It can be disconcerting for parents to listen to evidence about how long their child will live during trial. Parents will understandably be sensitive to that testimony—they have often been taking care of a tragically injured child for years (if not decades) until the case is brought to trial. It is crucial testimony because, if the jury believes that the health care provider acted inappropriately, the jury must decide on what damages are appropriate.
What Are Damages?
Damages is a legal term that means money. That money can be for many different things. In a personal injury lawsuit, like a medical malpractice birth injury, there are often two types of damages—economic damages and non-economic damages.
Economic damages are, simply, anything that can be added up with a calculator. That may be a bit simplistic, because things like lost wages and costs of future care can be the subject of different assumptions. But, non-economic damages typically include:
- Past and future medical care and medicine: injuries like cerebral palsy often require extraordinary levels of medical care. It may require surgery, physical therapy, occupational therapy, speech therapy, and even around-the-clock nursing care. Anything that is reasonably related to the injury, whether it was in the past or expected in the future, is compensable.
- Past and future lost wages: Many children begin working around age 16. From there, the average person will go on to have a lifetime of wages. It is of course impossible to know what any particular child will or would have gone forward and done with her life. However, economists look at date and can deduce averages. They might examine whether the child’s parents are blue collar or college educated; or what the economic opportunities in the child’s hometown are, to name a few. Using that data, they can extrapolate what an average child in similar circumstances would have made.
- Other: There is a wide range of other damages that can be required. Children may require modified handicap-accessible vans or houses. Adaptive technology, like computers or specialized wheelchairs may be useful for the child to achieve the highest possible level of independence.
Non-economic damages are those damages that cannot be calculated to the penny. A jury must decide, using their general life experiences, what these items are “worth.” Though each state has a specific list of what’s recoverable, in general these damages are for intangibles, like:
- Disfigurement and scars: physical disfigurements and scars, anything viewable by others, is compensable.
- Mental pain and suffering: the mental and emotional anguish that is caused by the injury is also compensable.
- Physical pain and suffering: any pain caused by the injury or treatment of the injury (for instance, recovery from surgeries).
- Inconvenience: the inability to be independent, and the necessity for repeated doctors’ appointment, for example.
Why the Future Matters
The future is not written—in the end, a jury must simply make an educated guess, based on the evidence available, about how long they think the child will live. They will have the advantage of physician experts who will explain, using their own experience and national statistics, how long children with specific medical problems typically survive. Of course, they will also inform the jury that the life expectancy is directly related to the quality of treatment—the better (and sometimes more expensive) the medical treatment, the longer the child is likely to survive.
Having decided how long the child will live, a jury must then decide the value associate with each of the economic and non-economic damages. A person who lives to age 80 will have a different level of non-economic damages, like physical pain and suffering, than someone who lives with the same condition but dies at 40. Likewise, medical expenses and lost wages will be higher for someone with a longer lifespan.
For more information on the value of your child’s medical malpractice lawsuit, call our birth injury attorneys at (440) 252-4399 or contact them online for a free consultation.