Twenty-seven year old Jonathon Khairule from Tile Hill Coventry has more than his share of physical disabilities. He suffers from cerebral palsy which renders him wheel-chair bound. His only means of communication is typing on a keyboard which he does with his nose.

Yet he had a kindly visit recently from “lady luck” in the form of a landmark High Court victory, which, in delivering a very compassionate decision, allowed him to pursue legal action against Tameside General, the hospital in Ashton under-Lyne, Lancashire, he believes is responsible for his severe disability.

In its defense, the hospital argued, with more than a little justification that the time had long passed for Mr. Khairule to bring a claim against them. And the law does state that personal injury claims must be brought within 3 years. For birth injuries, the 3-year clock starts ticking from the person’s 18th birthday. So he seemed to find himself between a rock and a very hard place.

Jonathon, who plans to begin his studies in Virtual Engineering this month (September), knew that he had C.P. from birth, but he just assumed that it was something which could not be avoided and that no one was at fault for his illness. When he was in his early twenty’s, he started looking into what had happened, more to understand rather than looking for compensation. Since he was already 21 years of age, no one was willing to get involved because of the 3 year limit on personal injury liability.

Irwin Mitchell was the only legal office that was willing to even try litigation on his behalf, and they too warned him that it would be an uphill battle. What they did discover was that there appeared to be serious concerns about the possibility of medical malpractice in the way his birth was handled, and they hoped that would prove enough of a mitigating circumstance to convince a judge to hear the case, notwithstanding the passage of three years.

Lindsay Gibb, the medical negligence specialist at the Irwin Mitchell office explained that Jonathon had first contacted their office in February 2004 which was more than a year and a half after his 18th birthday. On the surface, this was way beyond the time he could initiate a claim against the hospital. However the judge does have significant discretion to overlook the three year rule in a case where the judge is convinced that dis-allowing the 3 year rule would be fair and a fair trial could still happen.

This past July (2008), the High Court agreed with Mr. Khairule’s claim and issued a ruling paving the way for suit to be brought against the Strategic Health Authority.

According to Craig Straw, chief deputy in charge of civil rights in the city of Philadelphia’s Law Department, in the last decade, only 67 child-abuse lawsuits were filed against the Department of Human Services. Child-abuse cases are typically filed as civil-rights cases. This is about ten percent of the police-brutality cases filed in the same period, and a tiny fraction of the over 1,600 lawsuits filed against the city in fiscal year 2008. Of those 67 child-abuse lawsuits, 16 were settled with payouts totaling $2 million, 7 remain open and 44 were dismissed without payment.

The case Danieal Kelly serves as a perfect example. Kelly who had been in the care of DHS and a private contractor hired by the agency, who had cerebral palsy, died in August 2006, when she was 14 years old, suffering from severe malnutrition and bedsores.

According to Shaw, the reason so few cases are filed against the authorities is that ”these are hard cases to win. A plaintiff has to prove that DHS is accountable for abuse or a death caused by someone else, such as a parent or foster parent.”

A sad example is that of Porchia Bennett, in which the estate of a 3-year-old girl who died of multiple beatings, asphyxiation and malnutrition claimed that a DHS worker failed to act on her behalf. In 2003, the case was dismissed.

According to some experts, another possible reason there are so few child-abuse cases, is that the victims are too young to sue and the guilty parties are often the parents. In the absurdly paradoxical circumstance of the Danieal Kelly case, the parents who are being blamed for her neglect were the ones who initially filed suit.

During the same ten year period in Philadelphia, there were 652 lawsuits alleging excessive force by members of the police. While Shaw did not have figures on how many of these cases were settled and/or thrown out, he said that the city paid $13.3 million to litigants.

According to Harvey Rice, first deputy city controller, the largest settlement in the last decade in a child civil-rights case in the last 10 years was a $1 million payout.

Rice described other hair-raising examples of ineptitude and neglect of DHS which is supposed to care for the young people who are its often unfortunate charges:

An 8-year-old girl identified in court records as T.J. was assaulted by John Aloysius Lyles III, a convicted bank robber, whom DHS had considered a “good caregiver”. T.J. contracted HIV after the assault:

In 1995, 4 year old M.B., was raped by a man living in the home of her foster mother working for Women’s Christian Alliance, which received children placed through a contract with DHS. The city settled with M.B.’s aunt in 2003 for $500,000. The aunt was awarded an additional $2.8 million in a federal suit against the alliance.

In 1999, a 3-year-old boy was found naked and battered with a broken leg in the basement of his Port Richmond house. His godparents were awarded $275,000. The boy’s mother, Andrian Huymaier, was sentenced to 15 to 34 years for child abuse.

The boy’s attorney, Patricia Hoban who a personal injury lawyer in Center City in addressing the issue of monetary compensation for children who suffer this type of abuse, explained, “Children can never be fully compensated for injuries inflicted by adults. A child’s innocence is taken, and then you throw some dollars at him and say, here, this is to make up for all the shortcomings.”

She said, “In cases like these, an attorney has to show that DHS consistently did not follow normal procedures.

Leonard Fodera, a Center City trial lawyer, who represented the aunt in the M.B. case added, “You can’t go forward with the rogue-employee theory — that one person at DHS was acting outside the norm. You must prove that maltreatment was widely known and ignored.”

In 1993, DHS paid $1.6 million to the estates of four foster children who were killed when a fire destroyed the home of their foster parents Rose and Hubert Artis, in 1989. The Artis’ also paid $1.6 million. Lawyers for the city held DHS accountable in this case for not following its own regulations for foster home inspections.

In 1990, the A.C.L.U. filed a class-action suit against DHS on behalf of several children, including Baby Neal, an infant who was born in 1990 with syphilis and with cocaine in his system, alleging that abused and neglected children were systematically denied their civil rights. In response, DHS promised to institute improvements and allow monitoring by private advocates for two years.

Still, it is difficult to determine if lawsuits make a difference in the way DHS operates.

According to Frank Cervone, who, in addition to serving as executive director of Support Center for Child Advocates, a program of volunteer lawyers working for abused children, was an attorney on the Baby Neal case, “We tried to fix neglect in a DHS system which is designed to remedy neglect of family and parents. In 1990, DHS didn’t know where the kids they were supposed to be caring for were, and their case loads were dramatically high. As a result of the lawsuit, caseloads were reduced and DHS workers were better trained.”

”At the same time”, he added, “lawsuits tend to make an agency defensive, which can hinder efforts to self-correct.”

Leonard Fodera believes that under the new commissioner, DHS was seriously trying to be the best they can.

If you live in New York State and are planning to have a baby, there are certain counties you should stay away from: Essex, Greene, Seneca, Tioga, Washington, Yates, Schoharie, and Hamilton. According to the Center for Health Workforce Studies, these 8 counties don’t have obstetricians. Another of the Center’s alarming findings: 18 counties in N.Y. State have fewer than 5 ob-gyns. If this continues, women may soon start asking: who will deliver their babies? And lest you think this is strictly a problem that affects the “Empire State”, over 1,500 counties in the U.S. don’t have a single obstetrician.
Fact: While it has never been a safer time to have a baby, it has never been more dangerous to be an obstetrician. During the last four decades, medical innovations like ultrasound and fetal heart rate monitoring devices have revolutionized the field of obstetrics, and other advances have virtually eliminated potentially devastating fetal medical disorders. This has resulted in a dramatic drop in debilitating diseases that had once been the predictable result of complicated pregnancies. These technological advances have reversed the potential threat to the health of new born children which might have occurred given the fact that an increasing number of women are having children at an age which is much older than their mothers and grandmothers.
The down side is the negative statistics for professionals in the field of Obstetrics care. Fact: The American College of Obstetricians and Gynecologists recently released a study which determined that approximately 90% of the obstetricians have been sued at least once in their careers. A decade ago the statistic was 75%. No l;ess disheartening to those beginning their professional careers, nearly 40% of obstetrical residents are forced to defend at least one claim filed against them while they are training. It is no wonder then that nearly 65% of ob-gyns decided to change their professional specialty due to the fear of liability claims or litigation.
The most common cause for malpractice lawsuits against ob-gyns is brain damage to infants, specifically in the occurrence of cerebral palsy. Although it sounds very cynical, especially given the fact that few cases of cerebral palsy are in any way even remotely connected to the birth process, but families who have a C.P. child will inevitably have substantial financial needs, for medical care, therapy, and other services for their special children. And since options for outside financial assistance are limited, it should come as no surprise that such families seek assistance from the courts. Most experts agree that there is very little that can be done to prevent cerebral palsy and at best all that can be done can result only in minimizing some of the risk factors in a very small percentage of cases. That accounts for the rate of caesarean deliveries in the U.S. which has soared over the last three decades partially due to the defensive tactics that doctors have been taking in an attempt to avoid birth related malpractice suits.
But unfortunately the rate of caesarean births 30% in 2005 nearly 5 times the rate in 1970 has not helped reduce the numbers of C.P. births – approximately 1 in every 500 births. The courts have become like a lottery for medical injury victims. Very few win large amounts, but most receive nothing. According to the Harvard Medical Practice Study based on data gathered from New York hospitals, there is no judicial reward for most birth injuries. Even where the plaintiffs are successful, nearly 60% of the money won will go to pay administrative costs such as lawyers, expert witnesses and many other costs, leaving the patients and their families the balance.
So we are now not surprised that the number of ob-gyn’s is rapidly decreasing throughout the U.S. at an alarming degree. Since obstetricians face liability for brain damage outcomes that they are powerless to prevent, this raises medical malpractice premiums, and it creates an environment which is distinctly unfavorable for doctors caring for pregnant women. Thus, a high percentage of obstetricians are opting out of the practice and fewer medical school graduates are pursuing ob-gyn as a specialty.
A case in point is the story of Dr. Ronald Uva, a member of an obstetrics group and chief obstetrician at the local hospital in Oswego, N.Y., who has dekivered over 7,000 babies in his 30 years in practice. According to Dr. Uva, “It is almost impossible for me or my colleagues to continue to practice obstetrics. I tried to stop practicing at age 55 to spend more time with family, but my group could not recruit a single obstetrician and my partners would have had to work every other night in the hospital. My group is still trying to recruit. No luck — not one decent candidate. There are really no obstetricians for hire. Also, high medical liability rates make it almost impossible for me to give care to the underserved.”
The consensus is that New York’s citizens and physicians should be better off than this predicament allows. One solution currently being discussed is a program jointly financed by insurance and public support which would provide wide-ranging monetary benefits to all eligible children who suffer from neurological injuries, based on an approach similar to worker’s compensation. This program would remove these cases from the judicial system.
It would work in the following way. Instead of filing a claim in court, all eligible families could obtain monetary assistance from this administrative system. To insure the efficacy of the system, oversight would be provided by reliable and independent experts, who would determine a rational process for awarding benefit payments. Every child would undergo case management evaluation in order to determine the level and degree of assistance that each family’s entitlement. Once determined eligible, the children would gain access to the services they required for the rest of their lives.
The program would also have a very decisive educational and disciplinary component. It would address patient safety (a task traditionally assumed by the courts), and would perform a detailed review of the competence of the medical care in each case. Where instances of malpractice were uncovered, those responsible and found negligent would be disciplined according to a set of established guidelines. The end result would be to provide the necessary teaching and education to all obstetrical caregivers in the state
This approach could actually distribute compensation more equitably on a state-wide basis to more children, more quickly and efficiently as is the case in Florida and Virginia which have similar programs. Programs in those two states have already reduced the costs of birth-related injuries. Administrators are convinced that granting this type of financial support will result in significant savings in the future. More important, it will also provide a lifetime of vital medical, social and other services to these needy children and will substantially reduce doctor’s insurance premiums and ultimately improve the quality of medical care throughout the state.
Legislation intended to begin formulating this type of program has already been introduced in the State Senate in Albany during the past session. It is now up to our elected officials to endorse this rational proposal and finally bring a sense of order to the obstetrics health care providers and to the families in the State of New York.

Res-Care, an international human service company, which provides job training and educational support to people with developmental and other disabilities, has announced its intention to collect over $8 million it is claiming from the New Mexico departments of Health, Human Resources and Children, Youth and Families, for canceling its contract with the company in 2006.

The company, which claims it has been providing services to New Mexico’s developmentally disabled for more than ten years, filed its complaint in the U.S. District Court in Albuquerque the end of July this year.

Res-Care, which is based I Louisville, Ky., and operates in 37 states across the nation, claims that it was paid $15.3 million for services rendered in 2005.

Concurrently, the company is being sued in 2 separate law cases stemming from allegations of inadequate care and staffing. In one case, the guardian of a disabled man claims that a staff member of the company sold the person methamphetamine. Methamphetamine is a very addictive stimulant drug that affects the central nervous system. It is a Schedule II stimulant, which means it has a high potential for abuse and is available only through a prescription that cannot be refilled. When this incident was discovered, the state promptly cancelled Res –Care’s provider agreement in July of ’06 and moved clients to other care providing companies.

Res-Care’s lawsuit claims the following:
1. The contract was ended without due process;
2. Under state and federal law, in the event a Medicaid provider is ended without cause, that provider is entitled to receive notice of what the state claims the company did wrong, and is entitled to an administrative hearing giving the provider the opportunity to present witnesses in its defense, to question and cross-examine witnesses. The company is then entitled to appeal to a state district court in the event that the administrative court finds against them;
3. The letters of termination of service issued by the state did not contain notice of the company’s entitlement to an administrative appeal;
4. The state failed to pay $5 million in services es-Care provided and $3 million for costs incurred in connection to the cancellation of the work contract.

Res –Care has been operating under contract since 1994 until the time the contracts were terminated. It is claiming reimbursement for providing care to its clients. These clients include individuals with mental retardation, autism, cerebral palsy and other disabilities.