Medical malpractice lawsuits are high-stakes personal injury cases that routinely result in multi-million-dollar settlements and verdicts. These cases come in various types (such as misdiagnosis and surgical error) and each category of malpractice tends to occupy its own place on the average settlement value spectrum. For instance, surgical malpractice cases have a higher average value compared to cancer misdiagnosis or nursing home malpractice cases.
Birth injury cases have the highest average value of any type of medical malpractice case. Nationally, the average settlement and/or verdict in a birth injury case is roughly 20-30% higher than the average payout in all other types of medical malpractice cases. In Maryland, this gap is even bigger with birth injury cases having an average value close to 50% higher than other malpractice cases.
In this post, we will explain the driving factors that give birth injury cases such high values. We will also look at sample settlements and verdicts from actual birth injury cases around the country to illustrate how these factors actually work.
The Average Value of Birth Injury Cases
The average settlement payment in birth injury malpractice claims is $405,000 to $494,000. The median is slightly lower. The average verdict in birth injury cases that go to trial is $1.6 million. By comparison, the average settlement value in regular medical malpractice cases is $295,000 to $370,000 and the average verdict is just over $1 million.
These averages are based on national verdicts and reported settlements from all 50 states. The average values for both birth injury cases and general med mal cases are often higher or lower in certain states. In Maryland, the average value of medical malpractice cases is significantly higher than the national average.
One thing to keep in mind is that the average value for settlements is based on reported settlements only. The vast majority of birth injury settlements are confidential, especially the very biggest settlements. This means that the average settlement amounts are almost certainly a gross underestimate because they do not include most of the settlements at the highest end of the value range.
What Drives the Settlement Value of Birth Injury Cases?
There are two primary factors that combine to drive up the settlement value in birth injury cases and give them the highest potential value of all malpractice claims: (1) the severity of the injuries involved; and (2) the scope of economic damages.
Severity of Injuries
One of the main reasons that birth injury cases have such a high average value is that these cases often involve some of the most devastating types of injuries. Neurologic birth injuries such as HIE can leave a child with major life-long disabilities such as cerebral palsy.
Children born with severe types of cerebral palsy are often unable to walk and will require a wheelchair or mobility aid for the rest of their life. They may also be unable to perform basic functions such as feeding or getting dressed. Children with serve cerebral palsy like this will often require daily medical care and assistance from the day they are born and throughout their adult life.
Even children with less severe cases of cerebral palsy will usually require a lifetime of regular medical care and assistance. Things like regular physical therapy and occupational therapy, electric wheelchairs, walkers, mobility aids, and special education services are often basic necessities for these children. Needless to say, children with these types of devastating injuries make very sympathetic plaintiffs.
Birth injuries cases often have a very high potential value because they involve a lifetime of economic damages which are not subject to maximum caps like non-economic damages (e.g., pain & suffering). Economic damages in a malpractice case include the cost of both past and future medical treatment related to the injury and future lost income (or loss of future earning capacity).
In a typical medical malpractice case, economic damages can be somewhat limited. If a 60-year-old plaintiff can never work again they are only losing 5 years of lost income. By contrast, birth injury cases frequently present a seemingly unlimited potential for future economic damages. Birth injuries like cerebral palsy may require a lifetime of future medical care and 45 years’ worth of lost future earning capacity. The lost future earnings capacity alone can add up to several million.
In recent years, Maryland and many other states have responded to complaints about excessive medical malpractice awards by enacting laws that put maximum caps on the amount of damages that can be awarded in these cases. These caps usually only apply to pain & suffering damages (i.e., non-economic damages). Most states, Maryland included, do not have any maximum caps on economic damages. Since birth injury cases tend to be very heavy on economic damages this tends to drive up their potential value considerably.
Sample Settlements and Verdicts in Birth Injury Cases
The best way to get an understanding of the typical value of birth injury cases is to look at examples from prior cases. Below are summaries of reported settlements and verdicts in actual birth injury cases.
Cerebral Palsy Settlements & Verdicts
Cerebral palsy is general the result of oxygen deprivation during childbirth. Severe cerebral palsy can be one of the most serious types of birth injuries and these are often high-value cases.
- $21,000,000 Settlement (2019 Illinois): child suffered oxygen loss during delivery due to failure to manage preeclampsia resulting in a very serve case of cerebral palsy which left her immobile, mentally disabled, and requiring 24-hour medical care for life.
- $7,500,000 Settlement (2019 Oklahoma): negligent monitoring of Pitocin led to overstimulation causing child to suffer metabolic acidosis and HIE. He was diagnosed with spastic quadriplegic cerebral palsy leaving him wheelchair-bound and unable to speak.
Erb’s Palsy Settlements & Verdicts
Erb’s palsy is caused by injury to nerves in the baby’s shoulder and neck during delivery which results in some level of paralysis in the arm. Compared to things like cerebral palsy and brain damage, Erb’s palsy is one of the less serious types of birth injuries, and these cases are therefore at the lower end of the value spectrum.
- $365,000 Settlement (2020 New York): child suffered brachial plexus nerve damage during delivery and was diagnosed with Erb’s palsy, but it was not a very severe case with no permanent paralysis of the arm resulting in lower settlement value.
- $2,320,000 Verdict (2018 Virginia): damage to right brachial plexus nerve during delivery complicated by shoulder dystocia resulted in Erb’s palsy with permanent partial paralysis of the arm. The OB/GYN disputed liability case went to trial and ended in sizeable verdict.
- $900,000 Settlement (2017 New Jersey): doctor used too much traction in response to shoulder dystocia during delivery resulting in nerve damage and Erb’s palsy with moderate paralysis.
- $2,000,000 Settlement (2016 New York): negligent care related to shoulder dystocia resulted in Erb’s palsy in baby’s right arm and fracture of the left humerus. No permanent paralysis, but combination of Erb’s palsy in one arm and broken bone in the other arm gave likely drove the value up in this case.
HIE Brain Damage Settlements & Verdicts
HIE is a very serious and potentially deadly type of birth injury that can leave a baby with permanent brain damage. HIE often results in sever cases of cerebral palsy and other major disabilities and it is a leading cause of neonatal fatalities. These are high value birth injury cases.
- $6,000,000 Settlement (New York 2019): significant oxygen deprivation causes hypoxic-ischemic encephalopathy (HIE) during birth and child is diagnosed with spastic quadriplegia (most severe type of cerebral palsy) and is dependent on feeding tube. Only reason this case didn’t settle for more is probably because child had limited life expectancy.
- $4,200,000 Settlement (2018 Maryland): HIE from prolonged oxygen loss during delivery leaves child with cortical blindness, developmental delays, and seizures, although no immobility.
- $33,153,000 Verdict (2017 Florida): child suffers HIE during delivery which leads to secondary brain bleed and massive injury to the brain. Injuries leave child in near vegetative state, depending on feeding tube, completely immobile, and requiring round the clock hospital care. This case is an example of how jury sympathy and unrestricted economic damages can result in massive verdicts.