Cerebral palsy is a condition that affects approximately 8,000 children born each year. All causes of this disease are still not fully known. However, some causes are well established, including trauma caused during birth or shortly after. When the condition is brought on by the carelessness of another, the law can offer redress for the injured individual. Below is a brief overview of exactly what cerebral palsy is, some of the known causes, and legal claims that can redress the condition under appropriate circumstances.
What Is Cerebral Palsy?
Cerebral palsy is a neurological disorder that can affect muscles, speech, and intellectual abilities. Cerebral palsy ranges from very severe to completely manageable. At its most severe, an individual with cerebral palsy may be wheelchair bounded and unable to speak. These extreme cases account for about 25% of all those suffering from cerebral palsy. Both extreme and less severe cases commonly result in difficulty walking and using fine motor-skills, as well as dysarthria—a speech disorder most commonly manifested via difficulty in articulating words. With the use of a cane or other means, most individuals with cerebral palsy are capable of walking on their own. In only the most extreme cases is an individual completely unable to work in any capacity. More commonly, individuals with cerebral palsy are able to enjoy normal a life, albeit far from free of struggles.
What Causes Cerebral Palsy?
Strictly speaking, cerebral palsy is the result of abnormalities of the brain or damage caused to the brain during critical development stages. Thus, cerebral palsy can occur before birth or after. Most causes of cerebral palsy are simply unknown. Research grants and think tanks routinely attempt to tackle this problem, but modern science hasn’t yet discovered all reasons the brain develops abnormally in the womb or can be damaged after birth. Some causes are definitively known, however. These include infections of the mother during pregnancy and lack of oxygen to the brain shortly after birth. Birth trauma is another well documented cause of cerebral palsy.
What Kinds Of Legal Claims Can Redress Cerebral Palsy?
When cerebral palsy is brought on by trauma or lack of oxygen to a newborn’s brain, there is likely to be legal redress available. All medical professionals, including doctors, nurses, and surgeons, must act with the knowledge and skill expected of those in the particular field. When this standard of care is breached, it can result in cerebral palsy. This is referred to as a claim for medical malpractice. Common circumstances that can form the basis of a medical malpractice claim are failure to properly monitor the baby’s heartbeat just before and during labor of failure to perform a cesarean procedure (C-section) when extremely traumatic or difficult birth should be anticipated. These circumstances fall below the accepted standard of care for medical professionals, meaning that injuries that result to the child can be redressed.
Medical malpractice claims can also redress cerebral palsy brought on by substandard medical treatment of the mother. For example, when the mother suffers from meningitis, the chances of the baby developing cerebral palsy are greatly multiplied. Doctors—particularly obstetricians—are required to test for and diagnosis meningitis and other infections that can endanger a baby during pregnancy. When the doctor fails to do so, the child can bring a claim for medical malpractice even though the substandard care was arguably given to the mother rather than the child.
Though medical malpractice claims are by far the most common type of cerebral palsy litigation, other claims are also worth noting. Product liability claims for defective medical devices or products may also be available. A product liability claim exists when a defective product causes injury, such as cerebral palsy. An example would be a respiratory that malfunctions resulting in a lack of oxygen to a newborn. Another cause of action that may offer redress is a claim for battery. A claim for battery consists of a harmful or offensive contact with the victim, resulting in injury. In re R.G., the court held that a child could maintain an action for battery against his father for striking his pregnant mother’s stomach and causing trauma while he was in the womb. This trauma ultimately caused the child to be born with cerebral palsy, which was compensated for as part of his injuries. Though it was actually the mother that was hit, the court stated that the father’s intent to hit the mother could be transferred to the unborn child.
How Are The Defendant’s Actions Established To Have Caused Cerebral Palsy?
As with any complex medical condition, proving that particular actions caused cerebral palsy requires expert testimony. An expert witness is qualified to testify about very technical subjects, such as science or medicine. The expert must have specialized knowledge, skill, experience, or education. Commonly, the defense will produce a competing expert to offer contradictory expert testimony. This was the case in Bacon v. Mercy Hospital of Ft. Scott. There, the plaintiff offered two experts that only testified that in certain circumstance, certain negligent care by doctors in treating a newborn could cause cerebral palsy. The doctor offered one competing expert that testified that the substandard care could not have caused the cerebral palsy. The Kansas Supreme Court determined that the trial court was correct to rule for the defendants because the plaintiff failed to establish that the substandard care of the doctor in that case was the cause of the cerebral palsy. Without expert testimony to establish that particular actions of the particular defendant, the plaintiff could not recover. This highlights the importance of expert testimony in medical malpractice cases and the need to sufficiently delve into the area of expertise to establish a claim of medical malpractice.
Cerebral palsy is a lifelong condition. Though not all causes of cerebral palsy are known, substandard medical care, trauma, and defective medical products are known to cause the disorder. The law offers legal redress when these are shown to be the case of a particular case of cerebral palsy. Contacting experienced legal counsel is essential for these types of claims. They deal with a complex area of medicine that is not yet fully known. A capable attorney will be sure that full redress is achieved and the accountable parties are held responsible.