TheCPLawyer® – Do you have a case?
Lifetime Benefits: Does Your Child Qualify?
If your child’s impairment is due to birth injury or medical malpractice, the law permits families, through the litigation process, to pursue Lifetime Benefits in the form of monetary awards. Monetary awards – compensation for injury incurred – can then be used to fund expenses, such as the child’s medical treatment, therapies, adaptive equipment, medications, communication devices and home or automobile modifications.
Over the course of the child’s life, the cost of cerebral palsy is significant. Lifetime Benefits are awarded in recognition of the child’s cerebral palsy and the resulting financial burden on the family – factors that would not exist without the medical malpractice and/or the child’s brain injury. For those cases that qualify, the benefits can greatly assist the family in obtaining treatments and services their child will require over his/her lifetime.
Do You Suspect Any One of These Individuals or Entities Were Responsible for Your Child’s Condition?
- Obstetric gynecologist
- Hospital staff
- Nursing homes
- Health care facilities
- Insurance companies
Although anyone can attempt to sue another, successful litigation requires establishing that the defendant deserves to be sued. The defendant is the person, persons or entity being sued by the plaintiff.
To establish defendant fault, proof must usually exist of an established doctor-patient relationship between the defendant and the plaintiff at the time of occurrence. A plaintiff need not have an established relationship prior to the injuring event. This can be especially important since many hospital procedures – including infant deliveries – may involve emergency on-call staff who have no prior relationship with the plaintiff, but are authorized to care for the patient through the registration process. During this process, the patient agrees to treatment from those working at the facility at the time.
In extreme situations when a patient is unconscious and in need of emergency care, it is implied that medical practitioners at the facility are to provide the care required to save the patient’s life, even if a patient was not able to formally consent.
A case can have multiple defendants. Typically, all individuals deemed responsible for the negligent care – including the medical facility that employs them, their insurance companies, and the facility providing the care – may be listed as defendant(s). In some states, all parties proven guilty are held equally responsible for 100% of damages, or so-called “joint and several liability.” Other states divide the total amount of damages between defendants based on the entity or individual’s degree of responsibility.
Do You Have Reason to Believe a Medical Professional or the Health Care Facility Failed to Provide Care as Required by the Standard of Care?
Do you believe the care received, or not received, led to your child’s condition? Health care professionals and health care facilities have an obligation to provide adequate care to their patients. Duty of care requires that the provision of care fell within generally accepted industry standards in the medical profession. The defendant’s inability to meet the standard of care for the patient, whether intentional or accidental, could indicate a breach of duty, entitling the patient to monetary damages.
Medical practitioners generally have a duty to:
- obtain informed consent
- be clinically competent
- be duly licensed
- not abandon or neglect the patient
- protect the patient from harm to the best of their abilities within reasonable standards
- assist if harm occurs to limit injury
The health care facility generally has the responsibility to:
- establish and enforce policies and procedures
- verify credentials
- train staff properly
- monitor performance
- provide a safe environment
- provide a clean environment
If the medical practitioners or health care facility provided substandard care, and the result of the negligence is an injury, the injured individual may be entitled to financial compensation. The scope, severity and results of the injury are taken into consideration when awarding damages.
Do You Believe There Was a Breach in the Generally Accepted Standard of Care Your Child was Entitled To Receive?
Demonstrating a breach in the generally accepted standard of care is usually required to successfully win a medical malpractice case. It is a medical professional’s responsibility to prevent harm from occurring to the best of his or her abilities, by adhering to the standard of care relevant under the circumstances. Breach of duty is negligence, whether accidental or intentional. To win the lawsuit, breach of duty must be proven.
Proving breach of duty generally involves establishing the standard of care a “reasonable” person with similar qualifications would provide to a patient under similar circumstances. Breach of duty is usually an action the defendant takes, but could also be an omission when there is a duty to act. Usually, this is proven through expert medical testimony. In some states, the standard of care can vary with the location of that care, or the type of facility providing the care. For example, a doctor and medical staff in a low-funded, rural institution might not be expected to have the same resources at their disposal as a well-funded, cutting-edge urban medical facility. Often lawyers look into the policies and procedures of the facility, the equipment and technology available and the qualifications and experience of the professional. Other elements, such as the options available to the professional at that particular facility, or similar facilities, at the time of occurrence, are also considered.
Factors used to determine whether reasonable care was exercised include:
- Was the harm foreseeable?
- Was the damage foreseeable?
- Were precautions taken to eliminate or reduce risk?
Factors to determine responsibility include:
- Intent – Is there evidence of criminal, intentional, negligent or reckless acts?
- Competency – Is the defendant properly trained, certified, managed and experienced?
- Operational compliance – Were policies and procedures in effect regarding these actions? If so, were they properly communicated, monitored and followed at the time of occurrence? Did the hospital provide appropriate equipment, facilities, and staff available to conduct the procedure(s)?
- Inherent danger – Were actions taken that were outside the reasonable margin of error and beyond an acceptable level of risk?
- Extraordinary circumstances – Were there any constraints that reasonably limited the practitioners, or the capabilities of the facility?
- Timeliness – Were actions taken expediently? Were there unacceptable and avoidable delays?
- Options – Were other options more likely to produce a positive outcome available but not considered, purposefully not chosen, or rejected?
- Industry guidelines and professional standards – Were the actions taken, or omitted, within the acceptable industry standards and professional licensure guidelines? Was there a departure from accepted practice standards?
Was There a Disclosure Breach?
Practitioners must present patients with available, pertinent and relevant information in order for the patient to be properly informed before consenting to treatment. Disclosure breach occurs if the patient agrees to a decision without being informed of all available relevant information. In this scenario, it is mandatory to demonstrate that a sustained injury would not have occurred had the doctor disclosed the missing information to the patient, who, in turn, would have denied consent to the treatment.
Disclosure breach may include:
- Informed consent – failure to obtain informed consent (unless extreme emergency)
- Treatment disclosure – failure to disclose the required treatment
- Risk disclosure – failure to disclose treatment risk, failure to disclose alternative treatment risks, or failure to disclose risk of refusing treatment
- Alternative treatment disclosure – failure to disclose alternative treatment
Confidentiality – failure to maintain patient privacy
Do You Suspect a Diagnosis Error?
Failing to properly diagnose the condition in an appropriate timeframe under some circumstances can be fatal, or cause severe injury to the patient. Diagnosis errors account for some of the largest awards, or judgments. To properly diagnose, the practitioner must order appropriate tests in the timeframe deemed reasonable for symptoms or circumstances experienced by the patient. Misdiagnosis can lead to injury or impairment in cases where the child is inappropriately treated for a condition they do not have. Harm must be proven to have occurred because of the diagnosis error. Failing to diagnose, delaying a diagnosis, or misdiagnosing can be negligent when the child or mother is harmed thereby.
Diagnosis errors include:
- Failing to diagnose
- Failure to conduct warranted tests
- Failure to diagnose pregnancy
- Failure to diagnose complicated pregnancies (such as uterine, ectopic or multiple pregnancy)
- Harmful delay in diagnosis
- Avoidable delay, or denial, of tests
- Avoidable delay, or denial, of referral to a medical specialist
- Misinterpretation of test results or monitor reads
- Failure to properly act on test results or monitor reads
- Failure to properly calculate gestational age
Was There Improper Treatment Before, During or After Birth?
Improper medical treatment can occur before conception, during pregnancy, during birth, or immediately after birth. Mistakes that are made during a medical procedure will often fall into the improper treatment category, especially if the errors occurred during commonly performed procedures. Errors must cause harm, and it must be shown that the harm was a result of breach of duty and the standard of care. Mistakes during very difficult circumstances may not qualify, as the procedure or risks may be acceptable under certain extenuating circumstances.
Improper treatment at or following birth may include:
- Failure to assess or failure to properly respond
- Failure to assess or respond to complications or health conditions during pregnancy or the birth process
- Failure to properly perform a procedure (surgery, medical, or treatment)
- Failure to notice or respond to the fetal condition or fetal distress
- Failure to perform a timely cesarean section because of fetal distress
- Failure to perform a timely cesarean section because of other conditions, including infection or extended labor
- Performing an unwarranted cesarean section
- Delayed treatment
- Avoidable delay in treatment or response
- Denial of treatment
- Failure to supply adequate oxygen to asphyxiated baby at birth
- Failure to monitor oxygen and respiratory treatment following birth
- Failure to properly treat a child suffering trauma during the labor process
Did you suspect improper treatment or did your child suffer any injury before, during, or even after birth?
- During your pregnancy, did you develop an infection (bacterial, viral, fungal, parasitic, or sexually transmitted) that placed your unborn baby at risk, such as German measles, Toxoplasmosis, Rubella, cytomegalovirus, herpes, or a urinary tract infection (UTI)? Did your doctor withhold medication and tell you not to worry about the infection? Did your doctor treat the infection properly?
- Was your blood evaluated for Rh incompatibility?
- Did you have preeclampsia/hypertension during the pregnancy or during labor that was not treated quickly or appropriately?
- Did the doctors or nurses fail to order any specific tests or studies during your pregnancy?
- Did the doctors or nurses fail to interpret any specific tests or studies during your pregnancy?
- Did the doctors or nurses fail to notice any changes in your baby’s heart rate during pregnancy?
- Did you have a fever that was 100.4 F or greater during the pregnancy, or during your labor?
- If your baby was born prematurely, were drugs used to stop premature labor or to advance the growth of your baby’s lungs?
- Did you have excessive bleeding during your pregnancy? Was it treated properly?
- Did you experience premature rupture of the amniotic sac or premature separation of the placenta which went untreated?
- Was your pregnancy considered high risk, but not treated as such at any phase during the pregnancy, labor or delivery?
During Labor and Delivery
- Did your placenta rupture?
- Did you have maternal shock from heavy bleeding and fetal distress which led to placenta abruption?
- At any time during delivery do you suspect your child lacked oxygen and nutrients to the fetus?
- Was there any meconium (fecal material) in your fluids when your water broke?
- After your water broke, did it take more than 24 hours to deliver your baby?
- Did the doctors or nurses fail to order any specific tests or studies during your labor?
- Did the doctors or nurses fail to interpret any specific tests or studies during your labor?
- Did you have preeclampsia/hypertension during labor that was not treated quickly or appropriately?
- Was your baby delivered with forceps or with a vacuum extraction device?
- Was your baby injured by the forceps or vacuum extractor?
- Was your baby stuck in the birth canal, and did labor last a long time? Did the doctors or nurses fail to deliver your baby in a timely manner after your labor had gone for much longer than it should have?
- Did you experience any umbilical cord problems, such as prolapsed cord, that can choke the baby during delivery?
- Was your baby’s head too large to fit through the birth canal (known as cephalopelvic disproportion)? If so, was a c-section performed?
- Was your baby born with shoulder dystocia, a very serious situation where one or both shoulders impede delivery?
- Was your baby’s heart rate being monitored? Did your baby’s heart rate indicate fetal distress at any time during the delivery? Did the doctors or nurses fail to diagnose any changes in your baby’s heart rate during delivery?
- Did the doctors or nurses fail to perform an emergency C-section when they knew or should have known that your baby was in fetal distress?
- At birth, did your baby have jaundice?
- At birth, did your baby cry on his or her own?
- At birth, did your baby require resuscitation or assistance with breathing?
- Was your baby admitted to a neonatal intensive care unit?
- Was your baby treated for jaundice?
- Did your child have an APGAR score outside the normal range?
- Was your baby born after 42 weeks gestation?
Do You Suspect Your Child’s Condition is the Result of Medication, Prescription or Pharmacy Errors?
Pharmacy errors relate to mistakes made by pharmacy staff, including pharmacists. They can include dispensing medicine in incorrect doses, mislabeling prescriptions, and providing the wrong medication altogether. Pharmacists may also err when accounting for potential drug interactions and allergies.
Prescription errors are usually the responsibility of the prescribing physician or anesthesiologist. Doctors must take reasonable measures and precautions to determine if a particular drug is capable of having adverse effects on a patient. Reasonable measures would include testing for patient reaction and heeding patient information on hypersensitivity or allergy. Just as important, doctors are obligated to inform patients of potential medication side effects, complications or risks. As in all cases, the breach of duty must result in definitive harm to the patient in order for litigation to be warranted.
Medication, prescription and pharmacy errors include:
- Pharmacy errors include:
- Dispensing medicine in the wrong dose
- Mislabeling prescriptions
- Providing the wrong medication
- Failure to account for potential drug interactions and allergies
- Medication and prescription errors include:
- Prescribing the wrong drug
- Prescribing the wrong dosage
- Prescribing a medication that the patient is allergic to
- Prescribing incompatible medications, thereby causing adverse drug reactions
- Medication administration errors include:
- Inappropriate or incorrect use of prescribed medications
- Administering anesthesia incorrectly
Did Your Child Experience a Birth Injury?
Birth injury negligence or malpractice occurs when an infant suffers harm, impairment or injury around the time of delivery due to physician or hospital error. The error can be intentional or accidental.
Modern delivery technique does much to improve the safety of both baby and mother, but some of the same techniques, if administered improperly, carelessly or without caution, can have devastating effects. A newborn’s entire body, including the brain and central nervous system, are still developing. Infants are fragile and susceptible to a variety of factors, such as infections, trauma, distress, oxygen deprivation, and other birthing mistakes and complications. Any injury suffered early in brain formation, especially at birth, can permanently alter the child’s development.
Many birth injuries cause damage and result in long-lasting or permanent impairment, disability, or even death. Asphyxia – when the newborn’s brain is deprived of oxygen – is one such condition and occurs frequently. Asphyxia can cause serious complications, including cerebral palsy. The brain can sustain similar injury as a result of infection, physical damage or trauma to the infant during delivery.
Birth injury may involve:
- Failure to recognize fetal distress or birth asphyxia as described on the fetal monitor
- Choosing inappropriate delivery method based upon the circumstances
- Failure to timely perform an emergency cesarean section
- Inappropriate delay in performing an emergency cesarean section, typically a delay exceeding 30 minutes
- Failing to identify or properly treat umbilical cord complications
- Failure to notice or respond to the fetal condition
- Failure to notice and respond to maternal hypertension or toxemia
- Inappropriate, excessive or incorrect use of vacuum extraction or forceps, resulting in physical brain injury to the baby, or to the face, neck and shoulder
- Failure to assess or respond to complications or disorders during the birthing process
- Failure to properly identify and treat high risk pregnancy or delivery
- Failure to properly resuscitate a distressed baby at birth
- Failure to treat seizures
- Failure to treat jaundice
- Failure to treat meningitis
Was Your Child Born Under Wrongful Birth or Wrongful Life Circumstances?
In certain states, wrongful birth involves circumstances where parents can pursue litigation against a practitioner due to financial and emotional distress of giving birth to a child with disability after a sterilization procedure was not properly performed. This is also the case if a pregnancy was not properly terminated when a recognizable condition, such as Down’s syndrome was discovered during pregnancy. In other situations, the couple was not properly informed of their risk of having a child with a disability given their particular circumstances, or genetic factors increasing the likelihood their child would be impacted by parental genetics.
In these instances, it must be proven that the parents would have terminated the pregnancy in timely fashion if informed of the circumstances. Timing for pregnancy termination becomes important since the law may not permit termination after a certain date in the pregnancy. As a result, it’s imperative that parents be advised of these issues as soon as possible to allow for the timely exercise of their right to terminate the pregnancy, if so desired and if legally permissible.
When permitted, wrongful life lawsuits are initiated by, or on behalf of, the person who has the disability against the person responsible for their life. This could also happen when a health care provider intentionally uses bad embryos for an IVF procedure, when a doctor performs sterilization incorrectly or when the child’s parent chooses to continue the pregnancy after they were fully advised of the risk of disability. Wrongful life cases are rarely recognized or won in court.
Wrongful birth or wrongful life cases may include:
- Failure to properly perform sterilization procedure resulting in harm to born child
- Failure to properly perform pregnancy termination resulting in harm to the born child
- Intentionally using bad embryos for an IVF procedure
- A parent choosing to have a child after being informed of the risk of disability
Was There a System Failure or Administrative Error?
Complaints filed against medical facilities or hospitals may fall under the category of system failures, or administrative errors. In these situations, an employee of the facility committed a negligent act and the complaint maintains that the facility is liable for the actions of its employee. In some situations, the facility did not have policies or procedures in place to address or prevent the problem and is therefore solely responsible for the failure. In other situations, the facility management did not hire, train, oversee, supervise or manage an employee properly.
System failures and administrative errors include:
- Credentialing – failure to properly investigate education, training, licensing, experience, competency or performance of a staff member
- Staffing levels – insufficient staffing to maintain quality patient care
- Failure to follow established operational policies and procedures
- Failure to establish and enforce policies and procedures
- Failure to properly admit and discharge patients
- Failure of staff to follow the orders of a patient’s private attending physician
- Failure to protect patients from harm
- Failure to adequately perform clinical tests
- Record keeping – failure to keep accurate medical records
- Refusal to treat seriously injured or ill people on an emergency basis
- Refusal to treat or admit an individual based on their race, color, religion, or national origin
- Refusal to treat or admit an individual based on their inability to pay for treatment
Unsafe facility grounds
- Unsanitary facility grounds
Was Your Child Victim of an Equipment Failure?
Failure to maintain equipment, service agreements, and maintenance of equipment used on, or for the benefit of patients, can lead to unnecessary harm or injury. Typically, health care facilities obtain Joint Commission International (JCI, formerly known as JACHO – Joint Commission on Accreditation of Health Care Organizations) certification, whereby they create, maintain and certify equipment safety, ground safety, and security within industry standards. This helps to insure against the spread of infections, equipment malfunction and injury.
Examples of equipment failures include:
- Failure to properly maintain equipment
- Failure to certify equipment safety
- Failure to establish, maintain or follow safety standards
- Failure to establish, maintain or follow security standards
Lifetime Benefits: Still Unsure?
Parents who would like to learn more about the circumstances surrounding the cause of their child’s cerebral palsy, and whether the child’s circumstances may qualify the family to pursue Lifetime Benefits, call Ken Stern today, at . Ken concentrates in medical malpractice, birth injury and cases of negligence.
Still unsure? Further information on helpful topics, include: