How Long do I Have to File a Lawsuit for my Child With CP?


Cerebral palsy is a devastating condition for both the children who are affected and their families. While cerebral palsy won’t worsen over time, it can permanently impact a child’s quality of life and require ongoing medical care and treatment for the rest of their life. If your child has been diagnosed with cerebral palsy, you might be facing quickly building medical and therapy expenses. You might also need to make modifications to your home, ensure your child has the mobility equipment they need, and get all of the types of therapy and education your child will require to live more comfortably.

Depending on what caused your child’s condition, you might have the right to file a cerebral palsy lawsuit to recover compensation for all of the related expenses your family and child have incurred and will incur in the future and other losses. Before you can file a cerebral palsy lawsuit, however, you will need to secure evidence that your child’s condition was caused by the medical negligence of healthcare providers during pregnancy, labor, or shortly after birth. You will also need to understand and comply with the cerebral palsy statute of limitations and make sure to file your lawsuit in time. If you fail to meet the statute of limitations in Pennsylvania, your claim will be time-barred, meaning you won’t be able to pursue compensation through the legal process. Here is some information from the Cerebral Palsy Attorneys at Raynes & Lawn about the cerebral palsy lawsuit statute of limitations in Pennsylvania that you should know.

Understanding Statutes of Limitations

Every state, including Pennsylvania, has various statutes of limitations in place. These laws control when different types of legal actions must be filed and set deadlines for lawsuits. When you want to pursue a lawsuit against the negligent medical professionals you believe caused your child’s cerebral palsy, you must file it within a specified time. If you fail to file your lawsuit by the deadline established under the law, any lawsuit you subsequently file after the deadline has passed based on your child’s condition will be time-barred. This means the court will dismiss your claim and leave you without legal redress for your losses.

Statutes of limitations are in place to protect the at-fault party’s interests while reducing the number of improperly filed claims. In addition, evidence can be lost over time, making it difficult to litigate claims that are multiple years old. If you wait to file your claim, witnesses might move away and the records might be lost. If this happens, the available evidence would become less reliable. A statute of limitations forecloses these types of issues by pushing would-be plaintiffs to file lawsuits as soon as they can.

The applicable statute of limitations will be important for whether you can file a lawsuit on behalf of your child. You should meet with a cerebral palsy lawyer as soon as possible after you learn about your child’s diagnosis to avoid having your ability to pursue a claim foreclosed by the statute of limitations.

Pennsylvania’s Cerebral Palsy Lawsuit Statute of Limitations

The statute of limitations for cerebral palsy lawsuits in Pennsylvania is the same statute of limitations for other types of medical malpractice and personal injury claims. According to 42 Pa. Cons. Stat. § 5524(2), you must file a claim on your child’s behalf within two years. However, Pennsylvania has adopted a discovery rule.

In Fine v. Checcio, 870 A.2d 850 (Pa. 2005), the Supreme Court of Pennsylvania held that the medical malpractice statute of limitations does not start to run until the date the plaintiff knew or should reasonably have known that their injury resulted from medical malpractice. This is important since many parents don’t learn about their children’s cerebral palsy diagnoses for months following their birth.

Cerebral palsy affects a child’s motor skills and functioning, and babies develop those over time. This means that many parents won’t notice the signs that a child might have cerebral palsy for nine to 18 months after their birth. If the statute of limitations started to run from the date of the child’s birth, that would provide little time for the parents and their lawyer to research and investigate what happened and whether the condition was caused by the negligence of a medical provider.

In some cases, a parent might not discover their child was injured for years. In that situation, the date on which the statute of limitations begins running will be the date of discovery instead of the date of the injury.

The Discovery Rule in Pennsylvania Cerebral Palsy Cases

Pennsylvania’s discovery rule for medical malpractice cases as described in Fine means that the two-year statute of limitations will be tolled until the date you discover or reasonably should have discovered that your child’s cerebral palsy was caused by medical malpractice at or near the time of birth instead of the date of the negligent act itself. This makes the statute of limitations more difficult to calculate. The reason for the discovery rule is to give malpractice victims the right to file lawsuits after the standard limitations period has expired when they did not know or have any reason to suspect that their injury was caused by the medical negligence of a healthcare provider.

The key to this rule is that you did not know or reasonably should have known that you had a potential malpractice case. If the relevant deadline of two years has passed, you will only be able to use the discovery rule exception if you did not know and reasonably could not have known that your medical provider caused your child’s cerebral palsy through medical negligence. If you meet this exception, the deadline for filing the claim will run from the date of discovery rather than the date of the provider’s negligent action.

Pennsylvania’s Statute of Repose

Pennsylvania has a statute of repose found in 40 Pa.C.S. § 1303.513. Under this law, a lawsuit can’t be filed any later than seven years following the date of the negligent act regardless of the discovery rule. However, the Supreme Court of Pennsylvania held that the statute of repose for medical malpractice cases was unconstitutional in Yanakos v. UPMC, 218 A.3d 1214 (2019).

The statute of repose is included in the Medical Care Availability and Reduction of Error Act (MCARE). It limited the discovery rule’s application to seven years. In the case of a child with cerebral palsy, the statute of repose would limit the ability of the parents to file a lawsuit for seven years from the date of the birth injury that caused the child’s condition or when the child was seven years old.

Under the statute of repose, only those people who discovered both their injuries and their cause within seven years were permitted to file medical malpractice lawsuits. Once seven years had passed, the patients or parents could not file a lawsuit because of the statute of repose. Before the Pennsylvania Supreme Court’s decision, the sole exceptions to the statute of repose were for minors who suffered injuries and people who were injured because of foreign objects left behind in their bodies. However, the Supreme Court’s decision means there is no longer an absolute limit on the application of the discovery rule.

The court based its reasoning on the apparent conflict between the statute of repose and Art. I, § 11 of The Constitution of Pennsylvania. Known as the state’s open courts provision, this section guarantees that the courts of Pennsylvania will be open and that all people who are harmed can pursue legal remedies. The Supreme Court viewed the statute of repose as conflicting with the open courts’ provision since it placed a time limit on the ability of negligence victims to pursue remedies when they could not reasonably have discovered their injuries and the cause until after seven years had passed.

The court found that the statute of repose potentially interfered with the constitutional right of people to pursue legal redress for harm caused by medical negligence. Because of this, the court reviewed it under the intermediate scrutiny standard, which meant that the court would have had to find that the statute of repose was substantially related to an important government interest. After analyzing the statute of repose under the intermediate scrutiny standard, the Supreme Court of Pennsylvania found that it did not pass constitutional muster. Since the court declared it unconstitutional, the statute of repose no longer places a limit of seven years on the application of the discovery rule to medical malpractice cases in Pennsylvania, including those involving cerebral palsy.

In Yanakos, the plaintiffs filed a malpractice lawsuit against two doctors and UPMC in 2015 for negligent care that occurred in 2003. The patient had to get a liver transplant because of a genetic condition, and her son volunteered to donate a lobe to her for the transplant operation. The doctors tested the son to see if he had the same condition as his mother, which would have meant that he could not be a donor. The son later learned that he had the condition but had not been told. Eleven years following her transplant, the mother found that she still had the condition, which would have been resolved if the transplant was effective. The son then reviewed his lab studies and learned that he had the condition.

UPMC and both doctors filed a motion to dismiss the action under the statute of repose. The trial granted the dismissal, and the plaintiff appealed based on the argument that the statute of repose was unconstitutional and in conflict with the open courts’ provision of the Constitution of Pennsylvania. The Superior Court agreed, and the plaintiffs then appealed to the Pennsylvania Supreme Court, which resulted in the Supreme Court holding that the statute of repose was unconstitutional.

Tolling of the Statute of Limitations for Minors

Most cerebral palsy claims are filed by parents on behalf of their minor children. However, if the parents do not file a lawsuit for their child, the statute of limitations will be tolled until the child reaches age 18. They will then have two years to file a lawsuit against the negligent medical providers who caused their injuries and resulting cerebral palsy or until they are 20 under the standard statute of limitations.

Determining the Cause of Cerebral Palsy

For many children with cerebral palsy, determining its cause is difficult. However, some cases of cerebral palsy result from birth injuries at or near birth. Some of the types of birth injuries that could result in cerebral palsy include the following:

  • Brain hemorrhage
  • Birth asphyxia
  • Birth hypoxia
  • Maternal infections
  • Untreated jaundice
  • Head trauma during birth
  • Infections shortly after birth
  • Brain injuries during labor and delivery

When these injuries are caused by the medical negligence of a treating doctor or another healthcare professional and later result in the development of cerebral palsy, the negligent practitioners might be liable to pay damages in a cerebral palsy lawsuit. Identifying the cause of your child’s cerebral palsy will require a careful review and analysis of the medical records from your pregnancy, labor, delivery, and your child’s care following birth.

Some examples of medical negligence that could result in cerebral palsy include the following:

  • Improper use of birth assistive devices, including forceps or vacuum extractors
  • Failing to perform an emergency c-section when necessary
  • Failing to appropriately monitor the mother and baby for signs of fetal distress
  • Failing to diagnose and treat an infection in the mother or baby
  • Failing to treat a baby’s jaundice so that it results in kernicterus, brain damage, and cerebral palsy
  • Using excessive force during delivery
  • Administering improper doses of labor-inducing drugs
  • Failing to identify and address umbilical cord problems
  • Allowing an overly large baby to go through a vaginal delivery instead of delivering by c-section

To identify whether your child’s cerebral palsy was caused by a preventable birth injury, your attorney will work with a medical expert to review and analyze the medical records. The medical expert will determine the appropriate standard of care and whether the medical provider’s treatment fell below it. They will also determine whether the substandard care provided by the doctor or other professional caused your child’s birth injury and resulting cerebral palsy. Once the determination is made, you can then file a cerebral palsy lawsuit on your child’s behalf.

When Should You Contact a Cerebral Palsy Lawyer?

While you might think that you have plenty of time to file a lawsuit for your child, it is best for you to speak to a lawyer as soon as possible. Even though the statute of repose has been declared unconstitutional, the clock will start running from the date you discovered or reasonably should have known that your child’s cerebral palsy was caused by medical negligence.

Determining when you reasonably should have known that your child’s condition was caused by medical negligence can be complex, so it’s best to seek help from a cerebral palsy lawyer as soon as you learn your child’s diagnosis.

Getting help early can also help your attorney find and preserve evidence that could otherwise be lost with time. They might find witnesses while their memories are still fresh to provide more support for your claim and secure copies of all of the relevant medical records that will be necessary to prove your case. If you wait too long to talk to an attorney, it can be difficult to uncover important evidence to support your claim. Waiting too long could also result in your claim being time-barred if the court finds that you are ineligible to use the discovery rule exception to the statute of limitations.

Talk to Our Experienced Philadelphia Cerebral Palsy Attorneys

If your child has been diagnosed with cerebral palsy, you are likely dealing with questions about their future and how you will afford the care they will need. Early treatment and intervention can greatly improve the quality of life for children diagnosed with cerebral palsy, but paying for it can be prohibitively expensive.

If your child’s cerebral palsy was caused by the negligence of a doctor, medical facility, or another medical provider, you might have grounds to pursue a cerebral palsy malpractice claim. Filing a lawsuit could allow you to recover compensation to pay for all of the care your child will need and your other expenses and losses. To learn more about your legal rights and potential claim, contact the experienced cerebral palsy lawyers at Raynes & Lawn today at 1-800-535-1797 to schedule a free consultation.


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