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Birth Injury Malpractice Compensation


Unfortunately, the only thing that a birth injury civil lawsuit can do is pay money to the victim in partial compensation of his or her injuries and losses.  There is no way to undue the harm, and there is truly no amount of money that would fully compensate and injured person for the amount of harm.  What child would willingly trade a chance at a normal life in exchange for one besieged by physical and/or mental disabilities, with one million, five million, ten million or even twenty million dollars as recompense?  What mother would ever wish such a life on her child?

How Much Is My Child’s Birth Injury Lawsuit Worth?

The calculation of a birth injury lawsuit’s value is dependent on many things.  No lawyer can instantly tell you the value of your case, but we can explain how that value will be calculated by a jury.  As the investigation proceeds, we will hire a life care planner and an economist who will tell us how much money will be required to pay for your child’s needs.  Though our previous settlements and verdicts are not an indication of the value of your case, they can give you an idea of the cost to care for children with disabilities.

A jury is instructed, if they find that the doctor breached the standard of care and that the breach caused injury, to determine how much money will compensate the child and parents for the injury.

The formula that a jury uses is simple, and can be essentially stated as:  Past medical expenses + Future medical expenses + Noneconomic damages = Verdict.

Past medical expenses are the easiest to calculate.  By showing the medical and other bills related to the child’s care from birth to the date of the trial, we can give the jury an exact figure.  Future medical expenses are slightly more difficult—the baby’s doctors and other experts will tell the jury, based on their experience, education and expertise, what medical treatments and care will be required through the child’s expected life.  The current costs of those services and products will be provided for the jury’s consideration.

The noneconomic damages are the most difficult to calculate.  The items included in noneconomic damages vary by state, but it generally includes pain, suffering, mental anguish, disfigurement, humiliation and other emotional-type injuries.  Several states limit the amount that a child or parent can receive in compensation for noneconomic injuries.  In deciding what number represents “fair compensation,” a jury will have to use their collective experience.  Because of the nature of birth injuries, this figure is often higher than any of the other numbers.

Life Care Plans

Most parents expect and hope to outlive their children.  Any parent who has a child with severe developmental disabilities, including cerebral palsy, however, is fearful of how the child will cope after they are gone.  Most children grow up to be independent, but a child with severe disabilities may always be dependent on others.

life care plan is used in a birth injury lawsuit to outline the medical procedures, medicine, therapy, equipment and other services that a child will need through infancy, adolescence and adulthood.  Many children with severe disabilities have normal lifespans, particularly if they receive the proper care and treatment.  A life care plan, therefore, will take into consideration what happens when a child’s primary caregivers—usually the parents—becomes too infirm or is otherwise incapable of caring for the child.  Some options in these life care plans may include continuous in-home nursing care, a dignified option that parents may choose for their child after a successful birth injury malpractice lawsuit.

The lifetime cost to care for a child with birth injuries is staggering.  Depending on the full scope of the injuries, it is not uncommon to see life care plans with a funding cost of five to forty million dollars.  Defendants often argue that services included in these plans are unnecessary, but those arguments usually assume that only the most basic needs of a child with disabilities should be met.  Having litigated birth injury malpractice cases for many years, we know that better treatment and services have a positive effect on children.  Their futures should not be short-changed, and they should have the opportunity to grow and develop beyond the constraints of their physical disabilities.

Managing Money From A Medical Malpractice Lawsuit:  Special Needs Trusts

In a birth injury settlement or verdict, some of the money is for the parents (mostly for payment of past and future medical expenses), and some is for the child (typically for future medical expenses after age 18, and for pain and suffering damages).  This money, especially money intended for future care, must be carefully managed so that it lasts for the child’s life.

Our lawyers work with the family and experts to help them decide how to best protect the child.  Often, this involves setting up a special needs trust, which is a mechanism to protect the money from mismanagement, and to make sure it is properly and conservatively invested to grow for the child’s benefit.  These special needs trusts can also sometimes maintain the child’s eligibility for important governmental benefits.

Contact Us

Children injured at or near birth often have serious and disabling injuries that they will never fully overcome in their lifetimes.  However, they should be given the opportunity to reach their maximum potential, and it is therefore important that they be provided with the funds to reach that potential.  If you want to understand the value of your child’s claim, contact our medical malpractice attorneys at (440) 252-4399 and we will begin investigating your case immediately.

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