It is heart-breaking for new parents to find out that their child has been born with cerebral palsy. Even more tragic is discovering that medical malpractice has ruined your child’s chances of ever having a normal life.
What is cerebral palsy?
Cerebral palsy is the result of abnormal brain development during pregnancy or damage to the developing brain that affects — to a lesser or greater extent — a child’s ability to control his or her muscles. It can also affect their motor skills and their ability to speak.
Cerebral palsy can occur during pregnancy (prenatal), during childbirth (perinatal) or in the first months of a baby’s life (postnatal). In many cases, the diagnosis is the result of unavoidable complications.
Risk factors for cerebral palsy in babies
The following factors can increase the risk of a newborn baby having or developing cerebral palsy:
- low birth weight — especially children weighing less than 2,5 kilograms at birth
- premature birth — especially babies born before the 32nd week of pregnancy
- children conceived with the help of infertility treatments
- infections during pregnancy
- failure to treat serious cases of jaundice after birth
- birth complications that disrupt oxygen supply to the baby
It is also possible for a child to develop cerebral palsy – normally within one month of birth – as a result of infections such as meningitis, injuries, or complications arising from problems in the flow of blood to the brain (known as hypoxia).
Most babies born with mild hypoxia recover without permanent disability. However, if left untreated, it can progress into a permanent disorder. The most common of these is cerebral palsy.
South Africa’s cerebral palsy statistics surpass the global average
A 2017 study found that the global average for the prevalence of cerebral palsy at birth was 2 per 1,000 births.
There are no conclusive statistics for the prevalence of cerebral palsy in South Africa. However, a 2017 study in Kwazulu-Natal showed that as many as 10 in 1,000 children were diagnosed with cerebral palsy.
Multiple reports point to the lack of resources and inadequate training for nursing staff in state hospitals as root causes for cerebral palsy in babies.
These cases could have been avoided with proper medical care.
Half of South Africa’s cerebral palsy cases may result from medical malpractice
In 2017/2018, successful claims for cerebral palsy cases accounted for 50% of all medical malpractice cases in Gauteng.
R769 million was paid out in 2016 for cerebral palsy suits arising from medical negligence. The largest pay outs were for cases registered at Johannesburg’s Chris Hani Baragwanath Hospital.
Evidence of poor perinatal care has been reported across the country.
In one case, the plaintiff received R7.4 million after it was shown that malpractice at Shongwe Hospital in Mpumalanga was responsible for causing cerebral palsy.
In 2018, another case, the Supreme Court of Appeal ordered a gynaecologist and the Kwazulu-Natal hospital where he worked to pay R20 million for failing to act timeously to deliver a baby, resulting in cerebral palsy. This case took a decade to be resolved – the baby was delivered in 2008.
What it takes to make a claim of medical malpractice
Claiming and proving medical malpractice can take time. Partly, this is because causation between the cerebral palsy diagnosis and negligence must first be established.
Even matters that appear simple can take years to resolve. For more complex cases, the legal process takes even longer.
It’s advisable to seek legal advice as soon as possible to determine if there are grounds for a malpractice case.
Here are the aspects that claimants should take into consideration.
Put in a claim as soon as possible
It’s best to put in a claim as soon as possible, and certainly before a child turns 18.
Obtain medical testimony of malpractice
The success of a medical malpractice claim depends on sufficient, clear evidence of medical malpractice.
As a starting point, this typically includes medical records; substantiated testimony from medical specialists and, if possible, witness statements indicating medical mismanagement.
Evidence that healthcare providers acted negligently can include:
- failure to detect infection or abnormalities prior to birth
- failure to act appropriately when the umbilical cord is wrapped around the baby’s neck
- failure to deliver by Caesarean section, when required
- failure to detect signs of foetal distress
- delays in inducing labour, where necessary
- failure to manage a breech birth
- use of excessive force when delivering a baby with forceps.
Calculate the appropriate compensation
Establishing the appropriate financial compensation of your claim should take into account:
- the severity of the brain damage
- lifelong support (internment at a care facility, adaptations to the home, equipment, etc.)
- Medical care
- Educational needs
These costs can easily run into millions of rand.
Medical malpractice claims with DSC Attorneys
At DSC Attorneys, we have a medico-legal team with extensive experience in handling cerebral palsy claims.
We are well-positioned to assess your claim, prepare the necessary supporting evidence, and represent you during legal proceedings, improving your chances of receiving the compensation you deserve.
Contact us for the very best legal support and representation. Note that we work on a no win, no fee basis.