Nine-figure Cerebral Palsy Verdicts – The New Norm?
Calendar year 2019 was a banner year for birth injury cerebral palsy verdicts. In July of 2019, a jury in Baltimore, Maryland found Johns Hopkins Bayview Medical Center negligent in its care and treatment of a mother and awarded the injured child $229 million dollars. Then, in November of 2019, a jury in Chicago, Illinois awarded $101 million dollars to a child whose cerebral palsy was caused by the negligent acts of an obstetrician at West Suburban Medical Center in Chicago, Illinois. Although these were both record-breaking verdicts, they were not the first nine-figure verdicts in cerebral palsy birth injury cases in the country. Previously, a Michigan jury had awarded over $100 million dollars to a child with cerebral palsy. Is this an aberration, a trend, or the new normal?
The cost of raising a child with cerebral palsy is enormous
Many children with cerebral palsy require around-the-clock care. For those children with limited mobility, feeding tubes and/or a seizure disorder, nursing care is often required from a skilled nurse. A skilled nurse is either a registered nurse (RN) or licensed practical nurse (LPN). The costs of these services are quite expensive, with some agency nurses charging upwards of $75 dollars an hour. The math is simple. To pay for such nursing care it would cost $657,000 dollars per year. Many children with cerebral palsy live well into their 40’s, 50’s and 60’s. Therefore, to care for a child with cerebral palsy – just factoring in nursing care – could cost $30 million dollars over a lifetime. When accounting for other services, such as physical therapy, occupational therapy, speech therapy, medications, etc., it’s easy to see how a jury could award well over $50 million dollars for a lifetime of medical needs for a child with cerebral palsy.
Disparities in obstetrical care are leading to brain damage and cerebral palsy
Another consideration when it comes to large verdicts is the impact of disparate health care. Even the Society for Maternal-Fetal Medicine has recently recognized that racism has an impact on pregnancy outcomes. Of course, this includes outcomes such as HIE, brain damage and cerebral palsy. Disparate health care has undoubtedly become a hot-button issue for many jurors. When they see that such disparate treatment can result in a child being afflicted with brain damage and cerebral palsy for the rest of his or her life, jurors want to make it right. They want to feel like they are giving full justice to the child. Against a backdrop of increasing health care costs, jurors are ensuring that a child injured at the hands of a medical doctor are taken care of for the remainder of his or her life.
What is a lifetime of cerebral palsy worth?
In addition to awarding money damages for medical expenses and lost wages, jurors in a birth injury cerebral palsy trial are also tasked with awarding money for pain and suffering and mental anguish. What is that worth?
This is perhaps the hardest question for any juror. How do you put a dollar figure on a lifetime of pain, suffering, and mental anguish? Jurors we have spoken to in the past believe it should bare some relationship to the economic damage award (i.e., the medical expenses). Other jurors believe that there is no figure to fully compensate for such a terrible injury. In the end, it is not uncommon to see pain and suffering awards in the range of $25 million dollars to $100 million dollars when it comes to a child with cerebral palsy.
The lawyer and law firm play a role
The stakes are high. As such, very experienced lawyers often are involved in cerebral palsy litigation. In fact, cerebral palsy litigation has become a niche practice for many. Because the hospitals and doctors will pay high-priced defense lawyers and law firms to defend the case, families believe they need the best-of-the-best on their side. Many of the best plaintiffs’ lawyers and law firms in the country have, in many ways, mastered the art of litigating and trying these types of cases. It has taken years, but they have changed the landscape in terms of the way the average juror thinks about these cases. Therefore, the quality of the lawyering is certainly playing a role.
Ultimately, it remains to be seen whether these nine-figure verdicts are a new trend, or an aberration. However, until there are wholesale changes in obstetrical care, truly aimed at fixing the patient safety failures of the past 25 years, there will be more and more test cases in courtrooms throughout the country.
