Brain Damaged Infants
Everyone sympathizes with injured children and the financial problems of parents who must care for them. It is usually difficult for the doctor to show he did not injure the child. So many things can go wro
ng during pregnancy and delivery, and newborn infants are easily damaged. That is harsh, and infants are born with birth defects from natural causes that have nothing to do with the delivery or the care in the nursery. But, the birth defects that are due to other causes are of different types. When a newborn infant or small child is found to be suffering from a brain hemorrhage, hypoxia (lack of oxygen) to the brain, cerebral palsy, or injuries to the nerve trunks to the arm, the cause is probably a birth injury that could have been avoided.
In a Texas case, a newborn infant suffered a brain hemorrhage which resulted in severe, permanent impairment. The delivery was normal and the APGARs (tests performed by the doctor or nurse right after an infant is born to determine how healthy it is) were normal when it was born. No one could explain it. It was passed off as “one of those accidents that happen.” Then, about three years later, a nurse let it slip that she had dropped the infant on the floor while bathing it. There was no one around, so she put it back in the crib and said nothing. Luckily, the person she talked to was a friend of the child’s mother and relayed the story. When questioned under oath, the nurse admitted the accident, and the child’s parents brought a successful lawsuit against the hospital, which was responsible for the nurse’s actions.
The Rule Is: A brain damaged infant, or child with cerebral palsy, is due to some error or malpractice until proven otherwise.
Another powerful factor in your favor is that the jury wants to help the victims of this tragedy, no matter who was or was not at fault. Society wants to help the victims of this tragedy. There are limited public funds available, and the only way to do so is out of the doctor’s malpractice insurance. It is what is called loss allocation. Like workman’s compensation, it is a legal theory that allows juries to help people who have been severely injured through no fault of their own, without having to decide whether the doctor did something bad or just made an honest error that caused the injury.
Patient Permanently Disabled or in a Coma
When a patient is left permanently disabled and can no longer care for himself or herself, the costs of medical care become astronomical. Juries tend to be sympathetic, if not to the comatose patient, then to the family facing huge medical costs.
In these cases, the jury wants to help out, and the only money available is the doctor’s insurance policy. Public funds or assistance are inadequate. So, juries will bend over backward to find an excuse to give a helping hand. They see their social responsibility as helping the person who has been severely injured, and the family burdened with crushing expenses, rather than trying to split hairs in deciding whether or not the doctor made an error or a cold, impartial balancing of the scales of justice. They believe the easiest way to help with the problem is to have the doctor’s insurance company pick up the expense.