How do the courts calculate compensation in birth injury cases?

The motivation for most parents to pursue a medical malpractice lawsuit following a birth injury is to obtain the financial resources necessary to provide for their child. As children with cerebral palsy grow and develop, it quickly becomes more and more apparent that their needs throughout their lifetime will be significant, and that the public system is wholly inadequate in providing the level of care and support required. Parents struggle with limited public resources, limited support and services and often no choice in the process. They become exhausted having to advocate at every turn to obtain the most basic services for their child. They worry about who will provide for their child when they are no longer able.

While financial compensation does not solve all of these challenges, a parent’s ability to choose and fund the best support and services available for their child makes all the difference in the life of a child with cerebral palsy. It provides opportunities for growth and development, lightens the load, reduces the financial, physical and emotional stress associated with providing for their disabled child, and provides some degree of peace of mind. The purpose of a lawsuit is to obtain that funding. Financial compensation will often also give the parents their lives back. Proper funding allows for sufficient outside support to allow the parents to go back to work (if they wish to do so), to volunteer outside the home, to have a social life and to have a life again as a couple.

In this section  we will review the main categories of compensation that may be available for a child living with cerebral palsy in a successful medical malpractice matter. Of course no two children with cerebral palsy are alike. The amount of compensation any given child is entitled to receive will depend on that child’s unique needs, abilities and circumstances.

Please be aware that this is not an exhaustive list, rather it is intended to provide a general overview of the most significant areas of compensation. Differences also exist between the various provinces across the country.

Cost of Future Care

This is the most important category of compensation. It is meant to provide an injured person with the money needed to put that person back in the position he or she would have been in had he or she not sustained the injury. In other words, it is supposed to provide sufficient funds to pay for the care needs of the child throughout his/her lifetime.

The process of determining what amount of compensation should be provided to an injured person involves a number of assessments by appropriately qualified experts, such as, in the case of a child living with cerebral palsy, a Pediatric Physiatrist (physician who specializes in the rehabilitation of children), Pediatric Neuropsychologist, Occupational Therapist, Physiotherapist, and Speech Language Therapist. An expert qualified as a Life Care Planner prepares a comprehensive report listing all of the various supports, services and equipment that will be required to provide for the child for his or her entire lifetime, as well as the associated costs.

In practical terms, in the context of a birth injury resulting in cerebral palsy, compensation typically includes the following:

  • Attendant Care: This covers the costs of hiring a support worker during the day and/or night to provide the child with the additional care and support required due to his or her disability, as well as the costs of housekeeping and home maintenance services.
  • Therapy: This includes the costs of all therapy the child may require over his or her lifetime including, for example, physiotherapy, occupational therapy, speech language therapy, psychological therapy, aquatic therapy and hippotherapy.
  • Case Management: This includes the costs of a caseworker, often a nurse or occupational therapist, who plans and organizes the various supports and services required for the child.
  • Equipment: This covers the costs of the wide variety of equipment and technological devices a child living with cerebral palsy may benefit from, including wheelchairs, a wheelchair-accessible van, lift systems, adapted sports equipment, communication devices, etc.
  • Medical Supplies and Medication: This covers the costs of items such as feeding equipment, hygiene supplies, and medication.
  • Home Renovations: This covers the costs of either renovating the child’s current home to make it fully accessible for the child or, alternatively, if it is not possible to renovate the current home, the additional costs associated with building or purchasing an accessible home.
  • Other: In addition to the above, compensation may include the costs of any other items or services recommended by an expert.

Loss of Income/Loss of Income Earning Capacity

As indicated above, each child diagnosed with cerebral palsy is affected differently. Some children with cerebral palsy grow up and find gainful competitive employment with earnings similar to what they would have earned without any injury. These people will have a very limited (if any) claim for compensation under this category.

For many children, however, the combination of physical challenges, communication barriers, cognitive limitations, fatigue and/or numerous medical and therapy appointments, make finding competitive employment as adults simply unrealistic. Their focus is typically on finding meaningful and enjoyable ways to contribute to their communities through volunteer opportunities. In these circumstances, their claim for compensation for the loss of their ability to earn income as a result of their disability is significant.

Compensation for loss of income is calculated by comparing the amount of income the person would have earned had they not suffered their injury with the amount of income they will be able to earn with their injury (if any). In the case of a birth injury it is generally assumed the child would have attained a level of education and earnings similar to what their parents and/or siblings achieved, had he or she not been injured at birth.

Non-Pecuniary Damages (“Pain and Suffering”)

This category of compensation is meant to compensate an injured person for their physical and emotional pain and suffering. While the previous categories of compensation are meant to, in effect, reimburse the injured person for the financial costs associated with their injury, this category of damages is meant to provide an additional fund of money to be used to provide solace to the injured person for what they have lost.

In the late 1970’s the Supreme Court of Canada, our country’s highest court, placed an upper limit on the amount of compensation allowable under this category of damages, of $100,000. The court’s concern at the time was that this was a difficult claim to quantify and did not rely on any objective measure. The court observed that no amount of money could possibly truly compensate a person for the pain and suffering associated with a catastrophic injury and they feared an escalation of the amount of compensation awarded under this category, as has occurred in the United States of America.

This upper limit of non-pecuniary damages has increased over time to reflect inflation and is, at the time of writing, approximately $365,000. In deciding what amount of compensation an injured person is entitled to receive, the court will consider a variety of factors, including the injured person’s age, the nature of the injury, the severity and duration of the pain, the level of disability, and the loss of lifestyle or impairment of life. A child living with cerebral palsy as a result of a birth injury is typically entitled to be compensated at, or close to, the maximum allowable amount of damages.

Other Categories of Compensation

In addition to the above, compensation may also be available for:

  • out-of- pocket expenses incurred by the parents in providing for their child’s disability-related needs up to the time of settlement/ judgment;
  • compensation for the parents’ time spent in relation to providing for their child’s disability-related needs up to the time of settlement/judgment;
  • compensation for the child’s lost opportunity to form an interdependent relationship and benefit from the associated cost sharing of co-habitation; and
  • compensation to pay for the professional services of a financial planner and/or corporate trustee to invest and manage the settlement/judgment funds to ensure it is properly invested and lasts for the entirety of the child’s life.