Category Archives: Legal Help

Was My Daughter’s Cerebral Palsy Preventable?

7 CLues Your Doctor is a Predator
Every parent of a child born with a brain injury asks themselves, “Was my child’s birth injury preventable?” Very few find the answer to that question. Why? Many times, they’re convinced by the physicians and other medical personnel involved in their child’s delivery that “these things happen.” How many parents actually take the steps to investigate their child’s birth in spite of assurances that their child’s birth injury was “unavoidable?”

Taking on Goliath

I remember having a conversation with a family member several months after our daughter was born. My daughter suffered a severe neurological injury at birth due to “complications of unknown origins.” During this conversation with my cousin, he suggested that I should have my daughter’s birth investigated. He also suggested that if investigators found that my daughter’s injuries were “preventable,” that I should sue for damages. I reminded him that he was suggesting I take on Goliath! I would not be suing a small, home town hospital. I would be suing one of the largest entities in the free world! I laughed at his suggestion and asked him if he knew any really, really good lawyers who would take such a case! I dismissed his suggestion and our conversation.

Making the Call

Fast forward almost 3 years. While watching television one afternoon, a commercial came on. It was a malpractice law firm with an advertisement about cerebral palsy and birth injuries. I don’t know why, but I tuned in to that commercial, as voices from the past filtered through my mind. The conversation I had with the Attending Pediatrician the morning after my daughter’s birth was as clear in my mind at that moment as it had been that morning 3 years previous. The words “this was preventable” echoed through my mind. He had explained to me that, had the staff used a fetal heart monitor during my daughter’s delivery, they would’ve seen her distress and been able to physically stop the vaginal delivery and perform an emergency C-section, possibly preventing the severe birth injury she sustained.

As I copied down the 800 number, the doubts and inhibitions crept in. I remembered the conversation I had with my cousin and the disturbing reality of what I was contemplating started to set in. Did I really want to take on this fight? Would a lawyer even take our case? I didn’t know. I knew one thing though, we had nothing to lose! My daughter was severely brain injured and I wanted answers! It was already becoming evident, as early as 6 months of age, that my daughter’s brain injury was going to have a profound negative impact on her life. I wanted to know exactly what happened during those 40+ minutes that robbed my daughter of a normal life. I made that call.

Getting Answers

I had no knowledge of “statute of limitation” laws, but learned in my discussions with the lawyer that we were just 3 months away from the statute of limitations expiring. The resulting investigation by our lawyer provided the answers I needed. It was found that my daughter’s birth injury was the result of gross negligence on the part of the medical staff involved in her delivery. The negligence was such that our lawyer told us he was prepared to take our case to the Supreme Court if we had not won. As it turned out, we did win the case, and the ensuing settlement helped to provide a level of care and quality of life for our daughter that would not have been possible otherwise.

If your child was recently diagnosed with a neurological injury that you suspect occurred during their birth and you don’t have the answers you seek, MAKE THAT CALL. It may make the difference between you having to fight for services for your child their entire life, or being able to provide all the services and interventions they may need without government restraints or restrictions.

 

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Parents of Kids with CP: Your Rights Under the FMLA

DonateAFOs

Working parents of kids with CP often face unique challenges. For example, you may need to take several weeks off work while your child recovers from surgery. If you work holidays, there are likely no qualified caretakers available to watch your child on those days. There are hundreds of nerve-wracking ways that caring for your child with CP can clash with your job, and even more ways it might threaten your job security. Fortunately, the Family and Medical Leave Act (FMLA) was passed to protect people like you.

About the FMLA

The FMLA was enacted in 1993, in an effort to balance the conflicting demands of the work and family environments. It requires covered employers to grant unpaid, job-protected leave to employees for family and medical reasons that qualify under a certain criteria. Common examples of such reasons include personal or family illness, pregnancy, and military leave. The employee on leave is guaranteed job security during this time, and employee health benefits are unaffected. The Wage and Hour Division of the Department of Labor oversees the administration of the FMLA.

Basics of the FMLA

The FMLA grants eligible employees 12 weeks of unpaid leave during any 12-month period. These 12 weeks can be used all at once, but are usually split into smaller, periodic segments. In theory, this allows the employee time to deal with health conditions, either personal or within their family; recovery periods following illness or surgery; and matters surrounding pregnancy, childbirth, childcare, foster care, or adoption. Psychiatric disorders, chronic physical conditions, and lifelong conditions like CP or autism also qualify for unpaid leave. This can be a lifesaver for many special needs parents, allowing them to be present during important medical, emotional, and psychological milestones.

To be eligible for FMLA leave, employees must first work at a business for a minimum of 12 months – and must clock at least 1,250 hours during that period. Both public and private sector companies are covered by the FMLA, but companies must employ at least 50 workers within a 75-mile radius to be eligible.

Potential Issues with FMLA Leave

Some parents of kids with CP have criticized certain shortcomings of the FMLA. One common complaint is that employees often need FMLA leave within the first 12 months of employment – before they are technically eligible. Parents of special needs children will almost certainly have relevant commitments, like physical therapy sessions or medical appointments, long before the 12-month mark.

Another common complaint is that, in many ways, FMLA leave is up to the employer’s discretion. For example, there is no set standard for what constitutes “proof” of a medical condition. An uncooperative boss may demand further documentation, even after you’ve provided sufficient evidence of your child’s CP. Employers frustrated by your absence can technically create excuses and fire you, allegedly “for other reasons.” In certain circumstances, your boss can even decide that your absence is “undue” or overly “disruptive” and simply deny your leave. Unfortunately, the effectiveness of the FMLA relies somewhat on your boss’s personality. It’s important to research your rights under the FMLA thoroughly – especially if you know that your boss can be difficult.

Further Resources

Wayne State University developed a helpful online information pamphlet about the FMLA. Bright Tots, an autism advocacy website, published this guide to the FMLA specifically for parents of special needs children. These two resources may offer answers to some of your questions about the FMLA. You can also contact the Department of Disability Services in your state and request an “advocate” for your case. Many advocates are lawyers and can help you understand your rights in the workplace.

If you have CP yourself, and are struggling to establish a tolerable workplace situation, consider researching the Americans with Disabilities Act of 1990. This is a civil rights law prohibiting discrimination based on disability. It only applies in certain circumstances, but there’s a big chance it can be invoked to defend your cause.

We wish you the best of luck in obtaining a fair and compassionate workplace situation! And we hope you’ll report back to us on your FMLA experiences, so we can share them with other families.

 

Join Our Family

Sign up for our free e-newsletter for more blogs, articles, and news about CP kids and their families.

Parents of Kids with CP: Your Rights Under the FMLA

Your Rights Under FMLA
Working parents of kids with CP often face unique challenges. For example, you may need to take several weeks off work while your child recovers from surgery. If you work holidays, there are likely no qualified caretakers available to watch your child on those days. There are hundreds of nerve-wracking ways that caring for your child with CP can clash with your job, and even more ways it might threaten your job security. Fortunately, the Family and Medical Leave Act (FMLA) was passed to protect people like you.

 

About the FMLA

The FMLA was enacted in 1993, in an effort to balance the conflicting demands of the work and family environments. It requires covered employers to grant unpaid, job-protected leave to employees for family and medical reasons that qualify under a certain criteria.  Common examples of such reasons include personal or family illness, pregnancy, and military leave.  The employee on leave is guaranteed job security during this time, and employee health benefits are unaffected.  The Wage and Hour Division of the Department of Labor oversees the administration of the FMLA.

 

Basics of the FMLA

The FMLA grants eligible employees 12 weeks of unpaid leave during any 12-month period.  These 12 weeks can be used all at once, but are usually split into smaller, periodic segments.  In theory, this allows the employee time to deal with health conditions, either personal or within their family; recovery periods following illness or surgery; and matters surrounding pregnancy, childbirth, childcare, foster care, or adoption.  Psychiatric disorders, chronic physical conditions, and lifelong conditions like CP or autism also qualify for unpaid leave.  This can be a lifesaver for many special needs parents, allowing them to be present during important medical, emotional, and psychological milestones.

To be eligible for FMLA leave, employees must first work at a business for a minimum of 12 months – and must clock at least 1,250 hours during that period.  Both public and private sector companies are covered by the FMLA, but companies must employ at least 50 workers within a 75-mile radius to be eligible.

 

Potential Issues with FMLA Leave

Some parents of kids with CP have criticized certain shortcomings of the FMLA.  One common complaint is that employees often need FMLA leave within the first 12 months of employment – before they are technically eligible.  Parents of special needs children will almost certainly have relevant commitments, like physical therapy sessions or medical appointments, long before the 12-month mark.

Another common complaint is that, in many ways, FMLA leave is up to the employer’s discretion.   For example, there is no set standard for what constitutes “proof” of a medical condition.  An uncooperative boss may demand further documentation, even after you’ve provided sufficient evidence of your child’s CP.  Employers frustrated by your absence can technically create excuses and fire you, allegedly “for other reasons.”  In certain circumstances, your boss can even decide that your absence is “undue” or overly “disruptive” and simply deny your leave.  Unfortunately, the effectiveness of the FMLA relies somewhat on your boss’s personality.  It’s important to research your rights under the FMLA thoroughly – especially if you know that your boss can be difficult.

 

Further Resources

Wayne State University developed a helpful online information pamphlet about the FMLA.  Bright Tots, an autism advocacy website, published this guide to the FMLA specifically for parents of special needs children.  These two resources may offer answers to some of your questions about the FMLA.  You can also contact the Department of Disability Services in your state and request an “advocate” for your case.  Many advocates are lawyers and can help you understand your rights in the workplace.

If you have CP yourself, and are struggling to establish a tolerable workplace situation, consider researching the Americans with Disabilities Act of 1990.  This is a civil rights law prohibiting discrimination based on disability.  It only applies in certain circumstances, but there’s a big chance it can be invoked to defend your cause.

We wish you the best of luck in obtaining a fair and compassionate workplace situation!  And we hope you’ll report back to us on your FMLA experiences, so we can share them with other families.

 

Join Our Family

Sign up for our free e-newsletter for more blogs, articles, and news about CP kids and their families.

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