The decision by a parent to investigate the events surrounding the birth of their special needs child can be extremely difficult. The mere thought that a child's disabilities could have been prevented is often never raised. Many health care providers focus on treating the special needs population with their ongoing and future care needs, rather than looking in the past to see what happened. As such, often many years pass before a parent decides to ask questions and/or call a birth injury lawyer.
So, what happens if 20 years goes by and a parent wants to start investigating? Is it too late?
The short answer is no.
While every family's situation is unique and fact specific, the general law in Ontario is that the limitation period (time limit) to sue is tolled (put on hold) while the child/adult remains incapable, and until a Litigation Guardian has been appointed. As such, if a child and/or adult remains cognitively incapable indefinitely, then by virtue, the limitation period to sue never extinguishes.
This legal concept is grounded in the fact that it would not be fair for a limitation period to begin to run against someone who is incapable of making decisions related to litigation and/or settlement of their case. As such, when one is deemed incapable, they require the appointment of a Litigation Guardian to act on his or her behalf. In most of my cases, the mother or father acts as the litigation guardian.
However, it is always important to investigate a potential medical malpractice as soon as possible. So, while it is possible to commence a claim for a birth injury case on behalf of a special needs individual for events that happened two decades ago, the more time that goes by the more difficult a case can be. For example, witnesses/doctors/nurses could pass away, medical documents from the incident could be harder to obtain, etc. However, even if those do occur, an experienced medical malpractice lawyer can complete its investigation and determine whether a family and child is entitled to compensation for their injuries, no matter how long ago the incident happened.
An experienced medical malpractice lawyer will retain the appropriate team of experts such as a Neuroradiologist, Obstetrician, Neurologist, and Neonatologist etc. to assess the care provided to you or your child from various angles of thought. By speaking with these experts, a medical malpractice lawyer can put all the pieces of the puzzle together to help you and your family get answers.
If and when a determination is made that the Cerebral Palsy diagnosis could have been prevented, and that Cerebral Palsy occurred via negligence of a medical professional, the child and their family are entitled to compensation. This compensation can include, but is not limited to: Attendant Care, Nursing Care, Physiotherapy, Occupational Therapy, Medications and other specialized equipment which is prohibitively expensive for most families of children with Cerebral Palsy across Canada.
In most birth injury cases, it is never too late to ask questions what happened. Even if it was 20 years ago.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
