Government assistance for people with disabilities is inadequate at best. Very few people believe the situation will improve. It seems the disability community is in a constant fight just to maintain today’s levels. Therefore it is essential that parents look closely at the circumstances surrounding their child’s disability diagnosis.

It may be that your child’s disabilities could have been prevented by the exercise of due care. It may be that monetary compensation can be obtained from the insurers of those who failed to take care.

If it can be proven in court that the failure to take care caused the disability, the resulting compensation can go a long way to ease the challenges of daily life.

How does this apply to Cerebral Palsy?

Cerebral Palsy is caused by damage to the developing brain. This damage can be due to developmental factors or injury to the brain before, during or after the birth process up to three years of age.

Sometimes the brain has failed to develop normally for reasons such as genetic abnormality or metabolic disease. It is often difficult to say what disrupted the brain’s normal development process. Litigation respecting developmental malformations is generally not feasible at this time.

It is in the second case, where Cerebral Palsy has been caused by a trauma or injury to the brain before, during or after the birth of a child that parents should look most closely at the circumstances.

What types of circumstances should parents look for?

Oxygen deprivation, infection, drug interaction, severe jaundice, and bleeding into the brain are all examples of incidents which should be scrutinized. Head injuries from a motor vehicle collision, a fall, or a ‘difficult delivery’ are further examples of incidents which can damage a developing brain and lead to cerebral palsy.

Can’t parents rely on the opinions of their health professionals?

The medical professions are collegial, rather than adversarial in nature. It is very uncommon for one health professional to be openly critical of another. It is very common for them to use euphemisms such as “complications” or “difficult delivery” or “adverse event” rather than provide a meaningful explanation.

We know that trauma to the developing brain can often be prevented by proper risk management and care before, during and after the birth process. Health professionals are trained to identify risk factors and to intervene to prevent trauma and damage to the fetal\newborn brain. Procedures are put in place for doctors and nurses to follow when faced with different risk scenarios. Unfortunately, risk factors are not always identified, intervention doesn’t always occur as it should, and established procedures are not always followed.

How does the law respond?

Medical training and procedures and timely interventions relate to what the law calls ‘standard of care’. Standard of care is a concept familiar to all of us. For example, as drivers we were required to train and then demonstrate a certain level of competence before being granted a license to drive. As licensed drivers we’re expected to remember our training and follow the rules of the road. We might get away with ignoring stop signs for a while. However, when a collision occurs, there’s no doubt we’d be held responsible. Not stopping at a stop sign is a breach of the standard of care.

When health professionals fail to identify risk factors or intervene to prevent brain damage, the law may hold them responsible for the consequences of this neglect of duty.

What can parents do when their child’s disability is not clearly explained by the medical profession?

As discussed, due to their collegial nature, it is unlikely parents will get straight answers regarding standard of care breaches or the cause of some types of disability from health professionals. It is incumbent upon parents to obtain expert assistance, usually through the office of lawyers with access to appropriate medical examiners and experts, to determine if litigation is feasible.

What are some of the indicators of medical mistake that should lead parents to consult with a lawyer regarding their child’s disability?

• very low or very high birth weight
• multiple births
• meconium aspiration
• cord prolapse
• cord compression
• emergency caesarean delivery
• forceps or vacuum delivery
• infections such as meningitis or herpes
• gestational diabetes
• seizures within days of birth
• specialists called in to care for newborn
• jaundice
• emergency resuscitation
• shoulder dystocia

Have I left it too long to consider a lawsuit?

One should always consult a lawyer promptly. It is important to make every effort to preserve evidence. Memories fade and notes and documents are lost.

On the other hand, parents should never assume its too late to consult a lawyer on a case. Limitation periods are longer in cases involving children. The law regarding limitation periods is an area which definitely requires that legal advice be obtained.

How can parents afford an experienced lawyer?

If you contact Campbell, Renaud with a medical malpractice enquiry, you will be asked a number of questions over the telephone. From this telephone interview, you may be invited to attend for a free consultation. It is possible that a preliminary assembly and examination of medical records will follow, again at no cost to the parents. Should a medical error appear from the preliminary review, contingency fee arrangements are available.