A California mother was pregnant with twins that were receiving nourishment through a single placenta in the womb. This is considered a very rare occurrence and is usually a cause for concern. The mother of Brian C. was placed in the care of a family physician through Contra Costa County’s Department of Health. During a pregnancy exam, an emergency suddenly required performance of a C-section and Brian’s twin died. Brian sustained damage to his brain leaving him with deficiencies in motor skills and verbal communication. The family pursued a claim of medical malpractice and received a jury award in 2014 of $12.1 million allocated for damages including past and future medical expenses and losses of future income.
Unfortunately, the family has yet to receive one dollar of the award. The matter was appealed and the court determined a retrial was appropriate exclusively for purposes of determining the future medical expense portion of the award that was $9.577 million of the total, which will occur in 2018. AIG, the Contra Costa County insurer, is holding the remaining unrelated $2.3 million part of the award, even though it is not currently contested. The family is basically stuck in the slow moving legal system, dependent on two financially challenged state agencies for public assistance.
Situations where injury victims spend 3-5 years before actually receiving funds to truly begin intensive treatments or therapy certainly can motivate a plaintiff to consider a mediocre settlement. Their attorney explained that he and the family are extremely frustrated in the inability to access funds that are much needed to obtain specialized therapy for Brian.
Based on the high-risk pregnancy, the plaintiff’s attorney feels that the county should have assigned a specialist to her. The county still places those with higher-risk pregnancies in the care of general family practice physicians, likely based on economic factors and availability. The care Brian receives from the county agencies is only a small percentage of the treatment that he needs.
There are many factors that plaintiffs in these situations may consider in deciding whether to settle a claim or proceed to trial including:
- Stress: Trials can be highly stressful and may require many hours of preparation for testimony and cross-examination.
- Unpredictability: There are unforeseen problems that arise in a trial. Perhaps the defense successfully petitions the court for the exclusion of key evidence? A witness could appear as inconsistent or lacking credibility under scrutiny. A settlement effectively eliminates the potential for unknown variables to affect the future of the claim.
- Dependence on a jury: Members of the jury have considerable discretion on the value of a damage award. A settlement is based on a mutually agreed upon monetary award.
- Delay: Trials generally take over a year to begin, and a subsequent appeal may extend the process much longer compared to the finality of a settlement. Due to the length of time that may pass during proceedings, states like California generally add interest at a rate of 10% to awards.
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