Guide to Cerebral Palsy and Birth Injury Law

Cerebral palsy birth injury lawsuits

Find out when a birth injury lawsuit is appropriate if your child lives with CP

In some cases, cerebral palsy is the result of a healthcare professional’s negligence. In these cases, a medical malpractice lawsuit can help you recover some of the damages caused by the condition.
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Cerebral palsy (CP) is the most common motor disability in children. Studies from around the world show that roughly 3 out of every 1,000 children develop the disorder.

In many cases, cerebral palsy can’t be prevented. But in other cases, the disorder is caused by the negligence of healthcare providers.

In this article, we’ll take a close look at cerebral palsy and help you determine if a birth injury lawsuit is appropriate.

What is cerebral palsy?

CP refers to a group of disorders that impact a person’s ability to move and maintain balance. All people with CP have problems with movement and posture, but many also have other conditions, including intellectual disabilities, seizures, problems with vision, problems with hearing, and problems with speech.

There are 3 types of CP:

1. Spastic cerebral palsy (SCP)

SCP is the most common type of CP (affecting approximately 80% of people with CP).

People with SCP have increased muscle tone, which results in stiff movements. There are 3 types of SCP:

  • Spastic diplegia mostly impacts the legs. People with spastic diplegia may have difficulty walking because tight leg muscles cause their legs to turn inward.
  • Spastic hemiplegia results in 1 side of the body being in a constant state of contraction. Spastic hemiplegia is the “1-sided version” of spastic diplegia.
  • Spastic quadriplegia affects all 4 limbs, the person’s trunk, and their face. People with spastic quadriplegia usually can’t walk and often have some other disability, such as an intellectual disability, seizures, or problems with vision, hearing, or speech.

2. Dyskinetic cerebral palsy (DCP)

People with DCP have problems controlling the movement of their hands, arms, feet, or legs. Sometimes their face and tongue are affected and they have difficulty sucking, swallowing, and talking.

DCP can be present in one part of the body (known as “focal dystonia”) or throughout the whole body (known as “generalized dystonia”). Regardless, the involuntary movements associated with DCP become particularly noticeable when the person attempts to move.

3. Ataxic cerebral palsy (ACP)

ACP is the least common type of CP. ACP is characterized by poor balance, coordination, and depth perception. Roughly 5% of people who have CP have ACP.

What causes cerebral palsy?

CP is caused by damage or abnormal development in the parts of the brain that control movement.

For the majority of children with CP, the damage or abnormal development occurred before, during, or shortly after birth. CP that is present from birth is called “congenital CP” and can be caused by any of the following:

  • Damage to the white matter of the brain. The white matter in the fetus’s brain is most sensitive to injury from 26-34 weeks of pregnancy, but damage can happen at any time during pregnancy.
  • Abnormal brain development. Infections, fever, trauma, and gene mutations can all cause the brain to develop abnormally.
  • Bleeding in the brain. Bleeding in the brain, such as the kind that occurs when a fetus suffers a stroke, can cause damage to the brain. 
  • Lack of oxygen in the brain. The brain can become damaged if it goes without oxygen for even a short period of time. Low blood pressure in the mother, a torn uterus, detachment of the placenta, problems with the umbilical cord, or trauma to the infant’s head during labor and delivery can all prevent oxygen from getting to the newborn’s brain.
  • Infections during pregnancy. Infections can increase certain proteins that circulate in the infant’s brain during pregnancy. These proteins can cause inflammation, which can lead to brain damage.

A small percentage of people with CP develop the disorder more than 28 days after birth. This type of CP is called “acquired CP” and can be caused by:

  • Brain damage in the first few months or years of life
  • Infections, such as meningitis or encephalitis
  • Problems with blood flow to the brain due to stroke, blood clotting problems, abnormal blood vessels, a heart defect that was present at birth, or sickle cell disease
  • Head injury from a car accident, a fall, or child abuse

What legal options exist?

CP isn’t always the result of someone’s carelessness.

What’s more, the exact causes of CP, in many cases, are unknown.

On the other hand, sometimes CP is caused by someone else’s carelessness such as a healthcare professional. In these cases, you may be able to file a medical malpractice lawsuit against the healthcare professional.

Facing factsIn a recent survey, 76% of obstetricians in the United States reported having faced litigation at some point in their careers. Sixty percent of malpractice insurance premiums paid by obstetricians cover lawsuits for alleged birth-related CP.

In order to establish a medical malpractice claim in most states, you need to prove that:

  • Your healthcare provider failed to exercise the degree of care and skill expected of a reasonable healthcare provider in the same profession, and
  • The failure was the legal cause of your infant’s injury.
Real Life Example: In Tennessee, a teen was awarded $15.1 after he filed a lawsuit against the Fort Campbell Army Hospital.

In the lawsuit, the mother of the teen alleged that she was not fully informed of the dangers of a vaginal delivery given her medical history, small stature, and recency of her last pregnancy.

The teen sustained a severe brain injury as the result of oxygen deprivation toward the end of his mother’s labor. The oxygen deprivation caused CP and other neurological deficiencies.

“It’s heartbreaking to know I went into the hospital with a healthy son and that his injuries never should have happened,” the boy’s mother said. “I’m grateful Judge Trauger awarded enough to fund my son’s life care plan and to compensate him for his disabilities.”

What damages can be recovered in birth injury cases?

Damages are intended to compensate a person for the losses associated with their injuries. In CP cases, these losses can be significant.

Facing factsAccording to a study published in 2003, the per-person lifetime cost estimate for a person with CP is $921,000. Adjusted for inflation, that number rises to $1.3 million in 2020.

Most states allow people with CP to recover economic and non-economic damages:

  • Economic damages are damages that have an objective monetary value, such as the medical expenses and lost wages that stem from CP.
  • Non-economic damages are damages that have no easily identifiable monetary value, such as the pain and emotional distress suffered as a result of CP.

Additionally, some states allow punitive damages if the defendant’s actions were particularly egregious.

However, you should be aware that many states place caps on the amount of damages you’re allowed to recover in a medical malpractice lawsuit.

To help ensure you receive the damages you deserve, keep track of all the CP-related medical expenses, as well as the day-to-day impact of the disorder:

Damages/Expenses Worksheet
Damages worksheet to track expenses for your injury claim (medical treatment, property damage, lost wages, prescriptions)
Download in PDF format

Post-Accident Journal Form
Sample accident journal/diary to help you document the effect on your daily life
Download in PDF format

Statute of limitations in CP cases

The term “statute of limitations” refers to the amount of time you have to file a lawsuit before your right to file a lawsuit expires.

Every state has a different statute of limitations for CP claims, but in most states, the statute of limitations is between 2-3 years from the date of the injury.

But as is generally the case in the law, it’s not quite as simple as it sounds.

For example, the statute of limitations is generally much shorter if you’re suing a government entity (such as a government-run hospital).

What’s more, the statute of limitations might not start running the date the injury occurs. Rather, the statute of limitations might start at the time you discover the full extent of your injuries.

Do I need a birth injury lawyer?

CP cases are particularly difficult to litigate without an attorney. To establish a CP claim, you’ll need to prove that someone else caused the CP by acting negligently or failing to act reasonably. Because medical professionals are still unsure about the causes of CP, establishing causation will require the testimony of medical experts.

What’s more, healthcare professionals are represented by insurance defense attorneys who, due to the amount of damages typically awarded in CP cases, are willing to spend a lot of money to derail your case.

The right attorney can help you determine the value of your case and negotiate a fair settlement, or take your case to trial if necessary. Whether or not you ultimately decide to hire an attorney, it’s in your interest to hear one out. Most initial consultations are free. 

Ready to meet with an experienced birth injury attorney? Find one in your area using our free online directory.


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