Financial compensation for birth injuries can be crucial to ensuring a child has access to the care and support they may need going forward. Whether the effects of birth injuries are short-term or likely to involve permanent damage can make an impact on the legal strategy for pursuing claims, as can the type of injury and the medical evidence available. Each situation is unique, so while a broad overview of the factors involved can make a useful start, families may also find it helpful to discuss the particulars of a child’s situation with a medical injury lawyer in their area who has experience in similar cases. Call 505-218-9949 in Albuquerque to schedule a consultation with a member of the understanding and supportive legal team at Erin Marshall Law.
What Is Financial Compensation for Birth Injuries?
Some hardships in life are nobody’s fault – the result of simple “bad luck.” Others are, of course, caused by our own poor decisions. Many are a combination. Some, however, are the direct result of someone else’s actions, or their failures to act as they reasonably should.
Basis of Personal Injury Claims
When one person, by action or omission, causes preventable harm to another, the person who has suffered as a result of that fault, or “tort,” may under certain circumstances be able to seek compensation from the responsible party under civil torts law, in what is typically known as a personal injury action. Birth injury claims fall into this category; even those that are settled out of court are generally framed by the basic premise of personal injury cases. In simplified terms, this premise is that those who cause preventable harm to others by their inappropriate conduct may be held legally responsible for redressing those harms.
Redress or “Remedy” for Damages
Although healthcare providers cannot “take back” whatever they did or failed to do that led to birth injuries, personal injury law provides a legal framework by which they can compensate children and families for some of the hardships that arose from their conduct. Since it is not always possible to restore a person’s health or property, usually compensation in personal injury cases comes in the form of monetary awards known as damages, paid to the affected parties so that they can replace lost property (common in accident cases), pay for medical care (very common not only with birth injuries, but with medical malpractice cases generally), and otherwise recover from the issues they have suffered as a result of the original “tort” in the case.
While the essence of the concept behind personal injury law is relatively simple, however, there are a number of reasons why the process of determining appropriate financial compensation for birth injuries can be a complicated undertaking. At Erin Marshall Law, one of our goals is to demystify this process for families and help them evaluate their options for seeking legal remedy for birth injuries.
Complications in Computing Financial Compensation for Birth Injuries
In theory, the “damages” awarded in a personal injury lawsuit are meant to restore the injured party as nearly as possible to the condition they enjoyed before they were negatively affected by someone else’s wrongdoing – or, in certain circumstances, to the position they could reasonably have expected to be in, had the wrong never occurred. This fine distinction can sometimes result in a significant difference in the calculation of damages sought by the victim of, for example, an accident: A pedestrian who is struck by a careless driver may miss weeks or even months of income if the injuries sustained in the collision require an extended medical recovery.
An adult victim in a personal injury case is likely to seek economic damages not to restore his or her checking balance to its exact dollar amount just prior to experiencing harm due to someone else’s actions, but rather to match a total reached by combining the actual expenses (in value of personal property repairs or replacements, medical bills, and the like) with the projected earnings the individual could have expected to earn over the period of missed work. This latter portion of the calculation may be based on established average weekly or monthly earnings, hours scheduled for the period of work missed, or some combination of the above, depending on the circumstances. For a variety of reasons, this basic framework can be difficult to apply to cases involving birth injuries.
Understanding MMI Basics
An adult plaintiff who has suffered bodily injuries will likely seek compensation for the costs of medical care needed as a result of those injuries. When these bodily injuries are serious or slow to resolve, often a personal injury lawyer will advise the individual to wait for Maximum Medical Improvement (MMI) before finalizing the computation of damages in a request for compensation. MMI is designation used in healthcare settings and certain types of law that essentially means a patient’s recovery has likely reached its limit: while treatment may be needed to prevent the individual’s condition from regressing, no amount of treatment is expected to bring about additional improvements in symptoms or functionality.
Once MMI has been reached, the patient’s claim for financial compensation can then take into consideration the projected costs of any ongoing medical care related to the original incident and the limiting effects of the individual’s condition on his or her future earning potential, in addition to the dollar value of losses already sustained. However, conducting the same kind of assessment in cases arising from birth injuries can prove difficult.
Birth Injuries May Not Immediately Be Obvious
One of the more vexing factors that can tend to complicate the computation of financial compensation for birth injuries is that the injuries themselves may not always be immediately obvious. Some birth injuries, such as cephalohematoma, make themselves known by their classic presentation of highly visible signs, as described in educational resources from the National Library of Medicine (NLM). Others, such as brachial nerve damage, may only become evident over a few weeks to months. Although most infants who suffer from brachial nerve damage do recover, according to John Hopkins Medicine, the fact that babies in general have limited motor control immediately after birth can sometimes make it difficult to recognize the signs of injuries to the brachial nerves, which control the arm and hand – potentially delaying diagnosis and treatment.
In the time between the initial birth injury and the determination that something is wrong, numerous events in an infant’s development can occur that can make it difficult even for a child’s own parents to ascertain with clarity how many (and which) of their child’s symptoms may be directly attributed to injuries received at birth, and to separate these from symptoms which may have been caused or compounded by the various other medical events and life circumstances the child has experienced in the intervening period. In addition to complicating attempts to identify and address the root cause (or causes) of a child’s symptoms, this time delay can also sometimes give the insurers who are typically responsible for paying out claims for financial compensation in medical injury cases leverage to contest the causal relationship between the child’s current condition and the injuries he or she sustained at birth.
Extent of Birth Injuries Can Be Difficult To Assess
Whether the birth injury itself is immediately apparent or not, it can often take some time for the extent of the injury’s impacts to become clear. This problem tends to be more common with some birth injuries than with others. Fractures of the clavicle, fairly common in breach births and those involving fetal macrosomia (a medical term used when an infant is very large at delivery), can be assessed with relative ease upon a physical examination. The child’s progress in healing can be measured by X-ray and symmetry of growth (uneven or “asymmetrical” growth can often be one of the complications of early-life skeletal fractures).
For some other birth injuries, however, such as hypoxic-ischemic encephalopathy, which the Cleveland Clinic explains can be caused by circumstances during delivery that cause a baby’s brain to be temporarily deprived of essential blood and oxygen, some symptoms may be obvious right away, yet it may take much longer before the full extent of impairment, and of the limitations imposed on the child’s development by their injury, become clear. Reaching any approximation of the MMI assessment that would be applied in a typical medical injury case involving an adult can therefore present frustrating practical difficulties for families, even as they struggle with the ongoing challenges posed by their child’s condition.
There Is No “Baseline”
Not only MMMI, but procedures for establishing causality – necessary to securing maximum financial compensation – can be complicated by the fact that for many birth injuries, in practical terms there is no “before”: There is often no clear baseline from which to know what the child’s physical or mental development might have looked like, had the birth injury never occurred. Here again there may be substantial differences depending on the birth injuries sustained, but generally speaking if the impacts of a birth injury are expected to be lifelong, then the need to compute probable future expenses based on complications that may take years to fully manifest can be extremely challenging. If the effects are expected to not only be permanent, but limiting in terms of the child’s career choices and lifetime earning potential, then a further problem often arises because nobody has yet developed a fully accurate calculation for the lifetime earning potential of a baby in the womb.
Even the most thoughtful estimates, taking into account factors like parental income, geographic location, and (sadly but in many cases all too accurately) social conditions such as an infant’s race and sex, are most effective at the prediction of broad, population-level trends, and they tend to be problematic when applied to any individual infant. Above and beyond all of these complications, no one knows who a newborn will grow up to be. An adult who calculates future loss of income on the basis of a 15-year career in nonprofit administration is likely to come up with a radically different claim for financial compensation compared to another individual who shares many of the same skills, talents, and demographic features, but works as the regional manager of a large retail chain. Newborns, for obvious reasons, do not provide a basis for this type of computation, and it can be very difficult to come up with a reasonable and realistic estimate of what the child, absent birth injury, might have earned over the course of a lifetime.
Seek Experienced Perspective
Financial compensation for birth injuries is often achievable, but the process of accurately estimating an amount that will realistically cover the costs of damages caused by medical missteps during labor and delivery can be complicated. In many cases, financial compensation for birth injuries can be significantly delayed due not only to protracted negotiations with insurance companies, but also the unique factors that come into play when dealing with injuries sustained in the earliest stages of a child’s development. The experienced New Mexico medical injury team at Erin Marshall Law is here to help families evaluate their legal options and navigate the birth injury claims process. Call our office at 505-218-9949 today to set up a consultation to discuss the specifics of your family’s situation.
