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When a patient is injured because of a medical mistake, the victim deserves compensation for their losses. In a birth injury case, the damages can be substantial because a birth injury can affect the patient and their family for life. Damages include more than just medical bills and loss of income. Damages in a birth injury case can include pain and suffering and other losses that do not always have a clear cost.
Non-Economic Damages in a Medical Malpractice Case
Damages in a medical malpractice lawsuit are generally categorized as economic or non-economic. Economic damages include costs and losses caused by the injury in the past, present, and future, including medical expenses, loss of income, and loss of earning potential.
Non-economic damages include losses that do not have a clear dollar amount. Non-economic damages are easy for people to understand but harder to put a clear number on. These may be internal losses and difficulties that the injury victim and family have suffered from the accident and injuries. Non-economic damages may include:
- Pain and suffering
- Loss of a limb or body part
- Disfigurement and scarring
- Loss of enjoyment in life
- Emotional distress
- Post-traumatic stress disorder (PTSD)
- Family loss of companionship or support
Pain and Suffering in Birth Injury Cases
How do you determine what kind of pain and suffering a child endures after a birth injury? When a child suffers a birth injury caused by a negligent delivery, it can impact the child for life. The child may never have the chance to recover from their injury and could suffer permanent harm. This could include living with:
- Cerebral palsy
- Spinal cord injuries
Physical injuries can prevent a child from participating in activities of daily living. Many birth injuries leave a child requiring around-the-clock care for life. Birth injuries may also leave a child with chronic pain. A child with a birth injury may have developmental disabilities that limit their opportunities to have a normal life. Cognitive impairments can include:
- Memory loss
- Problems with judgment and reasoning
- Difficulty processing new information
- Impulse control problems
- Difficulty selecting the right words
- Changes in mood or personality
- Depression or anxiety
- Dementia-like symptoms
Determining the amount of pain and suffering for a birth injury depends on a number of factors, including the extent of the disability or injury and estimated lifespan of the injury victim.
Paralysis or Loss of Function
Brain injuries, hypoxic-ischemic encephalopathy (HIE), and spinal cord injuries can lead to paralysis, blindness, deafness, or loss of body function. If a child is paralyzed after a medical error, most people understand that the child should be compensated for their loss of function. The amount of compensation for loss of body function may depend on the extent of the injury, other injuries, pain involved, limited function, and other factors.
Emotional Distress After a Birth Injury
A birth injury also has an emotional toll and could cause mental health problems. Children with a physical deformation, mental impairment, or other birth injuries can grow up feeling ashamed or embarrassed because of their injuries. This can cause depression, anxiety, or even post-traumatic stress disorder (PTSD). These mental conditions can cause suffering and impair the child’s ability to lead a full life.
Loss of Family Relationship After a Birth Injury
Parents may also suffer non-economic damages after a birth injury. The mother and father may have anticipated giving birth to a healthy child. Instead, a doctor’s mistake, negligence, or reckless actions could have caused a permanent injury to the child, leaving the child and parents victims of the doctor’s error.
Loss of consortium is a term that refers to the loss of companionship. Filial consortium damages are supposed to compensate a parent for the loss of affection, companionship, and the relationship that is caused by a child’s injury or death.
Calculating Non-Economic Damages
Trying to figure out what non-economic damages a child will suffer over the course of their lifetime can be difficult. If you have questions about damages after a birth injury, talk to an experienced birth injury malpractice lawyer. Your attorney can help you understand what kinds of losses the child and family will likely face in the years ahead.
Many families feel comforted after talking to a birth injury lawyer to know that they are not alone and they have an advocate on their side to help them through the difficult process.
Caps on Non-Economic Damages
Some states place a cap on non-economic damages in medical malpractice cases. Why would the law limit the amount of recovery for an injury victim? The short answer is because insurance companies and lobbying groups want to make more money. The healthcare industry wants to protect their wealth, even if they are liable for injuring patients through medical mistakes and malpractice.
It may seem unconscionable that the pain and suffering felt by a child after a birth injury could be limited to a set dollar amount. Some states, including California, Texas, and Iowa have set caps as low as $250,000. Imagine a child suffers a birth injury and has to deal with pain, limited function, paralysis, or disfigurement every hour of every day for the next 70 years. Caps on these damages tell the child that 70 years of pain and suffering is worth less than $10 a day.
The healthcare industry claims that caps will lower healthcare costs and improve care. However, research has shown that damages caps in medical cases do not lower cost or improve care. An appeals court in Wisconsin found that damages caps are unconstitutional. The court found insufficient evidence that the damages cap had accomplished what it intended, to lower cost and improve care. Instead, caps punished the most severely injured patients and malpractice victims.
A number of states have found malpractice caps to be unconstitutional, including Florida, Georgia, Oklahoma, and Washington. Unfortunately for injury victims in other states, the healthcare industry and insurance companies continue pushing to eliminate or reduce non-economic damages, no matter how much pain was caused by negligent doctors.
Juries are Kept in the Dark on Damages Caps
One of the strange effects of limiting caps on non-economic damages is that juries are generally unaware that there is a cap on damages. This means a jury could look at a birth injury case and find the injury victim should receive $1 million for pain and suffering. However, the judge would later cut that down to the maximum cap and the jury may never know. For example, under Maryland law, “if the jury awards an amount for noneconomic damages that exceeds the limitation established […], the court shall reduce the amount to conform to the limitation.”
No Cap on Non-Economic Damages in Pennsylvania
There is no statutory cap on non-economic damages in a birth injury case in Pennsylvania. Under Article III, Section 18 of the Constitution of Pennsylvania, “in no [other than workers’ compensation] cases shall the General Assembly limit the amount to be recovered for injuries resulting in death, or for injuries to persons or property.”
Limits to recovery for pain and suffering and other non-monetary detriment are prohibited by the constitution of the commonwealth. Juries have the discretion to look at the losses the injury victim suffered in determining damages. The only limits to damages apply to claims against the state government or local government.
Caps on Non-Economic Damages in Maryland
Unfortunately for families and patients in Maryland, there is a cap on non-economic damages in birth injury cases. Under Courts and Judicial Proceedings § 3-2A-05, “an award or verdict under this subtitle for noneconomic damages for a cause of action arising between January 1, 2005, and December 31, 2008, inclusive, may not exceed $650,000.”
The limitation increases by $15,000 each year, beginning January 1, 2009. As of January 1, 2020, the cap on non-economic damages is $875,000. In 2021, the cap on non-economic damages will be $890,000 and in 2022, the cap on non-economic damages will be $905,000.
No Cap on Non-Economic Damages in Washington, D.C.
Washington D.C. does not have a cap on non-economic damages in birth injury cases. The insurance companies and lobbying groups try to get caps in place to reduce their liability, no matter how harmful the actions of the negligent doctor. Fortunately for residents, lawmakers in D.C. understand that a jury can make a rational decision on the losses suffered by a family after a birth injury. As a result, there is no set maximum amount of damages an injury victim can receive in a medical malpractice or birth injury case in Washington D.C.
Questions About Damages in Birth Injury Cases
If you have any questions about damages after a birth injury or medical mistake, speak with a medical malpractice attorney who has experience with these complex 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.