain.

Too often, infants born with cerebral palsy are the victims of medical negligence. It is heartbreaking to think that so many children and adults could be living completely normal lives if proper medical care had been provided. In many instances the onset of CP was the result of one or more people providing medical care to you and your baby in a manner that was inconsistent with acceptable standards of care. Common types of negligent behaviors that lead to cerebral palsy include:

  • The physician’s failure to properly diagnose and treat infections of the mother during pregnancy
  • The medical staff’s failure to properly monitor the baby’s heart rate during the labor and birth process
  • The medical provider’s failure to detect the fact that the umbilical cord was prolapsed and to address this emergent situation in time
  • Improper use of medical instruments, such as forceps and vacuum extractors, during delivery
  • Allowing labor to progress for too long a time and then failing to perform cesarean surgery (a C-section) when necessary
  • Too few staff or unqualified staff attending the mother during labor and delivery

In some instances cerebral palsy is suspected right away, as the newborn baby cannot initially breathe or eat on his or her own. Other parents notice the first signs that something is wrong when their baby falls behind in reaching certain physical developmental milestones like rolling over, sitting, and crawling. In some cases, symptoms can be more subtle, resulting in a delay in diagnosis until the child reaches preschool age. 

Symptoms of cerebral palsy vary widely, but some form of motor function impairment is always involved. The brain injuries that cause CP impact the motor cortex, the part of the brain that controls movement. The most common type of cerebral palsy, Spastic Cerebral Palsy, stiffens and permanently contracts muscles, reducing motor functions. Additionally, children with cerebral palsy often have additional health issues, including:

  • Difficulty swallowing
  • Difficulty speaking
  • Vision and hearing problems
  • Difficulty controlling bowels and bladder
  • Difficulty breathing
  • Learning disabilities
  • Seizures

Cerebral palsy is a permanent lifelong condition. As you began to wrap your mind around what having a child with CP means, you realize that you are going to need a lot of help going forward.

You will need doctors and nurses, physical and occupational therapists, and speech and language therapists, among other professionals to help your child succeed. You are going to need adaptive equipment like wheelchairs, special car seats, commode and bath chairs, and other accessible products.

You are left wondering how you will be able to pay for all of this care and equipment. You want to know what went wrong, how this happened to your child, and if it could have been prevented.

We understand your pain and your fear and it is our sincere desire to help. The following provides a starting place in answering your questions about a possible medical malpractice claim. We encourage you to call our office today to learn more about how we can help. 

The amount and types of compensation you recover in a medical malpractice lawsuit will depend on the facts of the particular circumstances surrounding your child’s birth and the cost associated with lifelong care. Generally speaking, however, a Minnesota medical malpractice case where birth injury resulted from negligence would result in recovery of costs for a lifetime of:

  • Medical care and medication
  • Occupational, physical, and physiotherapy 
  • Making any necessary accommodations to the home
  • Adaptive and assistive equipment and technology
  • Special education
  • Lost wages to the parents (or loss of earning capacity if the child is the one bringing suit)
  • Emotional pain and suffering

Minnesota does not have a cap on damages, meaning that you should be able to recover all of the costs that will be incurred for your child’s entire life without limit. In additional, in some cases you could even recover punitive damages, which do not have to be linked to the actual costs of care but, instead, are designed to punish the people who caused the harm.

The best way to determine if you have a case for medical malpractice and to determine what your recovery might be is to undergo a case review with one of our experienced medical malpractice attorneys.

A successful cerebral palsy lawsuit requires that your legal team collect evidence that your child’s condition is the result of negligent behavior on the part of the medical staff and/or the hospital and any other people or institutions responsible for the birth injury.

Call our Minnesota Medical Birth Injury Lawyer today at 612.349.2723 for a free consultation, or fill out our free consultation form below.

THE MADIA LAW WAY

We have a process that works in getting exceptional results for our clients. 

We are trial lawyers who prepare every case for trial from Day 1. Investigation and legal research are the first things we do, and we spend a lot of time on them. Because we haven’t filed the case yet, we have complete control – the defendant has no say and we want to use this time wisely.  We interview witnesses that can help us prove the case.  We’ll ask you for all relevant documents in your possession and review those carefully as well.  We also will spend some time conducting legal research about unique issues in the case.  We pull the jury instructions that the judge will ultimately charge the jury with after closing arguments at trial. 

Our next step is typically to send a demand letter to the defendant. In the letter, we thoroughly lay out: the facts surrounding the defendant’s misconduct; the applicable law (including statutory and case citations) that make clear that the defendant broke the law; an analysis of your damages and the defendant’s monetary exposure; a demand for a monetary amount to settle the claim; and an instruction to preserve all relevant evidence, including electronic evidence. The point of this letter is to give the defendant a chance to do the right thing and pay a fair amount before litigation, and to give the defendant an opportunity to present any defenses or evidence it wants us to consider before moving forward.  Sometimes we skip the demand letter if there are strategic reasons to move straight to filing, but we typically give defendants a chance to do the right thing.

If early negotiations fail, great – we file a Complaint and serve the defendant with it. A Complaint is a legal document that states the facts of what happened and alleges how the defendant broke the law. It formally starts the lawsuit.  Many lawyers draft complaints in a general and relatively vague way, just to get it done and filed – because that’s all that’s really required.  We take a different view. We view the Complaint as our first chance to tell your story to the judge, and we take it seriously. So we draft detailed complaints and include legal citations to statutory and judicial authority on unique points.  Sometimes we’ll include a number of exhibits, diagrams, or other demonstrative aids to help the Court understand our claims.  A secondary benefit of this approach is that defense lawyers reading the Complaint can become educated on the problems of their case and the state of the law – sometimes this leads them to reach out to us shortly after service of the Complaint to re-initiate settlement negotiations.  Of course, by that time, the price for settlement has gone up.

Some lawyers view written discovery as a necessary evil – something to get done and out of the way before depositions.  Not us.  Written discovery is a gift and an opportunity.  We spend a great deal of time crafting requests for documents and interrogatories (questions for the defendant to answer in writing) that are specific, detailed, and tailored to get what we need to prove our case.  Many lawyers – even great ones – think written discovery is a waste of time because defense lawyers typically answer them on behalf of their clients and can try to stonewall with legalese and objections.  We view this as a wonderful opportunity.  In our experience, most defense lawyers can’t help themselves when answering discovery: they over-state their defenses and make assertions that their clients will not be able to support in testimony. So we get to commit the defendant to defenses that they can’t back up, leading to contradictions, confusion, and chaos in their depositions later on.  We also use Requests for Admission – which many lawyers don’t.  The Federal Rules and Minnesota Rules of Civil Procedure allow us to ask defendants to “admit” certain facts.  We send them RFAs that are very difficult for them to deny.  Of course, they do it anyway, but that sets them up later for cost and fee-shifting, which the Rules mandate for defendants that deny RFAs that are later proven true.  And usually, we can get the defendants’ own witnesses to admit facts that their defense lawyers denied in RFA.  That’s a great situation that leads to more chaos and confusion on the defense side.

One last point on written discovery – we send multiple waves of it throughout discovery.  We typically send 3 or 4 sets of written discovery requests to defendants throughout discovery.  This compounds the problems for them, because the defense lawyers continue to overstate their defenses, but now run into contradictions from not just the defendant witnesses’ deposition testimony, but also their own previous discovery responses.  This makes for a great record that we can present to the judge at dispositive motions, and use for impeachment at trial.

This is our chance to question relevant witnesses, on the record with a court reporter (we typically videotape important depositions as well). We get to confront the defense witnesses with all of the evidence we’ve developed through written discovery and document production. By this time, the defendant put its witnesses in an impossible position through its written defenses, which are often untrue and indefensible.  So the witness has to either lie to support the defense, or admit it’s not true.  That’s a dilemma that works for our clients either way, no matter which option the witness takes.  We use depositions to expose contradictions, create a record for dispositive motions, lock witnesses into their stories so that we can impeach them later at trial, and sometimes, to show defense lawyers how hopeless their case is.  We often calls from defense counsel shortly after depositions of their clients, seeking to re-start settlement negotiations.

The defendant will usually make a motion for summary judgment after discovery, asking the Court to throw out the case without having a jury trial. Because we’ve hit discovery so hard – both through written discovery and depositions – this is a tough motion for defense counsel to write in our cases.  We draft our response for the Court and now get to bring everything together: the admissions, contradictions, nonsense, and obvious fact disputes that we’ve uncovered through discovery.  We tell a compelling story that wraps everything together for the Court and makes clear that the defense motion has to be denied, and the defendant needs to face a jury for its conduct.

Sometimes, we’ll even make an affirmative motion for summary judgment, asking the Court to grant judgment in favor of our client without a trial. These motions are generally rare for plaintiffs to make, because the defendant can usually point to some fact dispute on its intent or some other factor that necessitates a trial. But we make affirmative summary judgment motions significantly more than is typical for plaintiffs, and that’s because the work we put in during discovery helps build a fantastic record to do so.

After the Court denies the defense motion for summary judgment, the defendant has only 2 options: 1) do the right thing and pay you a fair amount to our client to settle your claim (usually much, much more at this point than the defendant could have paid at the beginning of the case to settle); or 2) face a jury for its conduct and risk an enormous verdict. This is the dilemma that we have been creating and forcing the defendant into for the entire case. We’ll engage in settlement negotiations at this point from a position of extreme strength, mainly because most defendants are (rightly) terrified of facing a jury to defend their conduct.

This is, candidly, our favorite part of the case – why we went to law school: to hold the powerful accountable before juries.  We prepare heavily for trial, including: detailed witness preparation, focus groups, and mock trials.  At this point, the potential outcomes and consequences for the defendant are much more severe than if it simply did the right thing at the beginning of the case and paid a fair amount to compensate our client for its misconduct.  As we advocate to the jury for our client, we’re also mindful of protecting the record so that defendants will be unsuccessful in attacking the verdict in post-trial motions or appeal.

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