A birth injury is trauma that a baby endures before, during or shortly after childbirth. Birthing injuries range in severity and can improve over time or result in lifelong disabilities. If a birthing injury was due to a medical professional’s negligence, a medical malpractice lawsuit could be filed to recover financial damages for current and future medical expenses. The purpose of a birth injury settlement is to provide the injured child’s family with the financial support to take proper care of their child long-term.
How Do You Prove a Birth Injury?
Some birth injuries are apparent right away and others take time to show signs and symptoms of more serious trauma. In Pennsylvania, the statute of limitations is typically two years from when the injury occurred to file a medical malpractice claim. However, since birth injuries can appear dormant until the child grows a few years, there is an exception of seven years to file a claim from when the injury occurred. This exception is put into place because if the child endured brain trauma during birth but only started showing signs of delayed development until they reached an older age, the family should still be able to hold the negligent party accountable.
To create a successful medical malpractice case, you must prove that a doctor-patient relationship existed, your healthcare professional acted negligently, and that negligence resulted in injury to your child. A doctor-patient relationship exists if a doctor agreed to treat you. If the doctor agreed to facilitate your childbirth, that doctor owes you competent medical care. Medical professionals must uphold a medical standard of care. Essentially, the medical standard of care is providing the proper care that another skilled doctor would in the situation. If the doctor breaches this standard of care and your infant is injured because of their negligence, you could sue for medical malpractice.
How Are Birth Injury Settlements Calculated?
Often times, the hospital and doctor’s lawyers will want to settle the lawsuit out of court to save money and time. However, the settlement amount awarded to the victim’s parents will often be smaller than if the claim was taken to court. Financial settlements can help cover the child’s medical expenses, loss of income from parents, loss of quality of life of the child, lifestyle changes to support child’s disability and legal fees. A settlement is reached when both parties decide on a fair amount. There will also almost always be a non-disclosure agreement involved in the settlement so the news of a birth injury does not go public.
The calculation of a birth injury settlement varies with each case but always factors in two things: the median verdict amount and the chance of success at trial. For example, if the average median verdict for your birth injury is $50 million and there is a 50% chance of winning the case, the settlement value would be just under $25 million. The amount is just a little under $25 million because victims often discount the amount a little bit because they do not want to risk obtaining the verdict amount with only one claim in court. The average settlement for a birth injury is over $1.3 million. Pennsylvania has no cap on the amount that can be awarded to the birth injury victim’s family.
Collateral Source Rule – In trial, the jury will not be aware of any medical expenses that could be paid by the victim’s insurance. The point of the collateral source rule is to ensure the victim’s family is receiving fair compensation regardless of what their insurance might possibly pay for. In most instances, the victim is able to recover twice for their future medical expenses. They can recover finances from the insurance company and from the defendant.
Life Care Plan – A plan of medical recommendations by doctors and medical specialists in order to plan for future finances required. This plan will account for the cumulation of bills including medications, doctor’s visits, lost wages, housing, replacement services, counseling, transportation and any other expenses that may be required for your child’s long-term care.
When determining liability, parents can either hold the doctor or the hospital responsible for damages depending on the employee status of the doctor. If the doctor is an independent contractor, then the family could hold the doctor directly responsible for their negligence because they are not properly affiliated with the hospital as an employee. If the medical professional is an employee of the hospital, the hospital itself can be held responsible because they are responsible for the actions of their employees.
Birth injury settlements can assist families in recovering financial compensation to create an environment suitable for their child’s injury whether its short term or life-long.