Can Punitive Damages Be Awarded in Birth Injury Cases?
No family anticipates the trauma of a birth injury after the delivery of a newborn. Unfortunately, medical malpractice in Kentucky causes many preventable birth injuries each year. If your child gets diagnosed with a birth injury, your family may be entitled to financial compensation, or damages, for many different types of losses. If the doctor or defendant behaved particularly poorly or with extreme negligence, one possibility is punitive damages.
What Are Punitive Damages?
The two main types of damages awarded in a personal injury case are compensatory and punitive. Compensatory damages are more common. They make an accident victim whole again by compensating for economic and noneconomic losses. Compensatory damages can restore the victim to the financial state that he or she would have been in had the birth injury never occurred. They can pay for:
- Past and future medical bills
- Medical travel
- Out-of-pocket costs
- Legal expenses
- Disability accommodations
- Special education
- Pain and suffering
- Lost quality of life
Punitive damages, on the other hand, are awarded to punish the defendant and send a message. They are granted to serve as a warning and to discourage the defendant – and others – from behaving similarly in the future. For this reason, they are often referred to as exemplary damages, to set an example for the community. This type of financial award is rare in Kentucky. However, a birth injury case may result in punitive damages under certain circumstances.
When Are Punitive Damages Awarded in Kentucky?
Each state has its own rules for if and when punitive damages can be awarded in a personal injury claim. Kentucky Revised Statutes Section 411.184 states the conditions that must be met. In general, a defendant (such as a hospital, birthing center or OBGYN in a birth injury claim) must be guilty of especially wrongful acts in connection to a birth injury, such as:
- Oppression. Conduct against the plaintiff that the defendant specifically intended to cause cruel and unjust hardship.
- Fraud. A knowing and intentional misrepresentation or concealment of a material fact known to the defendant and intended to cause injury to the plaintiff.
- Malice. Either conduct meant to cause the plaintiff injury or conduct committed by the defendant with flagrant indifference to the plaintiff’s rights and an awareness that the conduct will result in bodily harm or death.
As you can see, punitive damages are typically reserved for extreme examples of medical malpractice, such as cases where a doctor intentionally injured the patient or her child. In general, the courts must be exceptionally angry or disturbed by the defendant’s actions to award punitive damages, as they are meant to send a message to the doctor about what he or she did wrong. As such, these awards are not granted often.
How to Prove a Claim to Punitive Damages
It will be up to you or your birth injury attorney to make an argument for punitive damages by proving that the defendant committed an especially negligent or egregious act with at least a 51 percent certainty. This burden of proof is known as a preponderance of the evidence, and it rests with the plaintiff during a birth injury claim. Evidence that may be available to support a claim for punitive damages includes eyewitness statements, expert medical witnesses and medical records. Be aware, however, that punitive damages are rare in medical malpractice and birth injury claims in Kentucky.
Is There a Cap on Punitive Damages in a Kentucky Birth Injury Lawsuit?
A punitive damage award has the power to significantly increase the overall value of a civil claim, as it is entered in addition to any compensatory damages. Many states have caps, or limits, on punitive damages. In Kentucky, however, there is no limit. This means that in the event that you are awarded punitive damages in a birth injury lawsuit, the amount will be determined only by the degree of your losses and the actions of the defendant – not a legally imposed maximum.
To find out how much your birth injury case might be worth and discuss the possibility of punitive damages, contact Hendy | Johnson | Vaughn | Emery to request a free consultation.