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Compensation Available in Birth Injury Cases

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January 21, 2023

Giving birth is a momentous occasion for any parent, but when something goes wrong, it can be devastating. When a child suffers a birth injury, there are significant practical and emotional challenges. If that injury is a result of the negligence of your doctor, nurse, hospital, or other healthcare provider, you may be entitled to financial compensation for your losses, past, and future, as well as your physical and emotional suffering. An experienced birth injury lawyer, like the birth injury attorneys at Morris James, can help you understand your rights and options. Contact us today to find out what you are entitled to, and how we can help you get it.

What is a birth injury?

A birth injury is any physical harm to a baby related to childbirth. It can include injuries caused during pregnancy, as well as injuries suffered during labor and delivery, and in the postnatal period. Birth injuries are unfortunately common in the United States, and are frequently caused by the negligence of the mother or baby’s healthcare team. Common birth injuries include cerebral palsy, brachial plexus injuries, fractures of the clavicle or skull, hematomas, and other types of brain injuries such as periventricular leukomalacia. You can find out more about common birth injuries and how they are caused in our article What is a Birth Injury? 

What expenses do you have after a birth injury?

When a baby suffers a birth injury, the consequences can be severe. Many birth injuries cause permanent damage such as neurological issues or physical disfigurement, which often result in additional treatments or procedures, and lifelong care needs. Some of the costs that our birth injury clients have incurred are related to the need for:

Physical therapy

Speech therapy

Occupational therapy

Special Education 

Behavioral therapy 

Surgeries

Pain medication

Extended hospital stays

Specialist physician fees

Testing and lab fees

X-ray and imaging fees

Counseling

Home and vehicle modifications

Medical equipment costs

In-home caregivers 

Caring for a child who has been injured at birth has major practical consequences for parents and families. While dealing with their own emotional, and sometimes physical, trauma, parents often have to miss work or give up their career entirely to care for their child. The financial burden of lost wages and benefits while facing mounting medical bills and other expenses cannot be underestimated.

What compensation can you get for a birth injury?

When a baby suffers a birth injury due to the negligence of a healthcare provider, the parent or guardian can take legal action against the provider (or multiple providers, as is often the case) to get compensation for the child’s injury. We talk more about how birth injuries are caused, and how a healthcare provider’s negligence can cause a birth injury in our article Why Was My Baby Injured At Birth?

The purpose of compensation is primarily to compensate an injured victim for all of the financial, physical, and emotional harm that they have suffered as a result of the injury. Sometimes a compensation award will include additional damages, known as punitive damages, that are intended to punish the at-fault party for behavior that is particularly egregious, but here we focus only on compensatory damages.

1. Past economic damages

The law divides damages into economic damages and non-economic damages. Economic damages are essentially financial expenses and losses, both past and future. Economic damages would include medical bills, pharmacy expenses, carer costs, home or vehicle modifications, and lost wages and benefits. You will need to provide proof of your past economic damages such as receipts, explanation of benefit statements, payslips, or other documents. Past expenses are the most straightforward to prove and calculate because there typically are documents available to show your past expenses. 

2. Future economic damages

It is more difficult to calculate and prove, future economic damages, which is why it is very important to hire an experienced birth injury attorney, like the birth injury attorneys at Morris James. Future economic damages include your future expenses and your future loss of earnings. To calculate future economic damages, you must consider BOTH future expenses and losses AND how much they will cost in the future. For example, if your injured child will need 24-hour care for the rest of his or her life, you will need to prove (1) that they need this care, (2) their life expectancy, and (3) the cost of this care (in future values) for each year of your child’s expected life. This is a very technical process which requires knowledge and skill. Victims who are negotiating with hospitals or their insurers without the help of a lawyer often do not realize all of the costs that they will have or how to calculate their future value. Ultimately, many end up accepting insufficient settlement offers from the insurance company, leaving them without the resources that they need and deserve to care for their child into the future. Experienced medical malpractice attorneys, like the birth injury attorneys at Morris James, are accustomed to calculating these future costs and ensuring that birth injury victims receive the compensation they deserve. 

3. Non-economic damages: Pain and suffering

Non-economic damages are also difficult to quantify. This is the dollar amount intended to compensate a victim for past and future pain and suffering. It is not determined by any receipt, bill, or statement, and ultimately is decided by a jury based on what they hear and see at trial, unless the parties come to a pretrial settlement. It includes both physical discomfort or pain, and mental distress. To be clear, it does not include things such as your pain medications or therapy bills, both of which are examples of economic damage. 

The amount awarded for pain and suffering can vary greatly depending on the severity of the baby’s injuries, and the ability of your lawyer to understand your individual circumstances and present them to a jury. Although most cases are settled before they ever get to court, the parties will consider what a jury may award when negotiating a settlement. For that reason, unrepresented plaintiffs, or plaintiffs represented by inexperienced lawyers, tend to receive lower compensation and settlement amounts because they do not have the knowledge or experience to understand how much they might be entitled to for their pain and suffering.

4. No guaranteed compensation

When you speak to an attorney about bringing a medical malpractice case, you will of course want to ask “Is it worth it? What compensation will I get after all of this?” Unfortunately, no attorney can, or should, ever guarantee that you will get compensation after a birth injury, or what a birth injury claim is worth. In any legal action, there is always the possibility that the other side will win. However, experienced birth injury attorneys, like the birth injury attorneys at Morris James, can look at your individual circumstances and advise you on the strength of your potential case. Every case and every victim is different, but an experienced attorney should be able to guide you and help you to make informed decisions. Also, many medical malpractice attorneys will not charge you for their services unless they win (called a contingency fee arrangement.) Talk to your attorneys about their fee policy and about the strengths of your individual case. 

Consult a birth injury attorney

The injuries that result from medical malpractice during childbirth can have lifelong consequences for your child and for your family. To ensure that you get the answers, the support, and the compensation that you need, do not try to go it alone or hire an attorney without prior experience handling complex birth injury cases. Speak to an attorney who will fight for you and for your child. Our birth injury attorneys have extensive experience with birth injury claims, both in settlement negotiations and at trial, and will advocate for you and your child so that you receive justice and compensation from negligent healthcare providers for your birth injury.

At Morris James, our attorneys have been standing up for victims since we opened our doors in 1932. If you have other questions about a birth injury, you may find answers in our Birth Injury FAQs, or you can contact us online or call us at 302.655.2599 to learn more.

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