After your child suffers a birth injury, you will want to provide the best care possible. However, parents cannot avoid the fact that medical care and specialty care in this country is expensive. Providing a lifetime of care can cost millions of dollars over the course of decades. When the injury was caused by a negligent doctor, the parents should be able to seek compensation from the hospital and doctors.
In a birth injury lawsuit, the injury victims can file a personal injury claim for damages. The claim is made against the parties liable for the accident, which could include doctors, nurses, surgeons, medical providers, hospitals, and clinics. The claim for damages includes all the losses, costs, and anticipated future expenses associated with the injury.
If you suspect a medical error or malpractice was a cause of your child’s birth injury, contact a birth injury attorney for help. An experienced birth injury lawyer can help you get answers and understand how much your case may be worth. Contact our birth injury law office today online or by phone at 800-529-6162 for a free consultation.
What is Birth Injury Compensation?
Birth injury compensation is the award the victim receives to pay for their losses, injuries, and damages. In a birth injury malpractice claim, compensation is generally an amount of money that is intended to cover the medical bills, treatment costs, therapy, and future costs of care. Damages can also include the loss of income or income potential, if the child had not been injured. Other birth injury damages can compensate the child for the pain they may have to suffer for the rest of their lives caused by the medical error.
Birth injury compensation may depend on the extent of the injury and whether the damage was temporary and permanent. Other factors that may influence the amount of compensation include:
- Vision damage
- Hearing damage
- Brain injury
- Mental impairment
- Physical impairment
- Scarring or disfigurement
- Loss of a limb
- Paralysis
- Need for full-time care
- Likelihood of recovery
- Life-expectancy
Compensation is supposed to provide financial relief to someone who suffered loss or harm. Compensatory damages are intended to put the victim into a similar position they would have been but for the negligent actions. This is easier to think of in a non-injury car accident case. If someone hit your car because they were speeding and you did not suffer any injury, paying to repair or replace the car would be the amount of compensation.
Compensatory damages are more difficult to consider if someone is injured or killed in an accident. If you suffer a permanent back injury and chronic pain after a car accident, the damages may be much greater. Damages will still have to pay to repair or replace the car. However, damages must also include the costs of medical care and days off of work. If the damage is permanent, chronic, or the injury victim is no longer able to work, the damages could include future care estimates, pain and suffering payments, and loss of income potential.
Types of Medical Malpractice Damages
Different types of damages are available in different personal injury cases. Damages in a birth injury claim can be categorized as:
- Economic damages
- Non-economic damages
- Punitive damages
- Wrongful death damages
- Damages to the parents and family
Economic Damages
Economic damages are the financial costs and losses caused by the injury. This can include expenses for medical bills and the loss of future financial opportunities. Even future costs can be calculated and included in the birth injury calculation. Generally, economic damages fall under the following categories:
- Medical expenses
- Loss of income
- Future medical care
- Loss of earning capacity
Economic damages can be calculated by adding up all the medical expenses, and estimating the cost of future care, including long-term care facilities, if necessary. Estimates may also include the average income for a similarly situated person across the course of their life. For a child with a birth injury requires extensive care and limits their future independence, the economic damages could be significant.
Non-Economic Damages
Non-economic damages include losses that do not always have a clear dollar value. Non-economic damages in a birth injury may include the pain and emotional trauma the victim will have to endure for the remainder of their life. These damages may include:
- Pain and suffering
- Loss of enjoyment in life
- Emotional distress
- Loss of consortium
Many states put a cap on non-economic damages, including Maryland. Caps limit the maximum amount a jury can award for non-economic losses. Even if a jury found a fair amount to award the injury victim, a judge would reduce the award if it is more than the statutory amount.
Exemplary Damages and Punitive Damages
Punitive damages may be part of an award that is intended to send a message to the wrongdoers. Also called exemplary damages, these are meant to punish the reckless actions of the defendants. However, punitive damages are very rare in birth injury cases. Punitive damages are generally limited to cases where the doctor intentionally harmed the victim or there was actual malice on the part of the doctor or hospital officials.
Damages for the Parents and Family
Even though the primary injury affected the child, the parents and other family members may also have damages associated with a birth injury. If the parents are no longer able to work because they have to care for their child, they may be able to seek compensation for the loss of their income.
The mother could have suffered serious injuries during childbirth or delivery. For example, if the doctor used improper delivery procedures, it could increase the risk of traumatic injury to the mother, causing hemorrhaging and blood loss. An improperly treated infection could lead to serious complications, including loss of a limb or septic shock. The mother may also be able to file a claim based on a birth injury.
Wrongful Death Damages
If the baby dies because of the birth injury, the child is no longer alive to recover damages from the negligent hospital or doctor. However, a wrongful death lawsuit may allow family members to file a claim on behalf of the injury victim to recover damages. A wrongful death claim may be important to hold the negligent parties responsible for their actions. This can help reduce the risk of future injury and help protect other families from a similar tragedy.
An infant wrongful death case generally refers to the death of a newborn that passed away within the first 28 days after birth. Even though the baby was young, there are damages that can provide for family members after a tragic loss. Damages in a wrongful death case can include:
- Costs of medical care
- Burial expenses
- Funeral costs
- Loss of consortium
Calculating Future Costs and Expenses
How are you supposed to calculate the costs, losses, and expenses for future events? The long-term future for a developmentally disabled child can be unclear. When calculating future costs and expenses, birth injury lawyers consult experts. This includes:
- Medical experts
- Life care planning experts
- Therapy experts
- Disability experts
- Plastic surgery experts
- Occupational experts
- Earning capacity experts
- Forensic psychology experts
Future costs and expenses are generally based on the facts specific to the child’s case, along with financial statistics, health care statistics, inflation, and cost calculations. The Centers for Disease Control and Prevention (CDC), estimated the lifetime economic costs associated with the following conditions:
- Mental retardation: $1,014,000
- Cerebral palsy: $921,000
- Hearing loss: $417,000
- Vision impairment: $566,000
The estimates from the CDC included physicians’ visits, hospital inpatient stays, prescription medication, assistive devices, therapy and rehabilitation, and long-term care, adjusted for age-specific survival averages These estimates were from 2003. With inflation, those amounts could reflect the following amounts in 2021:
- Mental retardation: $1,460,755
- Cerebral palsy: $1,326,781
- Hearing loss: $600,725
- Vision impairment: $815,372
In reality, the costs may be even higher because inflation for health care costs has risen faster than overall inflation. The cumulative inflation rate from 2003 to 2021 was about 44%. However, the inflation for health care costs from 2003 to 2021 was about 60%. There is no indication that health care costs will slow down in the future. This is important to consider when calculating birth injury compensation for a baby who may live another 80 or more years, and require regular medical care.
Expert Witnesses and Expert Reports
Expert witnesses and expert reports are used in birth injury cases to help explain complex issues to the jury. To be considered an expert, the witness needs to qualify under the state’s Rules of Evidence. The federal expert witness requirements include a witness who is qualified as an expert by knowledge, skill, experience, or education, to testify in the form of an opinion, if:
- The expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
- The testimony is based on sufficient facts or data;
- The testimony is the product of reliable principles and methods; and
- The expert has reliably applied the principles and methods to the facts of the case.
Each side in a civil case may use their own expert witness or witnesses. The plaintiff’s experts will review the case and provide their opinion on the case. The expert may prepare an expert report, which is exchanged with the defendants. The defendants may depose, or question, the other side’s experts, and vice versa. If the case goes to trial, the experts may be called on to testify to the judge and jury about their opinions in the case.
For example, if a baby suffers a physical birth injury, they may be concerned that the child will be limited in their future professional options and may be too disabled to get a job. Experts can examine the baby and review the medical records to help show the injury was caused by malpractice. Experts can provide an opinion on the future physical recovery and chance of disability. A life care planning expert can give the jury their opinion on the future financial outlook for the injury victim. This information can help the jury determine liability in a birth injury lawsuit and calculate estimated damages.
What if the doctor claims they don’t have enough money to pay for damages? Can we still get compensation?
A doctor may claim they do not have enough money to pay for damages but there are usually multiple defendants that may be involved or other parties may be liable. Doctors and hospitals generally carry medical malpractice insurance. When a malpractice victim files a claim against the doctor or hospital, the insurance carrier steps in to handle the claim. The insurance company generally uses their own lawyers to try and challenge the claim or get as low a settlement offer as possible.
Medical malpractice insurance policies may have a million dollars or more in liability coverage. In a more extreme birth injury case, the policy may be exhausted by the award amount. However, there may be multiple defendants. Errors could have been made by multiple doctors during pregnancy, labor, and perinatal care. Depending on the laws of your state, the injury victim could be able to claim the full amount of damages from each or one single defendant. This is known as “joint and several liability,” which means a defendant is liable for the entire verdict, even if they were only partially at fault.
Even if a doctor was to blame for causing the injury, the hospital may also be liable. Vicarious liability allows an injury victim to seek compensation from an employer. If the doctor was an employee of the hospital or clinic, the hospital may be vicariously liable for damages. This is also known as “respondeat superior.”
Do You Have Questions About Birth Injury Compensation?
Many parents are not sure if their child’s injury or delayed development was caused by a medical mistake. If you have any questions, you may be able to get a free consultation from an experienced birth injury law firm. Birth injury lawyers have experience helping parents determine if they can be compensated for their child’s injuries.
It is important to understand that there may be a limited amount of time to file a birth injury claim. If you file your claim after the statute of limitations has run out, your case may be barred. However, many states have exceptions or extended filing time for birth injuries, so make sure you don’t wait too long to ask for help. Contact Gilman & Bedigian online or at 800-529-6162 for a free consultation.