Experiencing an injury while giving birth, or an injury sustained to your child or children, is a traumatic thing to experience for a variety of reasons. It may not be the first thing on your mind, but if there are people who are culpable in the injury, it may do you well to pursue damages for the mistakes they have made in the process. The major question of that part, however, is to ask what you can even get in damages for these kinds of injuries.
Types of damages you can seek in a birth injury case
The first thing you need to do is calculating the damages overall, but that also entails that you figure out what damages even apply to this case. The most obvious and common types of expenses that will be covered in such a birth injury case are medical costs; basically, costs that are incurred in order for you and/or your child or children to recover from the birth injuries. One of the first things you are going to need to consider are the medical costs associated with the injury, particularly recuperation and any medical costs that you find yourself being responsible for paying. Sometimes the would-be defendant may be in agreement to pay this cost, but will either not pay as much for this damage and/or will refuse to pay anything more than the medical costs associated with the birth. This is one kind of cost that is covered as part of your economic losses, basically the costs associated with recovery from the birth injury. The economic losses can also include a number of other things. For example, if you are put out of work for a period of time as a result of an injury your child sustained and the need to take extra care, you can sue to have your wages covered. There is also the risk that the injury which your child sustained is one that they are stick with for much of if not the entirety of their life. For instance, if your child experiences mental defects as a result of a birth injury, the targets of a birth injury lawsuit may be on the hook for the cost of special education and other costs meant to help give your child a leg up. Your child may also need to receive physical assistance if they are physically damaged in such a way that gave them a long-term or otherwise permanent disability.
Non-economic damages also apply in the case of a birth injury case. Basically, the kind of thing that is not as easy to prove, namely pain and suffering, lowered enjoyment of life, and emotional and/or mental harm. This can be a little hard to measure as it is a subjective quantity, and subjective as to whether the pain and suffering even exists, and it is likely that if it gets past the settlement phase, the defendant is going to make the argument that such pain and suffering is not present or, if it is, the pain and suffering is not as significant as you claimed it to be. Depending on the quality of your argument, you may get a lot more or a lot less than you ultimately want. Punitive damages may be sought if it is determined that the injuries that you or your child suffered during their birth can be demonstrated to have occurred as a result of the responsible party’s negligence. Essentially, punitive damages exist to communicate to the defendant as well as anyone else in their position that the behavior and/or actions they exhibited is not acceptable, and to hopefully serve as a deterrence to people who may do similar behavior in the future. If negligence is shown and no punitive damages are applied, this may suggest to people that it is not that big of a deal.
It is important to also factor in whether there may exist a cap, depending on which state you live in, for the maximum payout you can receive for a birth injury case. Some states, such as Georgia, used to have a cap or they never had a cap in the first place. In Georgia’s case, it was found unconstitutional in 2010 to have any such cap. The potential maximum is going to vary even in the same state based on different factors. Be sure to check your state’s laws on birth injury and the relevant compensation cap. For this exercise, let’s operate on the assumption that every type of charge applies for the incident. With that being the case, one of the variables that play a factor into who you will be targeting and for how much. For instance, the original cap for Georgia limited how much you can seek in damages based on whether you were filing a charge against a health care provider, a medical facility, multiple medical facilities, and/or multiple and a combination of all of the above.