Catastrophic Birth Injuries – How are Damages Quantified?
Serious birth injuries such as cerebral palsy can cause significant physical and sometimes cognitive disabilities which are irreversible. These injuries can occur naturally and are not always the result of negligence or substandard care from medical practitioners. However, errors can be made which cause these injuries and, in these circumstances, the parents of the injured child can make a claim for damages to cover the substantial costs of care and treatment for the rest of the child’s life.
Background to Damages
Reports of high value settlements in these types of cases can often be taken out of context. The perception can sometimes be that successful plaintiff’s have been over compensated. However, this fails to take account of the significant expenses involved in caring for someone with cerebral palsy or another significant impairment, as well as the pain and suffering suffered by the injured party. The purpose of this article is to dispel the myths around birth injury settlements and to explain exactly how damages in these cases are quantified.
As in any other medical negligence claim the first step is to establish liability and causation against the defendant healthcare provider or medical practitioner by obtaining independent medical reports from experts specialising in the relevant field.
Where liability is not in issue or has been resolved at an earlier stage in the case the Court will turn to assessing what damages should be awarded to the Plaintiff. The overall award is usually made up of two distinct heads of loss known as general and special damages.
General damages are essentially compensation for injuries sustained including pain, suffering and restrictions in daily life that would not have occurred but for the negligence of the defendant. In Northern Ireland the calculation of general damages is informed by the Personal Injuries Green Book which sets out ranges of damages for different injuries. The most serious injuries such as quadriplegia and brain damage are quantified at a maximum of £700,000 and £670,000 respectively.
In the Republic of Ireland damages are now assessed by reference to the Personal Injuries Guidelines which assess quadriplegia and brain damage at a maximum of £550,000.
In both jurisdictions the assessment of general damages will be based on expert medical evidence which sets out the physical and psychological impact the injuries will have on the injured party for the rest of their lives. In birth injury cases there is generally a high volume of expert medical reports obtained from both the plaintiffs and defendant’s solicitors.
It can often be more difficult to agree on general damages with the defendant as the quantification is based on guidance and not specific financial losses.
Special damages are specific financial losses which have been incurred or will be incurred as a result of the defendant’s negligence. The most common examples of special damages in birth injury cases are the costs of care and treatment in future, past and future medical expenses and future loss of earnings or reduced earning capacity.
Special damages are quantified by experts such as forensic accountants and actuaries who will assess past and future losses. These assessments are usually quite complex and will take into account a variety of factors including the exact costs of care now and in future as well as the life expectancy of the injured party.
As previously mentioned, serious birth injury cases usually involve permanent disability which requires life long care and treatment. As a result of this the assessment of special damages will usually be significant.
Distribution of Damages
Awards of damages in cases of this nature need to be approved by the Court. Therefore, even if a case settles out of Court it will be necessary for the Judge to consider whether the settlement is appropriate. The Judge will consider all of the expert evidence and, in particular, whether the settlement is in the best interests of the injured party.
The Court adopted this approach in a birth injury case which resulted in the highest ever personal injuries award in the history of the Irish state. In this case the Plaintiff was awarded an interim payment of €6.7 million during the case followed by a final payment of €25 million.
In cases where liability is not disputed the Court may consider awarding an interim payment to the Plaintiff to assist their family in paying for medical treatment and other care needs which have been accruing. The remainder of the compensation would be paid at the end of the case.
A lump sum payment can also be made by the Court at the end of the case. However, this approach has been criticised in catastrophic birth injury cases as it may result in compensation being used up before the Plaintiff dies.
The use of periodic payments appears to be the most appropriate model in cases of this nature. This will generally mean that the plaintiff will receive an initial lump sum followed by annual instalments which cover all relevant costs up until the Plaintiff’s death. This model helps to ensure that the Plaintiff is properly provisioned for throughout their life.