Calculating Damages for Wrongful Birth Claims When Medicare is Involved – Simms v. United States

newbornIn West Virginia (and other states), a special claim exists for parents who give birth to a severely developmentally disabled child because they were not adequately informed of such disabilities during the pregnancy. Since a doctor or hospital’s failure to provide the parents with the proper information about their pregnancy deprived them of the opportunity to decide whether to bring the child to term, they may sue for the medical expenses and other damages that occur after the child’s birth. This is known as a wrongful birth claim. Wrongful birth claims can often result in extraordinary damages awards because of the enormous costs of taking care of a developmentally disabled child.  A recent case before the Fourth Circuit Court of Appeals looked at whether West Virginia residents are entitled to such damages even when their medical expenses are being paid by a program such as Medicaid.

In Simms v. United States of America, Ms. Simms received prenatal care at a federally supported health facility. During an initial ultrasound, physicians noticed fetal abnormalities but did not inform Ms. Simms. They did not conduct any follow-up appointments until late in Ms. Simms’ pregnancy, when they informed her that her fetus’ brain was significantly underdeveloped, and her child would likely never talk or walk. By then, it was too late for Ms. Simms to terminate the pregnancy under West Virginia law.  Ms. Simms gave birth to a son who was extremely disabled and in an ongoing “vegetative state.”  He requires 24-hour care, and in his eight years of life, thus far, has required over two million dollars in medical expenses.  Ms. Simms brought a wrongful birth action against the federal government. The district court found the government liable and awarded her over 12 million dollars in damages, including past billed medical expenses and projected future medical expenses.  The federal government did not appeal the finding of liability but argued that the district court should not have awarded her damages for medical payments that were ultimately paid by Medicaid.

In West Virginia, a parent may bring a wrongful birth claim to “recover the extraordinary costs for rearing a child with birth defects.”  The Fourth Circuit determined that such damages included both the medical costs attributed to the child as well as ongoing  support costs after the child reaches the age of 18. Under the existing laws, such expenses are a reimbursable injury even if they are being paid by another individual or entity. Moreover, the Fourth Circuit also noted that under West Virginia’s “collateral source rule,” even if part of a plaintiff’s injuries or damages are paid by a third-party source, such third-party payments cannot be used to reduce a defendant’s liability because this would unfairly reward the defendant. Accordingly, the Fourth Circuit held that Ms. Simms’ Medicaid expenses were protected and could not be used against her to reduce her damages award at trial.

However, the Fourth Circuit also noted that West Virginia’s Medical Professional Liability Act does impose additional requirements on plaintiffs in West Virginia when dealing with collateral source issues. Specifically, defendants are entitled to a pre-judgment hearing regarding any payments a plaintiff may have received from third-party sources. If a defendant shows that a plaintiff has received such payments, the district court may consider this in awarding damages, unless the third party may also seek to recover its expenses from the plaintiff.  Here, the Fourth Circuit noted that the district court did not properly conduct such a hearing, and it concluded that such a hearing should be conducted under West Virginia law. Accordingly, it remanded for the district court to fulfill its obligations by conducting the requisite collateral source hearing.

If you are seeking damages for expenses that you have incurred as a result of someone else’s actions, West Virginia’s collateral source rule will protect you even if other third parties, such as insurers or employers, have helped you pay some of those expenses. However, if you are dealing with medical expenses, you must also abide by West Virginia’s Medical Professionals Act, which imposes additional requirements and considerations on third-party payments. An experienced personal injury or medical malpractice attorney can help you navigate these various laws. Our West Virginia medical malpractice lawyers have been assisting clients with wrongful birth, medical malpractice, and similar claims for more than 25 years. Located in Elkins, West Virginia, the firm represents clients in a wide range of injury, criminal defense, and bankruptcy matters. Call us at 1-877-637-5756 or contact us online for a free consultation.

Related blog posts:

Multiple Avenues for Personal Injury Relief – Spangler v. McQuitty

Uncovering Medical Errors in West Virginia and Throughout the Country

Punitive Damages in West Virginia Medical Malpractice Cases – Moore v. Ferguson