Deciding Whether or Not to File a Lawsuit?
Choosing whether or not to pursue a medical malpractice lawsuit is often a difficult decision for new parents. It’s reasonable to assume that you have a lot on your plate right now, but you also need to be aware of the importance of acting quickly with regard to any legal action your family is considering.
The thought of bringing a lawsuit against the doctor or hospital may sound intimidating, but understand that you do not have to go at it alone. Our birth injury attorneys handle cerebral palsy cases at no cost to you (they only collect a fee if they actually win your case), and can begin investigating and building your case today. For a free consultation into the options available to you and your family, call 1-855-833-3707 today.
The cost of raising a child with cerebral palsy can put enormous strain on a family’s finances, and pursuing a medical malpractice claim is oftentimes the best way for parents to get the financial help they’ll require. After all, why should the financial burden fall to the victim’s family after such a medical mistake?
When it comes to pursuing a medical malpractice claim or lawsuit, the best advice is always going to come from your attorney. That being said, there are some considerations you should take into account.
Was Medical Malpractice to Blame?
First and foremost, you need to understand that cerebral palsy is not always the direct result of medical malpractice. Sometimes infants develop CP because of natural circumstances that cannot be avoided. There is a chance that your child’s injuries were due to circumstances that were out of the doctor’s hands, or could not have reasonably been expected to discover. It’s not your job to make that determination. Rather, discuss the facts of your case with an experienced attorney and let them investigate.
A Lawsuit is Not a Guaranteed Win
Filing a lawsuit doesn’t necessarily mean that you’re going to be awarded any compensation. Even if medical negligence did play a part in your child developing cerebral palsy, it is still ultimately up to a jury whether or not your family deserves to be compensated (and how much that award should be). Your birth injury lawyer will help prove up your existing and future damages in order to determine exactly how much you’re actually going to seek in compensation, but the jury has the final say in how much you receive.
As long as you hire your attorney on a contingency-fee agreement, rest assured knowing you’ll never have to pay a penny in attorney fees out of pocket—even if you lose in court.
The Statute of Limitations
No matter the facts of your case, the law states that you have a limited amount of time to bring your case before you are statutorily barred from pursuing a claim. This is known as the statute of limitations, and these time limits can vary by state and circumstance.
While most states give you two years from the date of injury to file a lawsuit, this is not always the case. Additionally, each day that passes can make your case more-difficult to win. Make sure you talk to your attorney about this as soon as possible. In most cases, an attorney can let you know how long you have to file during your initial over-the-phone consultation.
It’s All About the Child
There are cases where the jury declines to award the parents any money, but where the child is awarded a large payout that must be put into a trust. This is to ensure that the child’s expenses are covered no matter what, and so that the child can take care of themselves when they reach adulthood. This can bring peace of mind to parents who are terrified for the future of their child, and who want to make sure that there is money available for their needs.
You Must Account for ALL of Your Child’s Damages
One of the most-complex parts of bringing a cerebral palsy lawsuit is determining the full amount of your child’s damages (the amount you’re suing for). Your attorney will need to calculate and prove up all related damages, including past medical expenses, future expected medical costs, the cost of assistive devices, compensation for pain & suffering, and much, much more.
This is one of the hardest things about filing a lawsuit as the burden is on you to prove your damages, but an experienced attorney is well-prepared to help in this regard.
Legal Fees
You can find a good cerebral palsy attorney to work for you on contingency. This means that they don’t get paid a penny in attorneys fees unless they win your claim, and you won’t be stuck with a bill if pressing the lawsuit doesn’t do you any good in the end. This is the best way for families to go forward with these lawsuits because it puts no additional financial stress on the family.
Finding an attorney who works on contingency also ensures that your attorney believes he or she will win your case. Attorneys don’t take cases on contingency that they don’t think will win, which helps foster trust between the client and their attorney.
You Need to Speak with an Attorney First
The most important thing you can do at this point is to learn the options available to your family. You need to speak with an attorney before you will know for certain whether it’s worth it for you to pursue your child’s claim. If the attorney doesn’t think that they can help you, they may turn your case down, but do not give up after speaking to one attorney!
If you find an attorney who is willing to pursue your claim, make sure they take the case on a contingency-fee agreement. These cases can be quite expensive to bring (e.g., many states require you to hire a medical expert), and you need to find an attorney who shows you he or she believes in your case by working on a contingency-fee agreement.
Preparing Your Case
As soon as you sign the contract, your lawyer will begin investigating and preparing your case. This may include hiring expert witnesses, reviewing documents, conducting depositions, sending a spoliation notice, and drafting a demand letter. If the liable parties refuse to pay your initial demand, the next step may be filing a lawsuit with the court.
Filing the Lawsuit
Your lawyer will determine the liable parties in your case, and will file a lawsuit naming those individuals or business entities. This lawsuit has to be filed by a deadline, but once it’s filed the deadline is no longer a concern. Trust your lawyer to handle all of this, but make sure they keep you informed at every step along the way. Remember that even though you’re not paying them out of your own pocket, you are still the client and are in complete control. Don’t be afraid to call and ask if you need an update on what’s going on with your claim.
Out-of-Court Settlements
Due to the inherent difficulty in bringing a medical malpractice claim and tort reform measures passed over the last 15 years, hospitals and their insurance companies are not known to offer settlement offers right off the bat. They know that the vast majority of malpractice cases are never litigated, and even if they are, the burden is on you to prove your claim. Of course, this may change once they realize that you have an attorney.
If your attorney tells you they’ve recieved a settlement offer, listen to their advice. You are the ultimate decision-maker with regard to your claim, but your attorney will likely have a better grasp on the issues facing your claim and your chance of winning in court. Sometimes it’s better to take a guaranteed settlement than to try your case, and your attorney can explain this to you in detail.
Going to Court
Going to court is never fun, but the good news is that you may never have to step foot in a courtroom. Your attorney is there to help you, and many parents are surprised to find that they don’t have to deal with as much as they may imagine. Claims for medical malpractice can be very complex, but you’re not going to be expected to have a great deal knowledge of medicine or negligence law yourself. Work with your attorney and simply find out what they need you to do to give your case the best chance as a successful outcome.