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What kind of damages are available in a birth injury lawsuit and how much can we expect to recover?
Damages in birth injury cases are generally high because an injured child sues for a lifetime of losses. In California, in 2005, the MIEC Large Loss Study indicates insurers paid out an average of $3.69 million for each of the 7 birth injury cases in the study, and all 7 cases were settlements, not verdicts.
A variety of different damages are available in birth injury cases:
Economic Damages include costs associated with the injury now and in the future (medical care, rehabilitation, special education needs, nursing assistance) and future lost earnings.
Non-Economic Damages for physical pain and suffering, mental and emotional suffering, inconvenience, disfigurement and loss of enjoyment of life are available. In many states there are limits on the amount of non-economic damages available to an injured child in a birth injury case. For example, California limits non-economic damages in birth injury cases to $250,000.
Punitive Damages are awarded to punish the defendant and to deter others from committing the same act. Punitive damage recovery is possible in a birth injury case, but is frequently difficult to obtain because the injured party must show that the health care provider's conduct was malicious, intentional, or reflected a complete indifference to the safety of the baby. Punitive damages would be available where the OB/GYN threw a newborn baby to the ground.
Estimating damages in a birth injury lawsuit is difficult and settlement amounts and verdicts vary widely from state to state. A variety of different things affect the amount of damages. For example, in California, pain and suffering in a birth injury case is limited to $250,000. In a state where there is no limitation on damages, a child could recover pain and suffering damages in the millions. In these states, a child who suffered a brain injury and is partially blind will likely not recover as much in economic damages as a child with severe cerebral palsy who will require around the clock care and will never be able to work.
In addition to damages that are awarded to your child, you may get some money for your personal losses, including 1) payment for the income your child may have been able to contribute to the family, 2) reimbursement for your child’s medical expenses, 3) what it will cost in the future to take care of a disabled child—for example the cost of specialized daycare or assistance in the home, and 4) in some states, damages for the emotional distress caused by your child’s injuries.
Seek the advice of an experienced lawyer right away if you and/or your baby has suffered from birth injuries. |
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