Economic Damages In Birth Injury Cases

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After a birth injury, the parents are generally focused on providing the best care for their child that they are not thinking about the cost. However, medical care is expensive in the U.S. Medical bills for a birth injury can add up quickly and the family may struggle to pay the bills, even with health insurance. In a birth injury malpractice lawsuit, the injury victim can seek damages from the defendant responsible for causing the injury. 

Economic Damages in a Medical Malpractice Case

Damages in a medical malpractice lawsuit are generally categorized as economic or non-economic. Non-economic damages include losses that do not have a clear dollar amount, like pain and suffering or emotional distress. Economic damages include costs and losses caused by the injury in the past, present, and future, including: 

Showing medical expenses can be accomplished by adding up all the medical bills and expenses associated with medical care. Showing loss of income can be done by adding up wages and payments before the injury and calculating the loss until the injury victim can return to work. However, loss of earning potential and future medical care may be more difficult to estimate. 

Economic damages in a birth injury case can be complicated because there are so many unknowns about the costs of the injury. Many birth injuries will require some level of care for the foreseeable future and possibly for the rest of the child’s life. Estimating income may also be difficult because there is no indication of what the child would have pursued as a profession if they had not suffered the injury and how much income they would have made over their lifetime. 

The costs of living with a birth injury depends on a number of factors, including the extent of the disability or injury, level of care required for the future, and estimated lifespan of the injury victim. 

Type of Injury and Extent of Disability

Some birth injuries only cause a physical injury but the child’s brain may be otherwise unharmed. For example, a bone fracture is a type of birth injury that a child usually recovers from. For these injuries, economic damages may only involve past medical expenses and possibly future follow-up care. Alternatively, more serious birth injuries like cerebral palsy or asphyxia can cause permanent brain damage, mental disabilities, and physical disabilities that may require medical care for the rest of the child’s life. 

Care Required

Damages can vary a lot based on the level of care required in the future. Some birth injuries, even if they are permanent, may only require limited care in the future. Injuries that leave the victim unable to perform the activities of daily life may require nursing care or in-home care for life. 

Estimated Lifespan

It is difficult to think about the estimated lifespan of a child suffering from a birth injury but the estimate is used to calculate the costs of future medical care. Some injuries do not have much of an impact on the average lifespan. However, severe disabilities and certain health conditions may decrease the average lifespan. 

Cost of Living With a Birth Injury

In coming up with a life care plan or estimating the costs of living with a birth injury, there are a number of factors to consider. Not all birth injuries will involve these damages and the costs can vary based on the individual situation.  

Medical Care

Medical care in a birth injury case includes current or past care, as well as estimated future care. The medical expenses in a birth injury delivery and neonatal care can be very expensive, amounting to hundreds of thousands of dollars before the baby is ever discharged from the hospital. Depending on the situation, medical bills may include: 

  • Ambulance transportation
  • Labor
  • Nerve-block or epidural
  • Cesarean section surgery
  • Neonatal intensive care unit (NICU)
  • Hospital stay, room and board
  • Drugs and medication
  • Blood transfusion
  • Diagnostic testing

Follow-Up Care

Follow-up care is generally required for most healthy babies but can involve a lot more care, treatment, and testing for a birth injury case. As a child grows and misses developmental milestones, the extent of a birth injury can become more clear. 

Long-Term Care

The child may need long-term care that could last anywhere from a couple of years until the rest of the individual’s life. Many parents do not think about long-term care after the baby is born because they plan to care for the child. Eventually, the child will grow up and the parents may not be able to continue caring for the child. The parents will have to plan for who will care for a disabled child in the future. Long-term care may include a live-in caregiver or skilled nursing facility.

Physical Therapy

Physical therapy (PT), or physiotherapy, uses movement, electrotherapy, exercise, joint mobilization, education, and other modalities to treat injuries and impairments. Physical therapy can be temporary or require regular treatment.  

Occupational Therapy

Occupational therapy helps people across the lifespan do things they want and need to do through the therapeutic use of daily activities.

Speech Therapy

Speech therapy can be used to treat communication disorders, communication disorders, voice disorders, and swallowing disorders. 


Some medications can be extremely costly, especially when they are required for daily treatment over the course of someone’s lifetime. For example, a brain injury at birth may require epilepsy and seizure medications for the foreseeable future.

Special Education

Some birth injuries may require special education that is not available through the local school district. The child may also benefit from tutoring, educational support, or extracurricular activities that can accommodate individuals with specific birth injuries. 

Mobility Devices

Mobility devices and aids allow people to get around when they otherwise are unable to or have difficulty walking. Mobility devices include canes, crutches, walkers, wheelchairs, and motorized scooters. 

Home Modifications

Home modifications can adapt the home to provide for the patient and provide a safe and comfortable place to live after an injury, disease, or disability.

Vehicle Modifications

Vehicle modifications may allow disabled individuals to drive. Modifications may include using a wheelchair-accessible minivan or getting a specially equipped vehicle that can be driven fully with the hands, including hand controls for braking and accelerating, touch ignition pads, and adjustable seats.  

Future Lost Wages

A birth injury may limit an individual’s future job prospects and potential wages. A severe disability may prevent the individual from ever seeking meaningful employment. Without a job, the disabled child may be denied an income they would be able to earn if they had not suffered a birth injury.

Life Care Plan and Calculating Damages for Settlement or Trial

The economic costs of a birth injury could only accurately be counted at the end of the child’s life. In a birth injury malpractice case, the plaintiff is attempting to estimate what the total costs of the injury will likely be, years or decades before the costs are ever calculated. In these cases, an expert witness is used to estimate economic damages. 

An expert witness can use information like past medical expenses, current medical care costs, inflation estimates, occupational data, and life expectancy of the injury victim to come up with an estimate of future expenses. The expert witness may create a report that includes a life care plan, with high, low, and median estimates. The expert witness may also testify before a jury on how they came up with the estimated economic damages.

Payment from Insurance or Government Does Not Reduce Damages

In many birth injury cases, the costs of care may be shared by the family, insurance company, or government agency. However, when calculating economic damages for a birth injury case, the injury victim can recover the full damages from the defendant without regard to payments from other sources. This is known as the collateral source rule. 

For example, if a baby suffers hypoxic-ischemic encephalopathy (HIE), the baby may need medical care for the rest of their lives. The baby may be covered by private insurance. The baby may also be eligible for state or federal programs in the past or in the future, like Medicare or Social Security Disability Insurance (SSDI). In general, the defendant in a medical malpractice claim could not present evidence of these payment sources and the full cost of future medical care could be determined even if the child receives some future benefits. 

One of the reasons for this rule is there is no guarantee that the government benefits plan will still be in place or still cover the child in the future. If the future benefits were subtracted from damages but the child never receives the benefits, the victim would be left without a way to pay for their expenses caused by the defendant’s negligence. 

Another justification for the rule is that the wrongdoer should not benefit from the plaintiff’s foresight in paying for insurance to cover possible injuries. The cost of the defendant’s negligent behavior should be carried by the defendant who caused the damage in the first place.

Maryland Birth Injury Collateral Source Damages

In Maryland, “the collateral source rule permits an injured person to recover the full amount of his or her provable damages, regardless of the amount of compensation which the person has received for his injuries from sources unrelated to the tortfeasor.” Haischer v. CSX Transp., Inc., 381 Md. 119, 132, 848 A.2d 620, 628-29. 

Philadelphia Collateral Source Damages

In Pennsylvania, the collateral source rule, “prohibits a defendant in a personal injury action from introducing evidence of the plaintiff’s receipt of benefits from a collateral source for the same injuries which are alleged to have been caused by the defendant.” Simmons v. Cobb, 906 A.2d 582, 585 (Pa. Super. 2006).

DC Collateral Source Damages

In Washington, D.C., “an injured person may usually recover in full from a wrongdoer regardless of anything he may get from a ‘collateral source’ unconnected with the wrongdoer.” District of Columbia v. Jackson, 451 A.2d 867, 870 (D.C. 1982).

Questions About Economic Damages in Birth Injury Cases

At Gilman & Bedigian, our aggressive birth injury lawyers have helped our clients and their families recover millions of dollars in compensation related to birth injuries caused by medical negligence. Contact us online or call our law office at (800) 529-6162 for a free consultation.

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