Know the Value of a Birth Injury Claim
UPDATED: February 24, 2020
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Money damages in a birth injury case—compared to other personal injury cases—are unique in the high dollar amounts and the expertise required in determining what the actual cost of the injury is. Lawyers usually have to hire a variety of experts, including economists and rehabilitation specialists, to come up with an amount. In many states parents can recover damages for actual costs of the injury such as treatment, constant care, and rehabilitation, and damages for difficult to calculate costs such as emotional distress. Consult an attorney for information about damages you can collect for a birth injury in your state.
Types of Damages Available in Birth Injury Cases
A variety of different damages are available in birth injury cases. Some of these damages are calculated based on losses suffered by the child, meaning the payout is to the child. As you calculate the losses suffered by you and by the child, consider the following available damages:
- 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.
- 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.
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.
Settling a Birth Injury Claim
You do not need to pursue a lawsuit to receive compensation for your child's injury - you can pursue alternative methods such as mediation or arbitration to reach a settlement or have a neutral party determine damages. Some health plans, like Kaiser, demand the use of arbitration to deal with medical malpractice cases, precluding you from immediately filing a lawsuit in the first place. Some doctors have their patients sign a consent form which includes an arbitration clause.
There are advantages and disadvantages to handling a birth injury case in arbitration. Arbitration tends to be faster and less expensive, but there is no jury. Sometimes it is good to have a jury decide a birth injury lawsuit because they tend to be sympathetic towards injured children. Whether you have an arbitration clause or not, contact an experienced personal injury attorney as soon you suspect a birth injury.
With the help of a lawyer, you may be able to deal directly with your doctor’s medical malpractice insurer and agree on a settlement amount. That may be an option where it is clear that malpractice occurred (e.g., your child’s doctor admitted it to you) and the settlement amount will be low (e.g., your child suffered a broken collar bone that is expected to heal.) You also need to keep in mind that there are time limits for filing a birth injury claim, so while you are considering your options, you always want to be aware of the deadlines.
Most cases are settled during the process of collecting information during the initial stages of a claim or lawsuit. Your lawyer will talk to you about appropriate settlement amounts, and when the other side offers to settle, you have the final say. If you decide to settle, the lawsuit ends, and you cannot come back for more money – make sure you know the value of your claim before agreeing to a settlement!
What Happens to Settlement Money
When a birth injury lawsuit is settled, money is first paid out of the settlement to the various parties who are owed money, such as doctors who haven’t been paid for treating the child, the lawyer for fees and expenses, the insurance company, and to parents for their out-of-pocket payments to doctors.
The remainder of the settlement money can be paid to the parents to be used on the child’s behalf, or, more commonly, placed in a blocked account and/or an annuity, both of which limit a parent’s ability to spend the settlement money in a manner not benefiting the child. A blocked account is a bank account that only the court can control. The annuity pays out to the injured child when he or she reaches the age of majority. When the settlement involves an annuity, it is referred to as a structured settlement.
Any money damages paid to the parents for their pain and suffering or economic losses is not controlled by the court – it is for the parents. If you have settled a lawsuit, consult your attorney to make sure what money you can spend and what money belongs in an account reserved for the child.