It’s conventional wisdom among trial lawyers and insurance lawyers that few plaintiffs are as sympathetic as a brain-damaged baby. The baby plainly did nothing to contribute to their harm, but has nonetheless been deprived of many of the basic joys of their infancy, childhood, adolescence, and adulthood. It’s thus presumed that, if a jury finds liability in a birth injury lawsuit — like a negligent hospital or obstetrician that failed to observe fetal distress, leading to hypoxia, or failed to treat jaundice, leading to kernicterus — they’ll inevitably award a substantial amount of non-economic damages for pain and suffering. Indeed, that was the whole thought behind New York’s misguided “reform” which limited non-economic damages to $250,000.

Conventional wisdom suggests that Ja’Kareon Graham was a sympathetic plaintiff. It wasn’t his fault he was brain damaged at birth, that at 4 1/2 years old he can’t speak, that he’s fed through a gastric tube and needs round-the-clock medical care. It was the fault of the nurses and obstetrician who delivered him. He was a twin, and the nurses only bothered to monitor his twin’s heart rate; by the time he was born, he had spent hours in fetal distress.


The hospital’s expert claimed (see this story) that he was too small to monitor correctly, but that’s just rubbish: one of my twins was smaller than Ja’Kareon and also wasn’t showing up on the fetal heart rate monitor, so the attending obstetrician — after he learned what I did for a living — brought in another doctor to follow her with an ultrasound, and she was delivered the moment trouble appeared.

Compounding the problems, Ja’Kareon became stuck after turning to breech position, and the obstetrician negligently dithered around for a while before ordering an emergency c-section. The prolonged hypoxia and resulting metabolic acidosis caused his cerebral palsy.

Conventional wisdom, but perhaps not actually correct:

An Erie County jury has delivered what is believed to a be record $21.6 million verdict in the case of a boy who suffers from cerebral palsy as a result of a lack of oxygen during birth. … On April 20, following a trial that was just over a week long and deliberations that lasted about three hours and 40 minutes, a unanimous 12-member jury delivered the $21,573,993.10 verdict against defendant Hamot Medical Center of the City of Erie in President Judge Ernest J. DiSantis Jr.’s courtroom. According to the verdict slip in Graham v. Townsend , $19,588,217 was awarded for future medical expenses and is to be paid in annuities through 2081, while $1,424,314.10 was for past medical expenses and $561,462 was for lost earning capacity.
Notice anything missing there?

That’s right: the jury awarded the child zero in non-economic damges.

To see what the jury didn’t think he deserved, let’s take a refresher on non-economic damages in Pennsylvania by reviewing the civil jury instructions:

The plaintiff has made a claim for a damage award for past and for future noneconomic loss. There are four items that make up a damage award for noneconomic loss, both past and future: (1) pain and suffering; (2) embarrassment and humiliation; (3) loss of ability to enjoy the pleasures of life; and (4) disfigurement. … [P]laintiff is entitled to be fairly and adequately compensated for all physical pain, mental anguish, discomfort, inconvenience, and distress that you find (he) (she) has endured from the time of the injury until today and that … (he) (she) will endure in the future as a result of (his) (her) injuries. … Plaintiff is entitled to be fairly and adequately compensated for such embarrassment and humiliation as you believe (he) (she) has endured and will continue to endure in the future as a result of (his) (her) injuries. … Plaintiff is entitled to be fairly and adequately compensated for the loss of (his) (her) ability to enjoy any of the pleasures of life as a result of the injuries from the time of the injuries until today and … in the future as a result of (his) (her) injuries. … The disfigurement that plaintiff has sustained is a separate item of damages recognized by the law. Therefore, in addition to any sums you award for pain and suffering, for embarrassment and humiliation, and for loss of enjoyment of life, the plaintiff is entitled to be fairly and adequately compensated for the disfigurement (he) (she) has suffered from the time of the injury to the present and that (he) (she) will continue to suffer during the future duration of (his) (her) life. In considering plaintiff’s claims for damage awards for past and future noneconomic loss, you will consider the following factors: (1) the age of the plaintiff; (2) the severity of the injuries; (3) whether the injuries are temporary or permanent; (4) the extent to which the injuries affect the ability of the plaintiff to perform basic activities of daily living and other activities in which the plaintiff previously engaged; (5) the duration and nature of medical treatment; (6) the duration and extent of the physical pain and mental anguish which the plaintiff has experienced in the past and will experience in the future; (7) the health and physical condition of the plaintiff prior to the injuries; and (8) in case of disfigurement, the nature of the disfigurement and the consequences for the plaintiff.

The jury took a close look at the child’s lifetime of round-the-clock care, the fact that he can’t even eat, much less feed himself, and decided it was worth nothing. Nothing for physical pain. Nothing for mental anguish. Nothing for loss of pleasures of life.


Would they have checked “yes” if there had been a item on the verdict slip for awarding him a lump of coal?


Yet, the award itself is not an unusually small size. It’s actually high: appellate courts generally take large birth injury verdicts move them down below the $10 million range, often below the $5 million range. Last month the family of baby in New Jersey who suffered similarly debilitating injuries as the result of a compromised umbilical cord — blindness, seizures, loss of head control — requiring full-time care settled their claims against Bayonne Medical Center for $8.5 million. It’s not like the Erie County jury was stingy.


So what happened? I believe it’s the result of more than a generation of insurance-industry funded propaganda (deceptively called “medical malpractice tort reform“) which has taught everyday citizens that non-economic damages aren’t “real” damages. Thus, when a jury is presented with a case that undoubtedly shows extensive pain and suffering — nothing less than taking away a normal, productive life and replacing it with a nearly vegetative state that requires constant health care intervention just to sustain — that jury either doesn’t know how to award non-economic damages or is so afraid of awarding them that they lump them in with future medical expenses.


Assuming this ends this case (the article references a high-low settlement agreement but doesn’t say if any rights of appeal were reserved), Ja’Kareon will receive enough money for his trust fund to fund adequate care for the rest of his life, but that’s because the jury apparently overestimated the cost of his future health care. The same can’t be said for the thousands of medical malpractice plaintiffs whose meritorious cases are either rejected because they’re too risky in this “tort reform” environment or whose cases win at trial but result in inadequate awards.


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