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			 Parents and Caregivers Resource Network

Ask The Lawyer

Be A Squeaky Wheel

Dear Parents and Caregivers:
     I am an attorney who has represented children with special needs for 23 years. The Pennsylvania Parents and Caregivers' Resource Network has requested that I author an "Ask The Lawyer" column, which will be a regular feature in upcoming newsletters and on this Web site. This column will answer parents' questions, without charge, concerning health insurance, special education, waiver benefits, SSI (Supplemental Security Income), nursing, private health care benefits, and accident-related questions.
     The questions below are actual questions I have received from parents. I have attempted to provide broad answers to these questions so the information can benefit all families of children with special needs. If you would like me to answer your question in this column, you may either call me 1-800-331-4134, or e-mail me at info@josephromanolaw.com.
                                                                                                Joseph L. Romano, Esquire

Advocating for Children with Cerebral Palsy: Benefits

Families of children with cerebral palsy recognize and understand that their child has unique needs that must be addressed. Parents often experience the feelings of being overwhelmed and anxious about the future.

The most common question parents ask are:

WHAT IS CEREBRAL PALSY?

The United Cerebral Palsy Association (UCPA), a major national voluntary agency serving those with cerebral palsy, states that cerebral palsy is a condition caused by damage to the brain during pregnancy, labor, or shortly following birth. Generally, the causes of cerebral palsy are grouped into three major categories, according to the period in which the potential problem may develop. The categories are:

  • Pre-Natal - from the time of conception to the time of labor
  • Natal - from the onset of labor to the actual birth of the baby
  • Post-Natal - from the time of, and after, the birth of the child

WHAT CAUSES CEREBRAL PALSY?

The first question families ask is "How did this happen?" Unfortunately, there is no simple answer. There are many questions that need to be answered before any cause can be determined. Sometimes the causes of a child's cerebral palsy cannot be determined. A 1997 study suggests that many hard-to-explain cerebral palsy cases may be caused by infection rather than by oxygen deprivation during the birth process.

For parents who have questioned whether the care that was provided could have been negligent and caused the condition, I advise them to have the medical records reviewed. Finding the answer may relieve much of the anxiety that parents feel, especially in the first few years after the diagnosis. If it is determined that the care provided during the prenatal or birthing process was negligent, a successful claim will give the parents the financial resources that they will need to give their child the best possible care.

WHAT IS THE STATUTE OF LIMITATIONS (TIME LIMIT) TO FILE A CLAIM FOR NEGLIGENT CARE?

In Pennsylvania, after June 30, 1984, a minor child who is injured in any type of accident, medical negligence, or other case in which he or she has a right to bring suit, has two years from the date he or she reaches majority (18 years plus 2) to file a lawsuit or bring about a civil action. The Pennsylvania legislature passed this particular provision to protect a minor's rights, since often the full extent of a minor's injury is not known until many years after the accident or birth.

Parents should act promptly, since each state has a different time period for filing a minor's claim.

FIGHTING ANOXIC EXCLUSION

Recently, many health insurers have adopted what they call Anoxic Exclusion. This is a refusal to pay for rehabilitation and home care if the diagnosis is anoxia or anoxic encephalopathy. Parents are told that the reason for the "anoxic exclusion" denial is that the requested care is "custodial" or "maintenance level". These denials should be aggressively challenged through the appeals process, administrative appeals, bad faith claims, and litigation.

SUCCESSFULLY LITIGATED CASES

Delay In Emergency C-Section

I was contacted by a family who was having extensive funding problems for their child with cerebral palsy. The family felt that the birthing/ medical records should be reviewed, because they had questions about whether or not the child should have been delivered by emergency C-section vs. vaginal delivery. A review of the fetal monitoring strips included in the records documented that the baby's heart rate was "spiking" (going up and down sporadically) and there was an indication that the baby was receiving insufficient oxygen. Medical experts were of the opinion that the child would not have suffered cerebral palsy had an emergency C-section been performed in a timely manner. A lawsuit that was filed on behalf of the child resulted in millions of dollars of liability insurance benefits, which were placed into a trust to pay for the child's immediate and lifetime medical needs.

Coordination Of Benefits

A child diagnosed at birth with cerebral palsy, spastic quadriplegia, needed lifetime medical care. The parents' health insurance policy had a $1 million lifetime maximum for medical care. By creatively using the coordination of benefits clause under the private health insurance policy, I was able to maximize the benefits to which the child was entitled from the health insurance policy, and also from the school district for special education benefits. Obtaining medical and special education benefits for children should not be pursued without a detailed plan that analyzes all available sources of funding.

Conversion: - Funding For Additional Inpatient Rehabilitation

I represent a child who has cerebral palsy. The child was an inpatient in a rehabilitation facility and, according to her treating doctors, was making excellent progress. The family's health insurance policy contained a provision that limited patient rehabilitation to 60 days during any calendar year. The child had used the entire 60-day inpatient rehabilitation benefit. A careful review of the "master provider agreement" revealed that the policy contained a 60-day outpatient program benefit - for which, under the policy, the insurance company contractually agreed to pay up to $10,000.

Using the concept of conversion, I requested that the insurance company convert the 60-day outpatient program (worth $10,000) and allow the family to use the $10,000 outpatient benefit to pay for additional inpatient rehabilitation. After "a little prodding", the insurance company agreed.

Jury Verdict - Cost Of Care

I was recently co-counsel in a case that resulted in a $20 million settlement for a child diagnosed with cerebral palsy and anoxia. Due to the child's extensive medical needs, the focus of the trial was the cost of lifetime care and life expectancy. A special needs trust was established which allowed the child to receive governmental benefits as well as funding from the special needs trust that paid for necessary medical equipment, nursing care, and lifetime medical needs.


If you would like top register for a parents' educational conference on cerebral palsy, to be held in 2004, entitled Winning The Battle For Benefits For Children With Cerebral Palsy, Traumatic Brain Injury, Ventilator Dependence, And Long Term Nursing Needs, please contact my office at 800-331-4134, or e-mail me at info@josephromanolaw.com.


Click here to read Mr. Romano's previous columns.

 


The responses in this newsletter should not be considered as legal advice, or as a substitution for a consultation with an attorney of your choice. JOSEPH L. ROMANO is an attorney whose practice is limited to representing seriously ill and injured minors and adults. A FREE copy of Mr. Romano's book, entitled The Legal Rights of the Catastrophically ill and Injured: A Family Guide, may be requested by contacting his office at 1-800-331-4134. Questions may be directed to Mr. Romano at his toll-free number or his e-mail address, info@josephromanolaw.com. Updates to Mr. Romano's book may be found on his web site http://www.josephromanolaw.com.


Joseph L. Romano, Esquire Conferences:

Attorney Romano's dynamic and informative presentations, co-sponsored by PPCRN, have been helping hundreds of parents to win the battle to obtain benefits for their children with special needs. Conferences will be held in the Spring of 2003 in Suburban Philadelphia, Hershey and Erie and in the Fall of 2003 in Philadelphia and Pittsburgh For dates: Check PPCRN's website, Mr. Romano's website http://www.josephromanolaw.com/ or call his office toll free at 1-800-331-4134


717-561-0098 PPCRN 1-888-5-PARENT


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