Chicago Birth Injury Lawyer Blog

Recently, RTE, Ireland’s national television and radio broadcasting agency, published a harrowing story involving a mother whose fight for justice for her brain damaged daughter finally came to fruition. The High Court of Ireland ruled that the daughter should be awarded 1.3 million euros, as she sued the Health Service Executive through her mother. The Health Service Executive is responsible for the oversight of all provided health care and social services to the people of Ireland.

Her fight began the day of her birth over four years ago. The daughter’s mother claimed that hospital staff used large amounts of a specific drug intended to artificially induce labor. She also claimed the methods used to deliver her baby were subpar, and that her aftercare while at the hospital was entirely inadequate. Her daughter now suffers from cerebral palsy, and is severely brain damaged, allegedly due to the events at the hospital during her birth.

More Money Overseas
This wasn’t the only birth injury case to see the spotlight in Ireland this month, though. Less than a week earlier, a boy who also suffers from cerebral palsy and severe brain damage due to poor birthing methods and aftercare was awarded a settlement of 300,000 euros by the High Court. Once again, this boy sued the Health Service Executive of Ireland through his mother after waiting over seven years after his birth.

Problems With the System
This sort of event doesn’t need to happen to you here. While a traumatic birth injury can occur in any location, seeking justice for the situation doesn’t have to be a delayed action.

In both of these stories, the plaintiffs saw their cases delayed for years in the hopes that the Irish government would install promised legislation regarding lifetime care for certain injuries. And in this country of nationalized healthcare, the people are largely at the mercy of the national governing body, the Health Service Executive, when it comes to legal issues regarding medical treatment. Advocates are readily available to defend birth injury victims and their parents, but must wade through developing legal systems that are highly in favor of the national bodies.

Things Are Different Here
Legal matters regarding medical treatment are dealt with differently in Illinois. Most importantly, birth injury victims are not required to attempt to sue a nationally governing body that oversees healthcare for all. This de-monopolized system allows victims to hold accountable individual institutions and practitioners.

On this note, the United States maintains a system in which strong advocates must face off against their peers, and not against a stacked system that is backed by their own government.

What This Means For You
If you, your relative, or someone you know is the victim of poor care or birthing methods resulting in a birth injury, you don’t have to worry. While the international community is still struggling to find a fair and concise way to provide birth injury victims with adequate assistance, the legal community in Illinois is setup to ensure justice is served. And with an aggressive and adept birth injury attorney in Chicago, you can fight together to receive a settlement to help you live the life you deserve.

See Other Blog Posts:

Long-Term Study Results Show Benefit of Surgery for Patients with Cerebral Palsy

Ensuring a Family Actually Receives Birth Injury Settlement Payments

There is still no “cure” for the many forms of cerebral palsy. While stem cell therapies offer hope that one day damaged parts of the body which create cerebral palsy can actually be re-grown properly, scientists are still in the early stages of understanding this option. In fact, some scientists are warning against buying into some scams where the unscrupulous convince families to pay tens of thousands of dollars for stem cell “therapies” that may serve no purpose. There is no still no guaranteed right or wrong answers for families when deciding what treatment options to consider. But at the very least it is important to receive advice from trusted, experienced medical professionals.

Also, recognition that some options, like stem cell therapies, are still in their early stages, does not mean that families are without recourse to help their loved one who has cerebral palsy recover. In fact, research is now coming in regarding the long-term benefit of certain surgical methods which offer hope for all those battling CP.

Surgical Benefits Hold Up
As reported recently in the Gazette, doctor’s reported the result of a decades-long tracking study into the effectiveness of a surgical procedure for children with cerebral palsy known as selective dorsal rhizotomy. The actual surgery is not new, having been used for many years. However, even though it has a relatively long history, doctors were not sure of the long-term benefits of the procedure. When performed on toddlers, would the positive outcomes last ten years later? Twenty years later? Did the surgery offer temporary aid that would fade over time or was it permanent?

The report explains how the surgery is used to help with the most common type of CP-- spastic cerebral palsy. Those with spastic CP usually have significant mobility problems, many are never able to walk and even moving other limbs can be a challenge. To correct this, the surgery used electrical impulse to identify affected nerve. This allows surgeons to make precise choices about what nerves to cut out in surgery. Combined with continual therapy after the surgery, many patient see drastic improvement in mobility.

This week researchers revealed the results of a project that monitored some patients for as long as fifteen years after their operation. The results were impressive, as the vast majority of children tracked in this study (102 overall) saw permanent improvement in their mobility, making it far more likely that they were able to improve their quality of life with minimal adaptations necessary.

As one doctor involved explained of the surgery, ““It’s not a life-or-death situation, we’re trying to improve their quality of life,” Another commented that the goal “seems to be occurring in a group of those patients.”

The findings of his long-term study are obviously encouraging news for the many families whose children have already had the surgery or are considering it. This is also a testament to the incredible work of so many medical researchers working on these issues. For legal help on issues related to cerebral palsy developed at birth and securing access to resources to help in treatment, please consider contact our attorneys today.

See Other Posts:

Concerns About Stem Cell Treatments for Cerebral Palsy

Doctor Recognized for Work with Cerebral Palsy

In financial terms, Illinois birth injuries can be the most damaging type of preventable harm caused by negligence. The cost of medical bills to deal with the injury are usually enormous, and that is not even including the staggering sums to provide extra equipment, daily care, therapy and more over the course of a lifetime. Obviously the costs are one of many reasons why it is important for those affected by negligence leading to injury at birth to see out an attorney.

In many cases the legal professional will be able to ensure that appropriate redress is secured--either via a settlements (the most common common way) or after a trial. Sadly, agreeing to a settlement or winning at trial is often not the end of the battle. That is because there is a difference between earning the redress on paper and actually ensuring the funds reach a bank account to be used in recovery. Hundreds of hours, mountains of paperwork, and stress can sometimes be required to secure the damages.

No More Delay
One problem is that defendants often use many different tactics to stall making the payments. This is very pronounced when a case goes to trial, as different appeals processes are used to drag things out. Even after a settlement a family may find themselves playing an extended waiting game before receiving the recovery that they agreed with the opposing side.

To help improve the system, this session lawmakers in the Illinois General Assembly introduce a bill (known as SB 1912) which would require prompt settlement payments. More specifically, the law requires a settlement release to be created 14 days after an agreement between the parties. The defendant would then have 21 days after the release to actually make the payments.

Some chronic defendants and their allies argued that the bill would discourage settlements. However, in a recent editorial, the ITLA President rebutted those claims. He explained how many families, like those whose youngsters who suffer permanent injury during negligence at birth, face near financial ruin as a result of delayed settlement payments. While it is easy to speak in hyperbole and suggest that those who receive a lawsuit settlement have ‘won the lottery,” the truth is that no one would switch places with a families whose child is permanently harmed as a result of these errors.

Fortunately, most lawmakers in Springfield did not buy the argument. The measure was officially introduced in February. It passed the Senate in mid-May. The House took up the measure a week later and passed it in the middle of last week. The Senate concurred with a few changes that occurred in the House shortly before the end of the year’s session on Friday. That means that the bill only needs Governor Pat Quinn’s signature to become law.

The attorneys at our firm applaud this common sense step and urge the Governor to sign the bill. It will be a helpful step forward in ensuring fair and prompt treatment for all those affected by preventable birth injuries and many other forms of negligence.

See Other Blog Posts:

Toddler Dies Following Injury During Birth with Midwife

Concerns About Stem Cell Treatment for Cerebral Palsy

My Fox published a story earlier this month on a sad case of a young child who suffered a serious injury as a result of a traumatic birth. Many called it a miracle that the baby survived his first night out of the womb. However, he was plagued by the consequences of the injury throughout his short life, and he recently passed away at the age of three. It is an incredibly sad story that some are using to raise concerns about the safety of certain birthing methods and the potential need for clearer regulations for midwives.

Failure to Act Quickly
According to the report, the family involved made the decision to hire a midwife to help with a home birth. This is a decision that many families make, and successful home births with midwife aid is common throughout Illinois. But there was little successful about this particular birth. The mother began labor in mid-may of 2010. Eventually there were clear signs that something was amiss. Most notably, the mother began bleeding “profusely” -- an obvious indicator of serious problems.

Yet, instead of taking the abnormal bleeding as a sign that emergency medical help was needed, the midwife did not call an ambulance. It turns out that the mother suffered a placental abruption, which is a birth complication that refers to the placenta peeling away from the uterine wall. This can be a complete peeling away or a partial peeling away, however, in both situations there is risk of serious injury to the mother and baby.

That is what happened in this case. The story notes how the abruption, indicated by the severe bleeding, ultimately caused the newborn to suffer a traumatic brain injury. At first, the family did not know if the baby would survive, and the harm to the mother was also unclear. Amazingly the young boy and mother survived.

Of course, the TBI still caused significant problems, and throughout his life the boy was unable to do much of anything on his own, including walk, speak, or even crawl. Yet, as so many families with children who suffered similar injuries can attest, the boy soon became a centerpiece of the family’s life for his ability to “light up a room with his infectious smile and twinkling eyes.”

Sadly, the boy passed away recently at age three. In the aftermath of the tragic loss the family is hoping that their sadness will lead to changes to improve the safety of midwife births for others. Specifically, they are urging stricter requirements before one is allowed to aid in a birth related to education, training and insurance.

There remain a wide range of opinions of the appropriate balance for regulatory midwife policy. But the important thing for all Illinois families to remember is that if you are harmed by potential errors, delays, omissions, or outright harmful conduct by anyone (doctors, nurses, midwives, doulas) involved in your childbirth, you may have legal rights to recover for your injuries. The recovery can ensure your child has access to an extra support they need to aid in their development. An attorney can explain your options

See Other Blog Posts:

Concerns About Stem Cell Treatments for Cerebral Palsy

Doctor Recognized for Work with Children with Cerebral Palsy

We often explain how birth injury lawsuits are critical to ensuring those affected have access to as many resources as necessary for the rest of their lives to recover as much as possible from the injury. For example, when it comes to cerebral palsy, those who are able to purchase specialized equipment, have close nursing care (if necessary), and access of extensive rehabilitation services have far better outcomes than those that do not.

However, it is also important to reiterate that many birth injuries, including cerebral palsy, have no actual cure. Most advancement has to do with better dealing with the consequences or adapting to them. Actually curing the underlying injury is not possible.

For now.

Many hold out hope that in the years to come more advanced options will become available to reverse the injury. When discussing cures, most focus is on stem cells. The potential ability of the cells to rejuvenate areas of the body and spur re-growth of damaged cells ultimately may allow currently permanent injuries to be reversed. The potential is truly inspiring, and all medical professionals who are working diligently on these matters should be supported as much as possible.

Yet, we must not get ahead of ourselves. We are not there yet. As it now stands, stem cell research is still unable to do what many hope it might one day. But the push for breakthrough advances and extreme desire for a cure may lead are leading some families to go to extreme lengths in order to secure what they hope is revolutionary treatment. Many are calling for caution.

Caution Needed with Cerebral Palsy Treatment
For example, an ABC News story this week explored how many scientists are urging families not to pursue risky stem cell treatments to correct cerebral palsy. In most cases people are leaving the country to have the operations--though many treatments may still be available in the United States

At one Australian medical conference, a group of panelists explored the risk. One explained, “"A lot of these stem cell tourism companies don't even describe what type of cells they're giving, so first we don't even know if they're human cells... so, of course, it is a very risky procedure. There has been a couple of cases internationally of children actually dying from these treatments."

That is not to say that we are still a long ways off from identifying reliable stem cell treatments. The very same panelists discussed one breakthrough from South Korean researchers. That effort involved use of umbilical cord stem cells in ways that may repair brain cells. This ability to reverse the brain damage which causes cerebral palsy is encouraging.

The bottom line: Tread carefully when it comes to advanced medical treatments not yet widely available in the country. All medical decisions are personal, but those decisions should be based on informed opinion of the possible risks and benefits. No matter what the case, though, access to financial resources to secure appropriate treatment is key. When it comes to injuries caused by negligence, contact our Chicago cerebral palsy lawyers to see how we can help.

See Other Blog Posts:

Doctor Recognized for Work with Cerebral Palsy

Civil Lawsuits & Punitive Damages

Cerebral palsy is perhaps the most recognized birth injury. There are many different types of this harm that usually affects children during the birthing process itself. Most Illinois community members are affected by cerebral palsy at some point, perhaps with their own child developing it or with friends or family members whose child has cerebral palsy.

The widespread awareness of the condition comes with one benefit: a growing number of residents are working hard to ensure that children with cerebral palsy are accommodated whenever possible so that they do not miss out on any aspect of childhood or community living in general. Combined with advances in the design and manufacture of technologies and tools to help account for challenges, those with cerebral palsy have a good a chance as ever before to live full lives with minimal adaptations as a result of physical or cognitive impairments.

None of this is to say that the injury is sometimes not debilitating. But it is important to recognize the progress that has been made in recent decades to bring all community members into the fold, including those who suffer birth injuries like CP.

Similarly, it is critical to recognize those experts in the health and well-being of these patients who have done so much to advance the knowledge around the condition and expand access to quality treatments, rehabilitation tools, and other resources to ensure those with cerebral palsy are able to develop to their full capacity.

Cerebral Palsy Center
One of those unsung heroes is Dr. Jan Brunstrom-Hernandez who was recently profiled in a Fox News article for her career working on CP issues. The doctor founded the Cerebral Palsy Center in St. Louis fifteen years ago and has worked with adults and children with the condition for year.

Dr. Brunstrom-Hernandez has a particularly unique perspective when working with her patients. That is because the doctor herself has cerebral palsy.

As a young girl, the doctor was surrounded by medical professionals who helped in her own development. However years later, as a practicing physician, she was saddened to learn that little had changed for cerebral palsy patients, as children were receiving the same treatments that she did as a little girl decades before. She wanted to change that, and so she helped found the cerebral palsy clinic that is still going strong today.

Discussing her passion for the work, the doctor explains, “"I have gotten as much or more out of taking care of these patients as they have ever gotten from me. It changed my life. They saved my life. They taught me how to believe in myself. They taught me how to look at myself differently."

The world is a different place today for children with cerebral palsy than it was even a few decades ago. However, while more tools are available, they still come with a cost. That is why it is critical for families not to leave any stone unturned when it comes to procuring the resources necessary to pay for all the care needed. In some cases, when the injury was caused by negligence, then legal liability may be had. Please contact our Chicago cerebral palsy lawyers for guidance on your case.

See Other Blog Posts:

Unique Malpractice Case: Tubes Tied Without Consent After C-Section

Doctor Cleared of Liability in Birth Injury Lawsuit

The variety of medical malpractice cases is more extensive than most imagine. Considering the total number of births that occur each year, many somewhat unique cases of mistakes, confusion, and preventable harm will occur. That is not to say that there are not clear legal trends when it comes to types of malpractice that lead to lawsuits and accountability. For example, delayed C-sections and use of excessive force are likely the two types of professional negligence that most often lead to the filing of an actual birth injury lawsuit. That is probably because those injuries are the most common, can often be proven in court, and come with significant consequences for those affected requiring compensation

Unique Birthing Malpractice
While excessive force and oxygen deprivation resulting in the development of cerebral palsy are the birth injuries that often make-up newspaper headlines and blog posts--there are others.

For example, Lawyers.com published a post this week on a unique case where a woman is suing her doctor for tying her tubes (to prevent a future pregnancy) after having a C-section. The woman claims that she did not want her tubes tied and had no idea the doctor performed the operation while she was sedated. The case is a complex one, with claims of a signed consent form and raising issue of informed consent in the medical context.

According to reports, the woman was shocked to learn about the procedure when she went to her doctor to receive birth control pills. The doctor explained that she did not need them, because of the tubes-tying procedure a few months earlier.

The plaintiff alleges that the doctor mentioned that she did not need any more kids because she had enough already--a 22 year old with three children. Conversely, the defendant-doctor claims that a consent form was signed which clearly indicated the plaintiff’s understanding of the tubes-tying procedure and the implications.

Malpractice & Informed Consent
As the story has been framed thus far, it seems clear that the matter will center on the apparent consent form, whether it was signed and whether the patient actually knew what she was signing. The idea of informed consent can be a confusing one, because it is far different than malpractice claims alleging outright errors on the part of the medical professional.

On one hand, it is easy to assume that if the patient signed the form, that’s the end of the matter. However, courts have long explained that random formalities are not enough for a medical professional to perform procedures---the patient need to “actually” know what they are agreeing to and understand the implications. That may occur--even with a signed form--particularly if the patient was in the midst of a medical event at the time, rushed to sign many documents, and not made explicitly aware of what a particular document indicated. After all, we all sign so many things when in the hospital that it is very easy to overlook one page. It would be natural to be upset if such a paper allowed the performance of a surgery that one did not necessarily need or want.

See Other Posts:

Doctor Cleared of Liability in Birth Injury Lawsuit
Tubal Reversals, Ectopic Pregnancies, and Birth Injuries in Illinois

It is easy to develop the assumption that all birth injury cases result in a settlement or judgement for the plaintiff. But that is not true. News stories and blog posts are simply far more likely to discuss cases that result in liability as illustrative of the ways in which the legal system works and preventable injuries can affect the birthing process. But just because you hear more about the cases where plaintiffs are successful does not mean that doctors are almost always found liable.

In fact, the opposite may be true. When a case goes to trial, the burden is still on the plaintiff (injured child and family) to produce sufficient evidence to prove negligence. Sometimes that burden is hard to meet, and judges and juries routinely find for doctors. This basic concept is important to reiterate whenever faced with arguments from those seeking to change legal rules as a result of “runaway verdicts” or excessive lawsuits.”

For example, just this month the Press Herald reported on a case in which a birth injury lawsuit verdict went against the plaintiff. According to the report, the case was filed by a mother who essential claimed that excessive force was used during delivery. That force apparently led the child to suffer a brachial plexus injury--the nerve bundle near the shoulder that control’s ones’ arm, hand, and finger.

The case eventually went to a trial that lasted for six days. Shortly thereafter the jury returned a unanimous verdict for the defendant. They did not believe that the doctor acted negligently causing injury to the child. In fact, per the rules of the state where the trial took place, a medical malpractice “screening panel” had previously heard evidence in the case and issued a ruling. Their ruling was similar to jury’s --unanimous in favor of the doctor.

Experienced Birth Injury Lawyers
For one thing, the above case is a reminder of the reality that plaintiffs often lose these medical malpractice cases. In addition, it is also a way to reiterate one often overlooked fact: the skill of the advocate matters. That is not to say that the legal professionals in this case could have done anything more to change the outcome. Instead, it is just a reminder that not all legal advocates are the same.

Attorneys can take the same set of facts and pursue different strategies to best show that negligence occurred and liability should be found. Similarly, seasoned professionals are best able to understand the likelihood of success of any case given the circumstances of the injury and evidence available to prove malpractice. This plays into possible settlement negotiations before the trial.

For local residents this is a reminder that experience matters. There is a world of difference between having the aid of a legal team that has only worked on a few cases like yours or having an advocate on your side that has worked on birth injury cases for decades. The experienced attorney is simply better adept at understanding the possibility of recovery and using that to shape fair settlement negotiations or trial strategy.

For experienced help on your birth injury case in Chicago or elsewhere in Illinois please contact our attorneys today.

See Other Posts:

Researchers Fails to Explain Risks to Premature Babies

Tubal Reversals & Birth Injuries in Illinois

Tubal ligations, which have been linked to ectopic pregnancies, are among the preventative sterilization services which insurance companies are required to cover under the Affordable Care Act. Ectopic pregnancies occur when the embryo implants outside the womb, usually somewhere in the fallopian tube. If left untreated, an ectopic pregnancy can lead to a life threatening emergency, such as the one experienced in tan Illinois case where a woman from Wheeling died after her fallopian tube ruptured subsequent to her doctor’s failure to notify her that the results of her ultrasound test indicated a strong possibility of an ectopic pregnancy.

Ectopic Pregnancies Are Often Misdiagnosed
Ectopic pregnancies sometimes require surgical intervention, but in other instances can be treated with methotrexate, a chemotherapy technique that removes the fetus from the fallopian tube in an attempt to avoid life-threatening complications to the ectopically pregnant woman. However, according to a recent article published by ABC News, roughly 40% of pregnancies diagnosed as ectopic are later revealed to be normal pregnancies. For example, according to the article, one woman who was administered methotrexate after being diagnosed with an ectopic pregnancy gave birth to a daughter who had no rectum, vagina or uterus and also had a malformed spinal cord. Per the article, the mother has filed a medical malpractice lawsuit and a jury trial is scheduled for early 2013.

Several Published Illinois Cases Contain Fact Patterns Involving Failed Tubal Ligations
In one of those cases an Illinois resident was informed that performance of a tubal ligation procedure would prevent further pregnancies by irreversibly obstructing her fallopian tubes. At trial, she testified that her doctor never advised her at any time that he had lacerated her fallopian tube during her tubal ligation surgery, a mistake which her doctor admitted could have caused the procedure to be ineffective. She subsequently experienced an unwanted pregnancy, and after that she experienced an ectopic pregnancy.

In another case parents brought a medical malpractice action alleging that failed tubal ligation resulted in the birth of a child with congenital hyperactivity disorder. The Supreme Court of Illinois did not allow the parents to recover their damages, because it determined that the birth defects were not a foreseeable consequence of a negligently performed sterilization procedure.

Reversal of Tubal Ligations Does Not Eliminate the Risk of Ectopic Pregnancies
Even if a tubal ligation is reversed, a costly procedure, coverage for which is not mandated by the Affordable Care Act, there is an increased risk of ectopic pregnancy following the tubal reversal surgery. Thus, the women who qualify for free tubal ligations under the Affordable Care Act should carefully consider the risks of their decisions prior to choosing tubal ligation as a sterilization option.

See Related Blog Posts:

Five Birth Injury Lawsuits Filed Against a Single Hospital

Mother files wrongful death lawsuit over preventable pregnancy complication

Volunteers who participate in medical research and clinical trials are essential to developing the medical advances that help improve both the length and the quality of people’s lives. While many of these research subjects have the benefit of exposure to cutting-edge medicines and procedures, they are also subject to many of the risks that come with medical experimentation. In general, before a researcher can enroll a participant in a medical study, he or she must ensure that the subject provides informed consent. If researchers do not provide participants with all the safeguards of informed consent, they may face significant legal liability .

Elements of Informed Consent

As with informed consent to a medical procedure, three elements must be present in obtaining consent for participation in a medical study: capacity, voluntariness, and disclosure. Capacity refers to an individual’s ability to understand the circumstances and make decisions for him or herself. Voluntariness refers to an individual’s right to make a decision freely without being manipulated or coerced. The third element is often the trickiest: researchers must make a full disclosure of the foreseeable risks and benefits of participating in the study, so that volunteers can make an independent and educated decision about whether to participate. When researchers do not adequately make such disclosures, study subjects are unable to make fully informed decisions about their participation.

Lack of Informed Consent in Studies on Premature Babies

Failing to disclose risks to study participants is particularly troublesome when it comes to children, as they do not even have the capacity to consent. A recent article in the New York Times indicates that the Office for Human Research Protections (OHRP) has found that a study on the effect on oxygen levels for extremely premature babies failed to inform the parents of the serious risks, including blindness and death.

This study, spanning across 23 academic institutions – including the University of Alabama at Birmingham, Stanford, Duke, and Yale – involved approximately 1,300 babies who were born at somewhere between 24 to 27 weeks of gestation. Despite the fact that the researchers had enough prior information to warn parents that differing levels of oxygen might have different impacts on their babies’ chances of developing eye diseases or even of dying, the OHRP found that the consent forms made no mention of such risks. Ultimately, 130 babies in the low oxygen group died, while 91 babies in the high oxygen group developed eye diseases that could lead to blindness.

Since the OHRP’s findings are so new, it will be interesting to see if the parents decide to pursue litigation against the researchers for failing to warn them about the serious risks of eye disease and death that their babies could face in the study. Although the article indicates that the babies’ extremely early births made them more susceptible to blindness and death anyway, that does not change the fact that the parents had the right to be fully informed of the likely risks their babies would face in the oxygen study.

Many of the issues surrounding informed consent in research are very similar to the issues regarding informed consent for medical procedures. If you or someone you know think that you have been subject to any procedure without being fully informed of the risks, consider obtaining guidance from an attorney who deals with these issues.

See Other Blog Posts:

Birth Injury Lawsuit Part of Important Supreme Court Ruling

Understanding Brain Cooling & Birth Asphyxia

Birth injury cases are civil lawsuits usually alleging medical malpractice. As we often point out, verdicts and settlements in these cases are sometimes higher than other matters, because the consequences of the injury have effects over a lifetime. For example, if a child with cerebral palsy needs special equipment, medical care, and more over the course of five or six decades, then the costs will be incredibly high. For this reason it is possible, though not necessarily common, for these cases to come with verdicts or settlements of seven figures or more.

Types of Damages in Birth Injury Cases
People often associate all large verdicts with “punitive” damages. Punitive damages are not meant to compensate a victim for their specific harm but instead seek to punish the wrongdoer. It is helpful to understand that large verdicts in birth injury cases almost never involve punitive damages. Instead, they refer to compensatory damages--to “compensate” the victim.

Many of those who decry large verdicts in these cases may be confused about the purpose of the award. Even though paying large verdicts may seem like a punishment, that is not the purpose in these cases. Attorneys working on the matter provide juries (or the opposing party in settlement discussions) with very specific reasons for all damage requests. It is not some large number plucked out of thin air and intended to penalized medical providers for their errors.

Punitive Damages
However, that is not to say that punitive damages are never possible in birth injury matters. But it takes a truly unique situation for such damages to be appropriate--shocking or egregious conduct. This week Justia published a handy primer on the history of punitive damages. It is a great introductory essay that explains how these awards came about and their current limits under state and federal law.

The story notes how some refer to punitive damages as “quasi-criminal,” because the “punishment” aspect of the award is more akin to a criminal sanction than to the usual civil law purposes of providing compensation to make an injured party whole. In fact, those hit with large punitive damage awards--usually large businesses, insurance companies, and other chronic defendants--have made legal arguments over the last few decades suggesting that punitive damages violated the federal constitution.

At first defendant’s argued that the award violated the “cruel and unusual punishments” clause in the document which prohibits excessive fines. Yet, judges struck down that argument early on, because it doesn’t apply to suits filed by private parties. Later, claims were made that the large awards violated the due process clause in the 14th Amendment. Defendants have had a little more success in this regard, as some cases decided by the U.S. Supreme Court agreed that certain punitive damage awards (the very largest) may violate the 14th Amendment. In reaching those decisions, the Court noted that a reasonableness factor must come into play, as the punitive damages likely should not be untethered to the size of compensatory damages. They noted that punitive damages over 10x the compensatory damages may be excessive.

As it stands now, there is still murkiness in the law regarding when the damages are appropriate and how much is too much. For birth injury purposes, however, this is rarely an issue that matters. An attorney who works on these cases can explain how damages might work in your matter.

See Other Blog Posts:

Birth Injury Lawsuit Part of Important U.S. Supreme Court Decision

Current National Zinc Shortage May Endanger Babies

Judgments and verdicts in cases alleging birth injuries caused by medical malpractice frequently make headlines. That is not necessarily because these cases occur all the time, but because the judgments are more sizeable than in some other cases. Awards are often large because they are based on compensation over the course of one’s life as a result of the harm. For children just born, the years that they will be affected by the injury are significant, increasing the damages.

Birth Injury Damages
Of course, because of the size of some verdicts, these cases are often pointed to by “tort reform” advocates as a sign of “jackpot justice.” Those wishing to take away the legal rights of injured patients find value in plucking out random birth injury decisions and using them as some sort of “proof” that legal rules have to be changed.

This represents a gross misunderstanding about how legal damages work. These damage awards are not guessed out of thin air, but based on calculations about the real consequences of an injury on one’s life which was caused by negligence.

Even then, many families must fight to ensure they receive a full award after a judgement. There are frequently many competing claims on part of the funds. For one thing, if any public money was spent on the plaintiff’s care (usually via Medicare or Medicaid programs), then the state may seek to recoup those funds out of the judgement. Often that reimbursement drags out for months (or even years), extending the time a family has to wait before seeing any recovery. And in some cases, the reimbursement demand is excessive. In fact, a case recently reached the U.S. Supreme Court challenging one state law demanding large reimbursements following judgments in these cases.

Birth Injury Case At U.S. Supreme Court
As reported by the Hickory Record, the original case involved claims by a family that their child suffered severe disability, including cerebral palsy, as a result of negligence during her birth by emergency C-Section. The family filed a lawsuit against the medical provider and eventually settled the matter for $2.8 million. However, a law where they lived (North Carolina) demanded that one-third of that settlement automatically be handed over to reimburse the state for Medicaid payments. This automatic reimbursement did not account for specific bills paid. Instead, it was simply a shortcut that made it easy for the state to receive large sums from families affected in this way.

Eventually, the state law was questioned and challenged all the way to the U.S. Supreme Court. Fortunately, in a recent opinion, the high court struck down the state law as inconsistent with federal requirements that prohibited this exact conduct. The opinion noted that the federal anti-lien provisions do not allow a state to pluck an arbitrary number out of thin air as reimbursement. Instead, the reimbursement must be tied to actual payments made. This is a logical decision that will hopefully ensure that no family in a birth injury case (or any civil action) lose an excessive portion of their judgment or settlement

See Other Blog Posts:

Current National Zinc Shortage May Endanger Babies & Others

Understanding Brain Cooling & Birth Asphyxia