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Medical Malpractice

Understanding Damages in Your Birth Injury Case

May 17, 2023

When someone files a lawsuit in a birth injury case, they are seeking what is often referred to as “damages.” The damages sought in a lawsuit are essentially the compensation that the injured party is seeking from the party that they believe to be at fault. It is important to seek the correct amount of damages as you only get one opportunity – even if you win and the doctor or other medical provider is deemed liable, you cannot go back and seek additional damages if the compensation you receive is not sufficient to cover all of your losses. Working with an experienced birth injury attorney is the best way to make sure you get the compensation you need and deserve. 

What Makes Birth Injury Cases Unique

Most personal injury or medical malpractice cases involve one plaintiff (the person pursuing compensation) and one or more defendants. Birth injuries are unique in that there are, in a sense, two plaintiffs – the parents of the child and the child themselves. As a result, there may be damages that you can seek in a birth injury case that you wouldn’t be able to pursue in another case. For example, you may be able to seek damages for pain and suffering for both the parents and the child or seek compensation for the parents’ lost wages due to having to care for the child. 

In addition, you need to give particular consideration to future damages. Because birth injury cases involve infants, determining how the injury could affect their future can be difficult. Some birth injuries, such as cerebral palsy, can result in severe health problems that will require a lifetime of care. Your child may suffer permanent physical or cognitive disabilities that will pose educational challenges or limit their employment opportunities. As a result, you may need to pursue compensation for the following: 

  • Future, ongoing medical care
  • Special educational needs
  • Home and vehicle modifications
  • Live-in care

A birth injury lawyer can make sure that you get the compensation that you and your child need to move forward in life.  

Economic Damages

Damages are primarily divided into two categories: 

  1. Economic damages
  2. Non-economic damages

Economic damages are any monetary losses that are caused as a result of the birth injury. To put it another way, economic damages can be represented by a receipt, bill, or invoice. For example, your economic damages could include the following: 

  • The cost of medical care required to treat the birth injury
  • The cost of any special accommodations needed in your home in order to care for your child as a result of the birth injury
  • Lost income because you or your spouse had to take an extended leave of absence to care for your child as a result of the birth injury

Economic damages are easier to prove than non-economic damages, but you will still need extensive documentation supporting your claim. As a result, you should keep copies of all bills or other documentation that supports your claim. 

Non-Economic Damages

Non-economic damages are compensation for subjective, non-monetary losses. These non-economic damages can include the following: 

  • Pain and suffering
  • Emotional distress
  • Loss of consortium

Even though these damages are subjective, it does not mean that these losses aren’t real. That said, it can be difficult to calculate these damages, especially in a birth injury case. An experienced birth injury lawyer can help. 

Caps on Non-Economic Damages 

Parents should be aware that there may be a cap on non-economic damages in their birth injury case. Montana has a $250,000 cap on non-economic damages in medical malpractice claims, which includes birth injury cases. Wyoming, on the other hand, does not have a cap on non-economic damages. 

Punitive Damages

Most parents are extremely angry when they learn that their child has suffered a birth injury caused by negligence. As a result, they often wonder if they can seek punitive damages. Punitive damages are damages that are intended to “punish” the at-fault party and deter others from engaging in similarly negligent behavior. 

Punitive damages are not available in every case. In general, they are only available in truly egregious cases where the doctor or other medical provider was grossly negligent or even reckless. In other words, punitive damages are not available in most birth injury cases, but a knowledgeable birth injury attorney will be able to identify whether you have a claim for them. 

Talk to a Birth Injury Lawyer at Ragain & Clark Today

If your child has suffered a birth injury, we can help you get the compensation they need to have the best possible future. Call us today at 406-651-8888 (Billings) or 307-388-6400 (Worland) or contact us online to schedule a free consultation and let’s discuss how we can help. 


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