Filing a Cerebral Palsy Birth Injury Claim

November 10, 2023 | Thomas L. Stroble
Filing a Cerebral Palsy Birth Injury Claim

Infants who develop brain abnormalities or suffer brain damage during pregnancy or delivery might have a medical condition called cerebral palsy. In some cases, cerebral palsy can occur due to a birth injury to an infant’s brain.

When a healthcare provider causes a birth injury resulting from negligent treatment and care, a family might have a cerebral palsy birth injury claim.

However, birth injury and other medical malpractice claims are often complex and have specific requirements that other personal injury claims don’t. An experienced birth injury attorney can give you the legal representation you need to pursue compensation and accountability for your child’s injury.

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Understanding Cerebral Palsy

Cerebral palsy refers to health disorders affecting a person’s motor function and fine motor control. Cerebral palsy occurs due to abnormal brain development or brain damage during pregnancy, delivery, or early infancy that affects the parts of the brain responsible for motor skills.

Child with Cerebral Palsy

Cerebral palsy can affect movement and posture, although the severity of symptoms varies from person to person.

A person with less severe symptoms from cerebral palsy may have an awkward gait or hand/arm movements but otherwise require no assistance to walk or perform ordinary tasks. However, people with severe symptoms may need specialized equipment to walk, such as braces, canes, or walkers, or may require a wheelchair or lifelong care.

The abnormal brain development or brain damage that causes cerebral palsy can lead to other neurological conditions or symptoms, including cognitive or behavioral disabilities, vision problems, hearing loss, or seizures/epilepsy. The motor function difficulties caused by cerebral palsy can also have secondary complications, including spinal deformities or rigidity in the joints.

Medical professionals recognize four main types of cerebral palsy:

  • Spastic cerebral palsy: This is the most common type. It causes muscle stiffness that makes movements awkward and difficult. Doctors classify cases of spastic cerebral palsy based on the affected body parts.
  • Dyskinetic cerebral palsy: People with this type have trouble controlling their extremities, which can cause difficulty with sitting or walking due to rapid or jerky movements. Cases that affect the head and neck may also affect swallowing and speaking.
  • Ataxic cerebral palsy: This type causes balance and coordination issues, with people having unsteady gait or challenges with quick movements or fine motor control. 
  • Mixed cerebral palsy: People with symptoms of more than one type of cerebral palsy may receive a diagnosis of mixed cerebral palsy, such as spastic/dyskinetic cerebral palsy. 

Signs of cerebral palsy might appear within a few months of birth. They can include delays or failure to meet motor skills-related developmental milestones, including rolling over, sitting, standing, and walking. Other signs can include awkward positioning or movement of arms and legs.

How Birth Injuries Can Lead to Cerebral Palsy

Cerebral palsy may occur due to abnormal brain development caused by genetic or environmental factors, but many cases occur due to brain damage resulting from birth injuries. Birth injuries refer to physical trauma or health complications an infant suffers during or immediately after delivery.

Birth injuries might occur because of negligent errors by doctors and delivery staff that cause an infant to suffer brain damage during delivery.

Examples of ways that birth injuries can cause a child to develop cerebral palsy include:

  • Improper use of delivery-assisting tools like forceps or vacuum extractors, including placing too much pressure on an infant’s skull
  • Using excessive force to pull an infant through the birth canal to complete delivery
  • Failure to recommend a cesarean section due to the size of an infant or the birth canal creating an increased risk of the infant’s head getting stuck in the birth canal
  • Improper position of an infant for delivery or failing to recognize improper position, which can lead to a breech birth
  • Failure to respond to signs of fetal distress, including abnormal heart rate or blood pressure, which may indicate a lack of sufficient blood or oxygen flow to an infant’s brain
  • Failure to diagnose health complications or infections that can damage an infant’s brain

Liability for Cerebral Palsy Caused by Birth Injuries

A doctor or another healthcare professional providing obstetric care or attending a delivery may have liability for a child’s cerebral palsy resulting from birth injuries caused by the provider’s negligence.

However, not every adverse outcome, including cerebral palsy, results from medical malpractice. Medical malpractice occurs when a healthcare provider renders treatment that doesn’t comply with the applicable standard of care.

Although each patient’s case will have a specific standard of care, medical professionals generally define the standard of care as the treatment that other healthcare professionals of similar training and experience would render in identical circumstances.

Therefore, you can hold a medical provider liable for cerebral palsy caused by treatment that other doctors, midwives, or healthcare professionals wouldn’t have rendered under the same circumstances.

The Birth Injury Claims Process

Filing a medical malpractice claim for a birth injury that causes cerebral palsy has specific requirements.

Unlike other injury claims, a medical malpractice claim for a birth injury in Michigan requires a family to send written notice of their claim at least 182 days before filing a lawsuit against the provider(s) responsible for causing the birth injury.

This written notice must state the factual basis for the medical malpractice claim, the applicable standard of care, how the medical provider allegedly breached the standard of care, how that breach caused the child’s birth injury, and the names of each healthcare provider receiving notice of the claim.

Within 56 days of sending notice of a medical malpractice claim for a birth injury resulting in cerebral palsy, a family must provide the healthcare provider(s) receiving the notice with access to any of the injured child’s medical records in the family’s control or with medical releases giving the provider(s) access to records related to the claim. The healthcare providers(s) must also give the family access to any relevant medical records in the provider(s) control.

Within 154 days of receiving notice of a medical malpractice claim for a birth injury causing cerebral palsy, the healthcare provider(s) must send a response containing the factual bases for any defenses to the claim, the standard of care the provider believes applicable to the case, how the provider complied with that standard of care, or how the provider’s treatment did not cause the child’s injury.

If a family does not receive this response or an offer to settle, they may file a medical malpractice lawsuit if not barred by the statute of limitations. Under Michigan’s statute of limitations for medical malpractice claims involving young children, if an injury occurs before a child is eight, a family must file a lawsuit before the child’s tenth birthday.

Not only do families need financial resources to pay for care and support for their child, but the longer they wait to pursue a legal claim, the greater the risk that critical evidence or witness testimony may become lost.

When a family files a medical malpractice lawsuit for their child’s cerebral palsy caused by a birth injury, they must also submit an affidavit of merit supporting the lawsuit.

The affidavit of merit must certify that a healthcare professional has reviewed the claim and state the professional’s opinion on:

  • The applicable standard of care,
  • How the defendant healthcare provider(s) breached the standard of care,
  • The decisions or actions the provider(s) should have taken to comply with the standard of care, and
  • How the provider(s) breach of the standard of care caused the child’s birth injury and cerebral palsy.

What Financial Recovery Can You Seek in a Birth Injury Claim?

When your child has developed cerebral palsy due to a birth injury caused by a doctor’s or other healthcare provider’s negligence, your family might recover compensation for expenses you may incur for your child’s care.

Financial recovery in a birth injury claim might provide your family money for:

  • Costs of medical treatment and rehabilitation for your child’s cerebral palsy, including surgeries, medications, physical/occupational/speech therapy, or purchases of medical/mobility equipment
  • Long-term care and support your child may need, such as home health care or special education services for physical and accompanying cognitive difficulties caused by a brain injury
  • Loss of future earning potential 
  • Non-financial losses such as physical pain, emotional distress, lost quality/enjoyment of life, or reduced life expectancy

In Michigan, the law caps non-financial/economic losses in medical malpractice claims.

Typically, a family may not recover more than $280,000 in non-economic losses unless:

  • A child who develops cerebral palsy due to a birth injury suffers paralysis and permanent functional loss of one or more limbs due to brain injury
  • The child has permanently impaired cognitive capacity rendering them unable to make life decisions or live independently

In these cases, the cap on non-economic losses rises to $500,000.

Challenges in Pursuing Cerebral Palsy/Birth Injury Claims

Birth injury medical malpractice claims can involve complex factual and legal issues.

Many medical malpractice claims turn on disputes over the specifics of the standard of care in a patient’s case, how a provider’s treatment failed to comply with that standard of care, or what other treatment actions/decisions the provider could have taken to meet the standard.

Proving liability in a cerebral palsy birth injury claim can require substantial evidence, such as:

  • Medical records from your pregnancy and post-delivery care
  • Provider note from pregnancy care and the delivery
  • Eyewitness statements
  • Medical records of treatment and rehabilitation for your child’s cerebral palsy
  • Medical expert testimony opining on the applicable standard of care in your case and how your doctor’s or healthcare provider’s treatment decisions and actions fell outside the scope of the standard of care

Many medical malpractice claims end up in settlement negotiations with a healthcare provider’s malpractice insurer. Unfortunately, dealing with insurance companies comes with challenges because insurers will do everything possible to minimize the value of a birth injury claim.

Tactics that insurance companies might use include combing through a mother’s medical history for anything that might indicate that a child’s cerebral palsy occurred due to genetically or environmentally caused abnormal brain development rather than a negligently inflicted birth injury. 

Adjusters might discount the severity of symptoms caused by a child’s cerebral palsy or pressure families into accepting a quick settlement just to get the financial resources they need to pay for their child’s care.

How Can an Attorney Help Your Family With a Birth Injury Claim

Ensuring your child gets the care and support they need for their cerebral palsy can prove emotionally taxing and time-consuming. Fighting with insurance companies and defense attorneys to pursue your family’s medical malpractice claim can add stress.

However, a medical malpractice attorney can help your family stand up for your rights and the justice your child deserves by handling the details of your family’s case. That way, you can focus on caring for and helping your child.

An attorney can investigate your claim to secure evidence for your family’s case, such as working with medical experts to understand the applicable standard of care and how your healthcare provider’s conduct may have fallen outside that standard.

An attorney can pursue any insurance or legal claims your family might have against potentially negligent providers and advocate for your family’s right to pursue the financial resources and accountability you need.

A Birth Injury Claim Can Provide Your Family With the Financial Resources You Need to Help Your Child With Cerebral Palsy

Thomas L. Stroble, Attorney for Birth Injury in Michigan
Thomas L. Stroble, Birth Injury Lawyer

When your child receives a diagnosis of cerebral palsy, you may worry about what the future holds, including the care and support your child will need to live as full and independent a life as possible.

Your family might have a medical malpractice claim if your child’s cerebral palsy occurred due to a birth injury caused by a doctor’s or other medical provider’s negligence. However, winning a cerebral palsy birth injury claim will require proof of a healthcare provider’s fault for your child’s condition.

That’s where a personal injury lawyer experienced in medical malpractice cases can help. They can explain your family’s legal options to you and advocate for your child’s rights to financial relief and justice.

Thomas L. Stroble Author Image

Thomas L. Stroble


Mr. Stroble is a highly accomplished graduate of Michigan State University, with degrees in both science and law. He specializes in commercial lawsuits and personal injury cases. Licensed to practice law in Michigan and even the U.S. Supreme Court, he’s a well-qualified legal expert. Besides his career in law, he loves outdoor activities and volunteers as a part-time police officer in Birmingham.

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