Frequently Asked Questions Birth Injury

Should I File A Lawsuit?  I don’t want to hurt an innocent doctor or nurse who didn’t intend to injure my child.

• First, let's explore the difference between intent and negligence. If the healthcare provider intended to cause harm to your child, this would become a criminal matter of assault and battery (as well as a civil case for monetary damages), with the state pursuing jail time. However, if the healthcare industry employee (doctor, nurse, etc.) didn’t intend to harm your child, but was careless/negligent in causing the injury, they and their employer are financially responsible for the harm they caused. The monetary amount is determined by a jury by way of a civil lawsuit.
   
• Second, you must understand that the various healthcare providers are all part of the healthcare industry, and they normally have insurance for the harm they cause. It’s part of doing business. It’s similar to an auto accident case. For instance, if an otherwise good driver runs a stop sign and hits a little girl, breaking her leg, that driver is required to have insurance coverage for the damages caused. That driver should want that child properly compensated by the insurance company for those damages. The same principle applies to a medical malpractice case. If a healthcare industry employee is negligent/careless and causes a serious injury, they should have insurance for that and should want the child to be compensated. In truth, many doctors and hospitals want a claim paid, but the insurance company refuses and makes them fight it in court to save the insurance company money.
   
• Third, the premium for the insurance to cover the mistake of a healthcare industry employee has already been paid. They pay premiums to have the insurance coverage and normally pass those premium costs on to their patients. As such, you are not hurting an innocent healthcare industry employee by seeking monetary compensation. Instead, it’s the insurance money that we are after. You are properly looking out for your child and trying to get your child the insurance coverage benefits they are entitled to. This insurance coverage has been paid for in large part by the patients themselves. Why would you let the trillion-dollar-a-year insurance industry keep the money they owe your child under the insurance policy that has already been bought and paid for? You wouldn’t, and you shouldn’t do that. If a healthcare industry provider’s careless mistake causes your child serious injury, there normally is insurance coverage for that. Don’t let the insurance industry keep your child’s money. It makes no sense.
   
• Fourth, I can’t vouch for every medical malpractice claim, but pursuing these claims is very time-consuming (hundreds to thousands of hours) and expensive for the attorneys. If a case is lost, the attorney normally does not recoup money they advanced to pursue the claim (this can be hundreds of thousands of dollars), and they don’t get paid a fee for their time. They work on contingency. So if the case is lost, there is no fee, and the costs are not paid by the injured child or family. As such, it makes no sense for an attorney to pursue a frivolous medical malpractice case. Moreover, if a case is truly frivolous, a motion can be filed by the healthcare industry insurance attorneys asking the judge to throw the case out, and they can ask for costs in the process.  
   

The jury doesn’t get to hear about the insurance coverage, or the fact that the case is really about getting proper insurance benefits to a deserving child. If I had my choice, I would file a breach of contract action directly against the insurance company to obtain the insurance coverage that is owed and not even name the healthcare employees in the suit. But I can’t do that because the insurance industry has been successful for the last hundred years or more in preventing anyone from telling the jury about the insurance coverage. The general population suspects there is coverage, but the jury doesn’t hear about it. It may seem to them and the general public like there is no coverage, but there almost always is. So, the jury doesn’t know about this because the insurance company doesn’t want the jury to know. Why don’t they want them to know? Because they believe (correctly, to some extent) that most people are compassionate, and if there is a close call on whether a healthcare industry employee's mistake caused harm, the jury may be more inclined to find against the insurance company. That's because the insurance industry is not a sympathetic entity, much like the pharmaceutical industry and tobacco industry.
 

Will my child lose his or her benefits if I recover money for my child from a lawsuit?

No. Many times, a disabled child can receive government benefits and/or private health insurance coverage. And it’s true that if the child has millions of dollars in a regular bank account, then that can affect their eligibility for government benefits. However, the solution is that the money from the lawsuit is put into a properly created trust, and once that is done, the money can’t and/or shouldn’t be used to make the child ineligible for benefits. As such, it makes sense to pursue the insurance coverage your child is entitled to. Your child can obtain the liability insurance proceeds and keep his/her eligibility.
 

My child is already getting governmental benefits. Why try to get liability insurance coverage through a medical malpractice case in addition to this?

• First, the benefits a child gets are normally insufficient to take care of most or all of their needs. Plus, the list of providers is limited. And in many cases, the providers that tend to take patients based on government benefits are not the best providers. You want the freedom to see the best providers in accordance with what your child needs, instead of being limited by government rules and regulations. The list of deficiencies that can result from relying solely on government benefits is endless. However, when the money from a jury award or settlement is placed in a trust, it can be used to cover whatever is not covered by government benefits. This can provide access to the best quality of care and quality of life for your child.
• Second, government benefits come from taxpayers. Taxpayers didn’t cause the injury. The negligent healthcare industry employee did. It’s better to have adequate money in a trust for your child so you don’t even need government assistance.
• Third, money from the lawsuit normally can be used for anything that reasonably benefits the child. Your child’s quality of life can improve with the additional money from the lawsuit.
• Fourth, as stated above, why would you allow the insurance company to keep the money they owe your child?
   

My child was injured while under the care of a doctor or nurse. Is that all I need to prove?

No. Your attorney needs to prove that more likely than not, the healthcare provider breached the standard of care (made a mistake), and that breach was a substantial factor in causing your child’s harm. So, it can become quite complicated to pursue a case. And of course, the trillion-dollar-a-year healthcare industry sticks together and will bring so-called experts to court to say: 1. We did nothing wrong; 2. If we did something wrong, it didn’t cause the harm. And regarding damages they might be responsible for, they either say the harm isn’t that bad, or they go the other way and say the child’s condition is so bad that he/she won’t live very long. Now, why would they try to claim a child’s life expectancy is short? It’s because they only want to be responsible for future medical care for as short a period of time as possible. It’s all about the money for the insurance industry. It is not about doing the right thing. It’s about profits. It’s a way to save millions of dollars in insurance proceeds, and it’s done all the time. As such, you need attorneys who have dealt with these insurance companies' defenses and so-called experts, and have found honest medical experts to fight them and support your claim.
 

What causes Cerebral Palsy?

Cerebral palsy (CP) is a form of brain injury that manifests itself primarily with physical problems. One way this happens is from a lack of oxygen to the brain during the labor and delivery process. A typical case involves a situation where the fetal heart tracing is showing signs that the fetus/baby is not tolerating the stress of labor and not being well-oxygenated for any number of well-known reasons. Many times, this is caused by a decreased blood flow to the brain. And with decreased blood flow comes decreased oxygenation to the baby's brain. As you know, the blood carries oxygen to all areas of the body. Lack of blood flow = lack of oxygen. There are all kinds of well-known reasons why this can happen. There is a lot to say about this, but generally speaking, when this starts to happen, steps need to be taken to resolve the problem. If it can’t be resolved, they need to do a Cesarean section to deliver the baby before permanent brain damage occurs. They need to get the baby out so that he/she can start breathing and get oxygen on their own instead of relying upon Mom’s placenta and umbilical cord. So, this problem can cause brain damage that manifests itself as CP, but also as developmental (cognitive) delays.

Sometimes it’s both. Sometimes it's primarily behavioral problems or any combination of these conditions. So, a birth injury is not limited to CP. It can also involve purely developmental delays, purely behavioral problems, or any combination thereof.
 

Will my case have to go to trial?

Normally not. We work our cases up properly and get excellent experts to support your case. As such, 90-95% of these cases settle without having to go to trial.

We prepare every case as if we have to go to trial. There is a saying: “If you want peace, prepare for war." Likewise, if you want a fair settlement, then prepare for trial. This is our motto.