When a child or mother suffers injury during childbirth, they may qualify for financial compensation. An important question is what damages victims can seek. Our personal injury attorneys explain birth injury damages in South Carolina.
What kinds of damages can birth injury victims in South Carolina seek?
Birth injury victims can seek a range of damages, including:
- Emergency medical bills
- Doctor visits and long-term care
- Physical therapy
- Special education expenses
- Nursing care
- Childcare
- Home modifications
- Travel to medical care
- Pain and suffering
- Emotional distress
- Disability and disfigurement
- Scars
- Loss of enjoyment of life
Economic and non-economic damages in birth injury claims
Some damages in a birth injury claim are economic. That is, they can be measured by actual losses and incurred expenses. The victim’s medical bills are an example. These expenses are calculated and called economic damages.
Other types of damages cannot be calculated using simple addition. An injury during childbirth can change the victim’s life. Victims may seek compensation for these intangible losses. The amount that they receive is proportional to the severity of their injuries. There are several ways to calculate non-economic damages, including using a multiplier of economic losses or a per diem method.
Current and future damages in birth injury claims
One of the challenges in birth injury claims is that a large share of the damages have yet to occur. A child injured at birth may have expenses that last throughout a lifetime. However, the exact dollar amount can’t be known. Plaintiffs are left to grapple with how to make their claim for future damages. The victim must present testimony of the future expenses they are likely to incur.
In Pearson v. Bridges, MD, (S.C. Ct. App. Op. No. 3070, 1999), the court clarified the standard to admit testimony for future damages. The testimony is allowed if the damages are reasonably certain to result in the future from the injury. The evidence must rise above speculation or conjecture.
Testimony as to future damages does not have to be limited to what can be proven to a medical certainty. It doesn’t even have to be the most probable scenario, either. The testimony may be approximated, or the witness may give multiple scenarios of likely outcomes. The jury has the authority to award the most appropriate amount.
Medical malpractice vs. negligence damages in birth injury cases
An important distinction for damages in birth injury claims is the specific type of claim. Most birth injury claims are medical malpractice claims. These claims are based on the professional standards of reasonable healthcare providers. However, ordinary negligence can also happen during childbirth and during the time in a medical facility.
The difference impacts the amount of non-economic damages that the victim may claim. For most claims, South Carolina medical malpractice non-economic damages limits apply. The victim may claim up to $350,000 in non-economic damages against any one provider or institution. They may claim a total of $1.05 million against all defendants for non-economic damages. (Source: South Carolina law § 15-32-220)
A claim may be based on medical malpractice, ordinary negligence, or product liability. The type of claim determines whether non-economic damages caps apply.
Damages for wrongful death in birth injury
Another question in birth injury cases is damages when a wrongful death occurs. South Carolina law says that a family of a live-born child who later dies from a birth injury may sustain a claim for wrongful death damages. (Hall v. Murphy, 113 S.E.2d 790 (1960).) If a child is stillborn due to birth injury, but the child was viable a the time of injury, the family may maintain an action for damages. (Fowler v. Woodward, 138 S.E.2d 42 (1964); but compare West v. McCoy, 105 S.E.2d 88 (1958) and Crosby v. Glasscock Trucking Co. (Op. No. 25132, S.C. 2000), stating that there is no claim for the death of a non-viable child. However, the mother may sustain a claim for medical malpractice injury and damages.
Recovering damages in birth injury cases
Birth injury victims may claim a range of damages. Recovery is a complex process that requires careful review of the available damages and thoughtful presentation of evidence. An attorney for birth injury claims can assist you in preparing and presenting a complete case for compensation. If you or your child has been injured during childbirth, contact our birth injury lawyers to review your claim.
