A birth injury can be devastating for parents. After waiting months for your new baby to arrive, you may discover the child was injured during delivery or something went wrong during the pregnancy. When a child’s birth injury was caused by medical negligence, the parents can recover damages to help pay for the child’s care.
It may seem unconscionable that families in some states cannot recover full damage awards from a medical malpractice lawsuit because state law puts a cap on damages. The good news for families in Chicago is that there is no cap on non-economic damages for birth injury cases in Illinois.
If you have questions about recovering compensation for a birth injury, contact experienced medical malpractice trial attorneys to help you make sure you have the resources you need to give your baby the best care available.
No Cap on Birth Injury Damages in Illinois
Damages are the losses related to a medical malpractice injury. Damages can include both economic damages and non-economic damages. In a birth injury lawsuit, the jury can award an amount of money in damages that the defendants (doctors and hospitals) have to pay the plaintiff (patient). The money is meant to compensate the injury victim for their losses.
In some states, there are laws that limit the amount of money that can be awarded in non-economic damages, especially in medical malpractice cases. States put limits on jury awards because the healthcare industry spends a lot of money lobbying politicians to limit awards. This means that even if a jury finds a negligent doctor responsible for causing serious injuries, the doctor won’t have to pay the full amount of damages.
Some states have refused to pass these laws that put medical profits before patients. Other states have found these laws to be unconstitutional under state law. This was the situation in Illinois.
Short-Lived Damages Cap in Illinois
In 2005, Illinois lawmakers backed by doctors’ groups, insurance companies, and hospitals passed a law that capped damage awards for pain and suffering at $500,000 against doctors and $1 million against hospitals. Only 5 years later, the law was struck down by the Illinois Supreme Court in 2010 as unconstitutional.
Doctors groups try to claim these laws that benefit the healthcare industry lower costs and increase access to healthcare. However, a study by the Center for Justice & Democracy found “caps do not lower insurance premiums for doctors, and insurance insiders admit it.”
According to the study, “history repeatedly shows that capping damages will not lead to lower rates, because what drives rate hikes has nothing to do with a state’s “tort” law.” Looking specifically at the Illinois example, the study found that caps never really affected settlements or insurance rates over the 5 years the law was in effect.
What Is Included as Damages in a Birth Injury Case?
In a birth injury case, the type of damages awarded is known as compensatory damages. This means the money is intended to compensate the injury victim to put them into a similar position as they would have been as if the accident had not occurred.
This is easier to think about with a car accident. If someone hits your car and causes $5,000 in damage, they may be required to pay you $5,000 to repair the car. After the car is repaired, it should be in a similar condition as it was before the crash. This is an example of economic damages.
In a personal injury claim, compensatory damages are not as clear, especially when the accident causes permanent injury or death. If a doctor makes a medical error and the injury victim is left with extensive scarring and chronic pain, no amount of money can put them back into the same position they were before the accident.
In some ways, medical injury claims can make up for some of this by also compensating someone for pain, disfigurement, and loss of joy in life. These are sometimes known as non-economic damages. Non-economic damages are also the target of most damages caps in states that allow caps.
Calculating Economic Damages
In a medical malpractice lawsuit, the injury victim makes a claim for damages, including economic and non-economic damages. Economic damages are based on the costs of care, past medical bills, current medical expenses, and future losses. Economic damages in most medical malpractice cases are made up of:
- Medical bills
- Future medical care
- Lost wages
- Future loss of earning opportunities
In a birth injury case, the economic damages can be more complicated. Some birth injuries require a lifetime of care. It can be more difficult to know the full value of economic losses caused by a birth injury because the losses will continue for years into the future as the child continues to require medical care. Economic damages for a birth injury case can include:
- Medical expenses
- Future medical care
- Living costs
- In-home care or residential living facility
- Home and vehicle modifications
- Special education
- Lost income
- Loss of earning capacity
If an adult is injured and no longer able to work, their future lost earnings can be based on their past work history. However, with a child or infant, the child may never be able to have a job or only be able to find low-wage jobs because of their disabilities. It does not seem fair to punish a child who cannot work because they were injured while they were too young.
In a birth injury lawsuit, expert witnesses can use statistics and economic calculations to come up with a range of possible scenarios that would have happened, but for the birth injury. For example, an economic expert provides a report with a low, high, and median estimate for how much an average person would make over a lifetime. This amount, adjusted for future earnings, could be included in the economic damages for a birth injury lawsuit.
What Are Non-Economic Damages?
Non-economic damages are subject to caps in states which allow damages caps for birth injury claims. Fortunately for Chicago families, Illinois does not put a cap on non-economic damages. Non-economic damages can be difficult to get an exact dollar amount because these losses do not have a clear value. Non-economic damages in a birth injury case can include:
- Pain and suffering
- Loss or decreased function of a limb or body part
- Paralysis
- Disfigurement
- Loss of enjoyment in life
- Emotional distress
- Post-traumatic stress disorder (PTSD)
- Loss of companionship or support
If an infant suffers a birth injury that causes them to suffer seizures for the rest of their life, what amount of compensation will address that child’s pain and the family’s stress of dealing with seizures for life?
In reality, juries are very understanding about non-economic damages and can come to a fair assessment of the amount of an award that fairly compensates injury victims and their families. Jury members have a lot of life experience and may have seen others who have to deal with similar issues and understand what it is like. Juries are the best judges of non-economic damages awards.
Punitive Damages in a Birth Injury Case
Some negligence lawsuits also allow for punitive damages. Punitive damages, also called exemplary damages, are meant to punish the wrongdoer for their actions. These damages can also be used to send a message to others to deter them from engaging in similar harmful actions.
Punitive damages are often calculated as a percentage of the economic damages. Under Illinois law, in negligence lawsuits and product liability, punitive damages “shall not exceed 3 times the amount awarded to the claimant for the economic damages.”
Punitive damages are rare in birth injury cases. Under Illinois law, punitive damages are not allowed in medical malpractice cases. These damages are generally limited to extreme cases, where someone did something intentionally or intentionally tried to cover up their involvement. Most birth injury cases that involve malpractice are because the doctor failed to take the proper course of action and not because they intended to harm anyone.
If you have questions about whether punitive, exemplary, or aggravated damages are allowed, talk to your medical malpractice attorney.
Why Are Awards in Birth Injury Cases So High?
Awards in birth injury cases can amount to millions of dollars. For example, in 2021, Attorney H. Briggs Bedigian was the lead attorney on two record-setting birth injury medical malpractice cases that resulted in verdicts of $55 million and $21 million. This is one reason that families seeking justice after a birth injury turn to medical malpractice attorneys with a proven track record, like Gilman & Bedigian.
One of the reasons why birth injury awards are so high is because the child will require care for the rest of their life, which could mean another 70 years or more of around-the-clock care. These injury victims will require care after their parents and family members are no longer able to provide the care they need. As anyone who has ever gone to the doctor knows, medical care in the United States is shockingly expensive.
According to the CDC, the financial costs of lifetime care for a child with cerebral palsy would be more than $1.5 million in today’s costs. For a child with mental retardation, the lifetime costs could be almost $2 million.
Another reason why there are high damages is because a permanent injury takes away from a child most chances of a normal life. Economic damages can include a lifetime of earnings that will never be possible because of the child’s injuries. If the average person works 40 to 50 years in their life, lost future earnings could be into millions of dollars, even for the average worker in the U.S.
Is There a Time Limit to File a Birth Injury Malpractice Lawsuit?
There is no cap on damages for a birth injury claim in Illinois but there is a cap on the amount of time you have to file a lawsuit. The time limit to file a malpractice lawsuit is known as the “statute of limitations.” For most personal injury and wrongful death claims in Illinois, there is a 2-year statute of limitations.
Under Illinois statute 735 ILCS 5/13-212, there is a 2-year statute of limitations for most medical malpractice claims. The victim in a medical mistake accident has 2 years from the date of the injury to file a lawsuit against the doctors, nurses, hospital, or healthcare provider. However, there are some exceptions, including for minors who were injured by a medical error.
Under Illinois law, minor victims of medical malpractice under the age of 18 have up to 8 years from the date of the injury to file a claim. However, no action for an injury to a minor may be filed after the minor victim reaches the age of 22. For most birth injury lawsuits, this means an infant who suffers a birth injury has to file a medical malpractice lawsuit before their 8th birthday. Even though the injury victim is still a child, the laws limit the time to file a lawsuit to a maximum of 8 years.
Which States Have a Cap on Birth Injury Damages?
Different states have different birth injury damage limits. About half of states have caps on non-economic damages and the other half do not have caps, like Illinois. As of 2021, states with a cap on non-economic damages in medical malpractice cases include:
- Alaska
- California
- Colorado
- Hawaii
- Idaho
- Indiana
- Iowa
- Louisiana
- Maryland
- Massachusetts
- Michigan
- Mississippi
- Missouri
- Montana
- Nebraska
- Nevada
- New Mexico
- North Carolina
- North Dakota
- Ohio
- South Carolina
- South Dakota
- Tennessee
- Texas
- Utah
- Virginia
- West Virginia
- Wisconsin
Get More Information About a Chicago Birth Injury Lawsuit
An experienced medical malpractice attorney can look at your case and help you understand your options if your child suffered a birth injury. Your legal team can review your medical records, identify possible medical negligence, and evaluate your claim. If there is potential medical malpractice involved in your child’s birth injury, your attorney can fight to get you the maximum compensation available.
If you want to know about your legal options after a birth injury, contact an experienced legal defense team for a case evaluation. Do not hesitate to contact Gilman & Bedigian today for a free consultation.