Imagine being held underwater for a minute and then being allowed to come up for air – briefly – only to be involuntarily dunked underwater repeatedly. Your brain will go without oxygen for extended periods of time, which can cause severe damage to a healthy adult. Now, imagine the same nightmare scenario when it is an infant in the process of labor and delivery. If the baby survives at all, the lifelong brain injuries can be nothing short of devastating. Even worse – in many situations, this tragedy could have been prevented by more timely intervention from nurses and physicians.
Ever since damage caps went into place in Texas for lawsuits filed on or after September 1, 2003, one of the largest classes of victims of these damage caps are also some of the youngest and most fraile victims – children suffering from cerebral palsy birth injuries.
Whether it’s a lifetime of care due to the need for a feeding tube, speech therapy, physical therapy, vision therapy, or the need for multiple wheelchairs, auditory and speech devices, or other mobility devices, the medical needs of a child suffering from cerebral palsy can reach the millions of dollars. In Texas, there are provisions which at least allow for some of the medical needs of children suffering from cerebral palsy (also known as “CP”) to be awarded in lawsuits.
However, the damage caps do not account for the hourly and daily suffering of these children. In many instances, a child’s brain may function such that the child does have significant intelligence and knows what he or she is *supposed* to do, but that child’s body won’t allow it. As the saying goes, the mind is willing, but the body is unable.
Imagine going through life in this personal , physical prison where you are already sneered at and made fun of by your peers. But in addition to that daily torture, you have to endure the reality of knowing that you desperately want to perform tasks that most everyone else takes for granted, but you are unable to do so. Yet, you can’t understand why your body is not responding to simple commands. That is daily life for far too many children suffering from cerebral palsy.
To account for this lifetime of pain and suffering, Texas Courts allow, in most circumstances, for a whopping award of – I hope you’re sitting down for this – $250,000. Even if the child’s essential medical needs are taken care of, this paltry $250,000 would barely allow for anything special for a child who is suffering from such a devastating illness (that would be less than all of 80 cents per hour to compensate a child’s pain and suffering for the first 35 years of his or her life).
I’m sure we’ve all seen articles how in other parts of the country, there have been lawsuits which should not have been filed, and on some rare occasions, juries have awarded what seemd like large sums of money to people who were not really injured.
But, as a result of pressure from insurance companies, the Texas legislature sought to enact and lobbyist paid big money to mislead the public with a “new era” of tort reform. However, the people who have been punished the most are those who need assistance the most. If a physician and/or nurse doesn’t act appropriately during the labor and delivery process, and a child suffers a lifelong devastating brain injury, that child should certainly be entitled to recover considerably more than 80 cents per hour for the daily pain that he or she suffers.
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