Birth Injury claims are always complex. The person suing must establish that a midwife, doctor, nurse or hospital authority was negligent and that the negligence caused the child’s injuries. In addition, there is a further complicating factor of determining what would be a reasonable quantification of the child’s damages.
The litigation process can be lengthy and often frustrating. The objective is to attempt to get a settlement or award at trial which compensates the child for his / her injuries and lifelong impairments. Of course, it is always preferable to conclude the litigation by way of a reasonable settlement. This article will review when settlement is possible in these cases.
Liability Is Normally Contested Vigorously
Defendants and their lawyers will usually only be prepared to discuss or consider settling these birth injury claims after they are convinced that a claim cannot be defended. Defense lawyers will often use the term “defensible” to describe even the strongest of claims. Once they have received all of the necessary expert opinions from the plaintiffs and have had those reviewed by their own experts, they will make their recommendations to their client in relation to whether the claim can still be reasonably defended. In general, it is only after this process is complete that settlement negotiations are possible.
Assessing Damages For Birth Injury Claims
The question as to “how much” to settle for is usually a question that can only be properly answered after the injured child has been assessed by properly qualified experts who can advise as to what the child needs now and what he child will need in terms of day to daycare in the future and for how long. Those experts may include life care planners, psychiatrists, speech and language pathologists, physiotherapists, neuropsychologists, vocational experts, occupational therapists, and economists.
The child’s lawyer can only make appropriate recommendations as to the value of the claim once the child is old enough for the experts to properly assess the child’s injuries and the care, equipment, therapy, medications, treatment, services and accommodation the child is likely to require over the course of his or her life expectancy. For children with cerebral palsy or other neurological issues, it is usually prudent to wait until at least age five before considering settlement.
Is a Discount Appropriate?
In many cases, even if the Defense is convinced that they are likely not able to defend birth injury claims and they are prepared to consider settlement, there is still a risk to the plaintiff associated with proceeding to trial. There is seldom a case where there is no chance that the plaintiff could lose. Therefore there is usually a need to consider a “discount” off the full value of the claim to reflect the risk to the plaintiff should the claim proceed to trial. The answer to this question is best obtained with input from experienced lawyers who have been through the process before in similar cases.
Settlement Requires Court Approval
Finally, any decision to settle birth injury claims will normally require a review by the provincial Public Trustee or Children’s Advocate who will review all aspects of the settlement to ensure that it is in the best interests of the child.
The goal of birth injury claims cases is to reach a fair settlement that achieves recovery sufficient to provide for the care needs of the child. This goal is only achieved when the Defense is convinced that the lawyers for the claimant are fully prepared to proceed to trial in the event that a fair settlement cannot be reached.
The question of “when to settle a birth injury claim” is answered in general terms by saying that usually both the Defense and the plaintiff require several years of litigation before they have the necessary information to properly assess the strength of the claim and likely quantum of damages. Once that process is complete, your lawyer will be in a position to advise you as to whether a settlement is likely or whether a trial will be necessary.
Toronto birth injury lawyer Charles Gluckstein was appointed President of the Ontario Trial Lawyers’ Association from 2013-2014. Since 2014, Best Lawyers® International has consistently recognized him as a leader in the personal injury field. In 2014 he was awarded the LEXPERT Zenith Award for Leading Personal Injury Lawyer in Practice Excellence, in recognition of thought leadership and the setting of new standards for the Personal Injury Bar. In its annual publication, the Canadian Legal LEXPERT® Directory has listed Charles as being repeatedly recommended by his peers in the area of personal injury for the Toronto region.