Is Cerebral Palsy always due to negligence?
World Cerebral Palsy is celebrated in October each year. There are 17 million people across the world living with cerebral palsy (CP). Another 350 million people are closely connected to a child or adult with CP. It is the most common physical disability in childhood. CP is a permanent disability that affects movement. Its impact can range from a weakness in one hand, to almost a complete lack of voluntary movement.
Cerebral palsy is caused by abnormal brain development or damage to the developing brain. This usually happens before a child is born, but it can occur at birth or even in early infancy. In many cases, the cause isn’t known. Many factors can lead to problems with brain development.
In many cases, the cause of cerebral palsy is unknown. However, doctors do know that some of the reasons a baby’s brain does not develop properly include gene mutations, infections, traumatic head injury or lack of oxygen to the brain. Therefore if there has been an incident or sentinel event that could affect a baby’s brain, it may be possible to fit the pieces together and determine the likely cause.
Interesting facts about Cerebral Palsy:
- It is a complex disability, which can affect different parts of the body.
- 1 in 4 children with CP cannot talk.
- 1 in 4 cannot walk.
- 1 in 2 have an intellectual disability.
- 1 in 4 have epilepsy.
- CP is a lifelong disability and there is no known cure.
- In 13% of cases neuro-imaging and brain scans are normal.
- Predictions of severity are most accurate at 2 years of age.
How can an attorney help?
One of the central legal principles in South Africa is that if a person’s behaviour or actions has caused damage to another person, they can be held liable. There are different legal requirements of what must be proven and in which circumstances they may have a valid defence and be excused.
It is necessary to prove that the responsible person’s actions (or failure to act), was not reasonable and was in fact negligent. Further it would be necessary to prove that as a result damage has been suffered by someone else and that the initial actions of the responsible person directly resulted in this damage.
Doing all of this requires input by experienced medical professionals and attorneys who understand the legal requirements of medical negligence litigation. Medical experts can investigate the care and the outcome in order to provide their opinions to the court by way of medico-legal reports. Research, evidence and expert medical opinion is essential in proving a case in court.
Access to these experts may be limited to the general public due to lack of information or finances. Thus an attorney who is well versed and has a good track record with medical malpractice claims will know which experts to instruct and assist the client with the correct legal advice and take charge of the legal process.
What can be claimed?
It is estimated that medical and related costs for children with cerebral palsy are about 10 times higher than a child without the disability. The courts will consider the following:
- Medical and related expenses.
Examples are costs of therapy, surgery, medication, special devices, personal assistance or caretaking, home and vehicle modifications to name but a few.
- Loss of ability to work or earn an income.
- Loss of independence, functioning and mental wellbeing.
- Pain and suffering.
To learn more about the different aspects of a claim for disability as a result of negligence see our article.
If your child receives a CP diagnosis, you might want to have an attorney review your child’s medical history to determine if there was any negligence on the part of the doctor. If you have any questions about Cerebral Palsy and possible medical negligence, feel free to contact us at Paul du Plessis Attorneys at 012 809 1588 or send an e-mail to paul@pauldup.co.za
Written by
Dané du Plooy
Sources:
https://www.mayoclinic.org/diseases-conditions/cerebral-palsy/symptoms-causes/syc-20353999