CHILD WITH CEREBRAL PALSY - LAW
The consequences of this potentially catastrophic condition affect not only the child with cerebral palsy but also usually place a severe burden on the patient's family and caregivers. CP is usually attributed to natural causes however approximately 10% of diagnosed cases are the result of poor judgment on the part of healthcare professionals which may occur shortly prior to, during or immediately after birth resulting in permanent damage to the child's brain.
In almost every case where medical negligence is to blame, the child with cerebral palsy has suffered damage to the brain as a result of oxygen starvation. It should however always be remembered that this condition is a relatively common childhood disorder and in the vast majority of cases there is no negligence involved.
A child with cerebral palsy can never be cured and treatment only serves to alleviate the symptoms to a certain degree through therapy, the use of special equipment, certain pharmaceutical drugs and in extreme circumstances surgery.
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If you are the carer of a child with cerebral palsy and there is the slightest suspicion that the condition may have been caused by medical negligence then an attempt should be made to investigate the matter through a lawyer. Legal aid is available and it is almost always granted to a child with CP in order to facilitate initial investigations. The income and assets of the parents or guardian are not considered by the Legal Aid authority.
Cerebral palsy is caused by irreversible damage to the brain that may affect movement and mental capacity. It may be caused as a result of Medical Negligence occurring during or shortly after delivery of the affected child. However, cerebral palsy is usually a natural phenomena and it is now thought that less than 10 per cent of all cerebral palsy cases are linked to birth.
Cerebral palsy is a condition caused by brain damage usually occurring during or after birth as opposed to muscular or nerve abnormalities. There are three main categories : spastic, athetoid and ataxic cerebral palsy together with a fourth category which is a mixture of some or all of the other three main categories.
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The following are some of the possible causes of cerebral palsy by medical negligence of healthcare providers: failure to perform certain tests or the misinterpretation of test results; delays in a caesarean section when the child is obviously in distress; non-delivery of the baby more than 24 hours after the membranes have been breached; over-use of vacuum extraction equipment or forceps and no paediatrician present when problems could have been evaluated.
Medical practitioners often refuse to make an early diagnosis as there are other conditions that can mimic cerebral palsy. The diagnosis will not be clear until the child is old enough to have specific muscular control sufficient to display the traits of cerebral palsy and you may have to wait until your baby is 18 months or more before cerebral palsy can be properly diagnosed. If you suspect your child has cerebral palsy as a result of medical negligence you will need to discuss with a solicitor the possibility of making a claim against the healthcare provider.
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You can claim compensation for a child with cerebral palsy if the condition occurred as a result of medical negligence. But exactly what is negligence? It occurs when one person, who owes another a duty of care, breaches that duty which results in reasonably foreseeable harm. In English law, the following basic judicial definition exists: "negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do."
So, if a medical practitioner has failed to provide your child with adequate care, if they were careless, unskilled or ignored or forgot rules and regulations governing care and your child was harmed as a result, then medical negligence may be indicated. Hospitals and healthcare trusts and medical professionals are under an obligation to compensate a child with cerebral palsy if their staff, and this includes nurses and technicians as well as doctors, have been negligent.
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Let's recap. Medical negligence arises when a health care provider falls short of the standards expected of them or of the 'reasonable man'. So it's necessary to show that what the healthcare provider did was substandard given the expectations we have for a reasonable, competent individual doing their job correctly. If the healthcare provider can show that what they did would have been reasonable for any competent practitioner to do, then they may be able to defend against the claim. A judge is therefore required to hear evidence from specialist medical personnel and consider whether the actions of the person or persons accused of being negligent were correct. Sometimes this decision will be difficult: in medicine there are often several accepted ways for attaining the same objective and negligence may not follow if an alternative method was chosen to that which another expert would choose. In other words, even if an identically qualified individual had to make the same decision, their different choice, which may have failed, does not necessarily imply negligence.