What Types of Damages are Included in Wrongful Birth Awards in New Jersey?
A child born with birth defects brings both joy and hardship. A new life means an expanded family and another human being to watch grow up. Nevertheless, a baby born with congenital disabilities also brings financial and emotional hardships. Children with physical and cognitive challenges often need lifelong medical treatment, and some need round-the-clock care. Importantly, when a child is born with severe defects due to a medical professional’s failure to detect congenital disabilities through competent medical care, advice, and practice, a family may sue for wrongful birth for a child’s needs and other damages caused by a negligent party.
Types of Damages and Their Associated Needs
Wrongful birth damages in New Jersey encompass economic, non-economic, and punitive damages. Economic damages include medical expenses arising from the child’s disability or disease. Thus, a child born with Tay Sachs disease, a hereditary condition, may need many items and services. For example, they may have ongoing needs for medications for seizures, plus adaptive physical and other rehabilitative therapy for muscle weakness and spasms. They may need specialized care with aides, nurses, and devices to help with walking, speech, swallowing, hearing, and vision loss.
Economic Damages in Wrongful Birth Awards
These medical device costs and hospital bills, doctor’s visits, surgeries, tests, prescriptions, and checkups, past, present, and future, are compensable as economic damages in a wrongful birth lawsuit. In addition, any home modifications to accommodate a child with disabilities, such as wheelchair ramps and handicap-accessible vehicles, are included in damages claims and awards.
Other economic damages that a judge, jury, or insurance company may consider in a wrongful birth claim is the child’s lost earning potential due to their injury or birth defect. Consider that the child with cognitive deficiencies or severe physical limitations may be unable to hold a basic job, let alone pursue a career. Thus, the burden of lifelong support may be on the parents or the child on government assistance. While these damages may be difficult to assess, an expert, such as an actuarial, may assist in proving the future lost economic earnings calculations.
Non-Economic Damages in a Wrongful Birth Claim
Non-economic damages are more difficult to quantify than economic damages. The physical and mental pain and suffering of having a child who must endure a painful medical condition and treatment for life are non-economic damages requested in a wrongful birth action. Emotional injury to the parents for caring for the child for their lifetime is also compensable, including their mental anguish, emotional distress, anxiety, post-traumatic stress disorder, and lost life enjoyment. Parents may live in fear for their child’s well-being and ability to care for them. These are the sufferings of wrongful birth plaintiffs.
Punitive Damages for Undiscovered Birth Defects
Unlike compensatory damages, which aim to make an injured party’s life as close as possible before the wrongful birth occurred, punitive damages seek to discourage grossly negligent or intentionally harmful behavior that causes another to suffer economic and non-economic losses. Though rare, punitive damages may apply to cases where an obstetrician failed to advise parents about the risks of genetic diseases given their history and background or to order genetic testing. Not giving parents the choice to give birth to a child with congenital disabilities by advising them of testing or the risks, a standard practice in obstetrics, a jury may punish a physician for gross negligence if the particular conduct rises to that level.
Compensatory Benefits of Settlements Over Litigation
Most claims settle without a trial because of the complexity and high costs of litigating a wrongful birth lawsuit. In that way, the plaintiffs, typically the parents and defendants or medical providers, may save time, money, and risks of going to trial. Allowing a jury to decide if or how much a plaintiff gets as a compensatory award is never certain. Jurors may have sympathies and prejudices about such awards or physician liability, despite the evidence. They may decide on minimal awards or none. And then again, they may award plaintiffs excessively in sympathy for the plaintiff or antipathy toward the defendant.
Since settlements award families compensation faster than trial verdicts, delivering much-needed funds to a child and their family, attorneys working for injured families may pursue that route first. They may begin by discussing potential settlements with the plaintiffs’ representatives to determine if an agreement can be reached without litigation. Before making a demand for a damages payment, an attorney must have all documents, evidence, and assessments to support a payment demand. The plaintiffs will have their own ideas when evaluating the economic and non-economic losses demanded in a settlement.
The Issue with Insurance Companies
If the responsible healthcare providers settle, they agree to pay compensation to the family to provide them with necessary financial support for childcare, treatment, and quality of life, among other damages. Settling saves money, but sometimes a million or multi-million-dollar settlement may not be possible due to failing negotiations with insurance companies. They may force a plaintiff to take their case to trial.
The Prelude of a Wrongful Birth Settlement Agreement
An earlier time to resolve a wrongful birth claim is in the early stages. Settlement discussions may occur with or without an agreement being reached, in which case the lawsuit goes to trial. Once preparation for litigation begins, there are several potential outcomes. Sometimes, settlements occur after more information and evidentiary proof are available through discovery, such as document exchanges, depositions, and expert opinions. A settlement occurs when the parties agree on the amount and terms of payment, among other conditions, such as a non-disclosure agreement to keep the settlement private.
Proving Fault When a Trial is the End of the Road
When liability is in dispute, a full trial may be necessary. There, medical experts testify to the ordinary standards of medical practice in the obstetrical or other relevant medical field to help prove fault, along with attorneys who utilize medical documentation and other evidence, additional witnesses, add compelling arguments to prove all of the necessary elements of the case. Then, evidence goes to a jury that reaches a verdict regarding liability. If the judgment is for the plaintiff, the jury must determine the percentage of liability if there are multiple defendants, the total damages to be awarded, and how much each of the defendants owes. So, rather than the parties negotiating how much the plaintiff receives, this hinges on a jury’s verdict.Â
Request Assistance Pursuing Damages for Wrongful Birth in NJ
Consult with an accomplished, compassionate wrongful birth lawyer at Fronzuto Law Group first and foremost to assess your case and discuss the settlement and lawsuit pathways. Hiring our attorneys to negotiate a settlement or file and argue your lawsuit at trial can significantly help you and your family if you have a wrongful birth claim. You need a strong team of legal advocates who will defend your interests in settlement negotiations, reach a fair sum to compensate your family, and head to trial with the most effective strategy to reach a successful jury award if necessary. We can ensure that you file a lawsuit within the statute of limitations, gather all necessary documents to prove your claim, such as medical records and life-care plans, and identify the experts you need for the legal process to validate and support your case.
Our dedicated New Jersey law firm has been trying, settling, and winning wrongful birth and birth injury cases for decades, and we know the best methods for investigating, preparing, and approaching the case from every angle. Call (973)-435-4551 for answers, a free case assessment, and further exploration of your options. Chief in mind are you and your family, which drives us ahead in our efforts to recover the financial award your child with a birth defect needs and should have for justice to be served.
