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A parent’s birth injury guide from your everyday superhero lawyer

Most parents are not aware of their rights to recover damages after having their children suffer impairment - even loss of life at times - as a result of negligence during the birthing process. Cape Town's superhero medical lawyer Olof Joubert shares 5 facts that every parent should know when it comes to their children and disability law.

When it comes to the sensitive topic of child disabilities, the facts and figures are unknown to many – a grey area that most are sometimes too afraid to enter, but not for him! 

Olof, whose second name is “Abraham” tackles these challenges head on, and just as his name is viewed as meaning “father of many” he has made it his mission to help those in need.

As he explains, many infants have suffered injury or harm at the hands of a doctor or hospital. Instituting a personal injury claim can’t make up for what has happened.

However, Olof believes that a successful claim may cover costs associated with the injury. It also serves as an important reminder to those responsible for the injury, helping prevent the recurrence of such incidents in the future.

Birth injury facts every parent should know

Olof, who operates from his legal practice, OJ Law in Pretoria, shared 5 facts that every parent should know when it comes to their children and disability law.

  • FACT 1: If a medical practitioner fails to meet accepted standards of treatment and care expected in the specific situation and either acts or fails to act in a way that results in injury  to the patient, it may constitute medical negligence.

Why: Because he/she deviated from specific protocols which were put in place specifically to avoid situations like these. All professionals are guided and taught specific protocols for specific situations in order to have the best outcome.

  • FACT 2: The records of mother and child – before, during and after the birth – are needed. Keep all your records on file, and keep copies.

Why: A case has to be proven on a balance of probabilities by the person who institutes the action. In our cases, this would be the mother/father of the child. If one does not have sufficient records, it becomes tougher for experts to do an opinion on negligence as they now have to rely on the version of the mother, for example, in cases of birth injuries. We also have to then rely on the client’s version which entails recollections which sometimes become tough to pinpoint with time delays, specific events etc.

Olof Joubert is a medical malpractice attorney with specific interest in babies and young children who suffer impairment
  • FACT 3: Many hospitals use terms like “delayed milestones” and offers explanations only called “cerebral palsy” as a “natural“ occurrence and explanation to parents as to why their children have sustained brain damage.

Why: Many parents are illiterate and uninformed. They think that what the doctor says,must then be the truth and the only reason that their child’s condition exists. In this way, the hospital shuns away liability and a potentially huge claim against themselves. This by simply misinforming the patient. 

  • FACT 4: A parent does not need to have money in order to claim damages by appointing a lawyer.

Why: Because we work on contingency in terms of the Contingency fee Agreement Act which provides for an attorney to take on the case on his risk and when the client wins, the attorney may double his fees limited to 25 % of the amount he obtained for the client. If the client loses, his/her attorney may not charge them anything.

  • FACT 5: Many parents and communities blame the child’s condition on witchery and black magic. They then resort to giving their children ‘Muti’ which in itself has more dire effects on an already compromised little body.

Why: A few factors are in play here. One of them are the deep rooted cultural beliefs. The other is denial of the condition the baby is born with. Although congenital brain injuries do exist (which is not attributable to negligence), many children’s brain damage occurs as a result of negligence. It is that perception that needs change. The only way to change it, is to show the results.

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