Child with Cerebral Palsy May File a $150M Medical Malpractice Lawsuit against the Military
Birth injuries sustained to the second child born during a twin pregnancy, were allegedly caused when he did not receive enough oxygen during the delivery in May 2005 which led to the child developing Cerebral Palsy.
Here, the plaintiff’s contend that the medical Records indicate that limbs were blue and that the child was not breathing when he was delivered about an hour after his sister. In most situations a child’s medical record will contain an APGAR score (Activity, Pulse, Grimace, Appearance, and Respiration) this test was designed to quickly evaluate a newborn's physical condition after delivery and to determine any immediate need for medical or emergency care. A score of 8 or above at 1 and 5 minutes usually indicates a child is not in need for immediate help, however, this is not always the case.
The defense is claiming that the child had the condition in utero and for some time. To defeat this, the Plaintiffs are asserting that the damage to the brain was caused by oxygen deprivation at the time of delivery. To support this claim their attorney is stating that if cerebral palsy developed before delivery it would damage large portions of the brain, instead of localized damage that this child has suffered.
Due to the fact that this claim is against the Military it will fall under the Federal Tort Claim Act
(FTCA, August 2, 1946, ch. 753, title IV, 60 Stat. 842, 28 U.S.C. § 1346(b) and 28 U.S.C. §§ 2671-2680), a statute enacted by the United States Congress in 1946 permitting private parties to sue the United States in a federal court for torts committed by persons acting on behalf of the United States. Liability under the FTCA is limited to "circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b).
As such, the Military has six months to respond to the claim. It can pay the full amount, offer a reduced settlement or pay nothing.
After the six-month period, if the family is not satisfied with the Military’s response, they
can file a lawsuit in U.S. District Court.
Although, in the past several medical malpractice cases involving cerebral palsy have had verdicts in excess of $100 million this case is only in its initial stages and will be defended vigorously. In fact, to demonstrate this, the military went to the media before the suit was even filed, a highly unusual move and one I have rarely seen.