Step 7: Verdict and Judgment

A verdict is an official decision made by a jury after jury deliberation. The verdict is generally presented in court. The court typically will accept the verdict. In a bench trial where there is no jury, a judge or three-judge panel makes a decision referred to as a judgment. A judgment is considered a decision of the court in determining the respective rights and claims of the parties involved in the complaint. A judge’s decision is documented in written form and presented in court.

If the verdict favors the plaintiff and finds fault with the defendants, then the judge and jury will recommend the amount of monetary compensation to be awarded to the plaintiff for loss, injury, or harm. There are basically two types of damages awarded:

• Compensatory damages – The remedy for medical malpractice and birth injury is compensation for the harm provided to the plaintiff. In cases of a birth injury, the harm is not a set cost or one-time only fine, it is compensation for the ongoing lifetime financial burden faced by the family. Compensatory damages, known as Lifetime Benefits, are intended to return the financial status of the child and the child’s family to what it would be had the impairment or disability not occurred. Compensatory damages are the actual and anticipated expenses that a birth injury likely will cost the family during the child’s lifetime. Calculating lifetime costs involve estimating medical expenses, therapy, surgeries, medications, assistive technologies, adaptive equipment, home and vehicle modifications, pain, suffering, loss of life activities and some out-of-pocket expenses that would not have been incurred had the harm not taken place. Outside contractors, such as life actuaries who specialize in the financial impact of risk and life uncertainties, often are relied upon to formulate fair compensation, which is presented in court by plaintiff’s counsel, or through the retained consultant’s testimony. The jury or judge takes the supplied information under advisement when considering compensatory damage.
• Punitive damages – In some states, and very rarely, the plaintiff is awarded punitive damages. Punitive damages are compensation in excess of actual and anticipated expenses. Punitive damages typically are awarded in cases where the defendant’s actions are determined to be willful or malicious in intent. Punitive damages are awarded more in criminal cases than in civil cases. These damages sometimes are awarded to a family member of the person harmed as a measure of punishment for causing loss of companionship.

Court entered judgment

Once a verdict has been reached, and if it favors the plaintiff, then the court enters a judgment that orders the defendant to pay whatever damages have been awarded. This legally binds the defendant to pay damages. If the defendant does not pay the plaintiff according to the judgment, then the plaintiff may have to pursue a form of collection, such as requesting the courts to garnish the defendant’s wages or forfeit and sell assets and property.

Judgment caps

Medical malpractice and tort reform are heated topics in legislative, medical, and legal forums. Medical malpractice caps refer to statutes, rules, and regulations in some jurisdictions that place a limit on the amount of damages an individual may recover. For instance, some states will:

• Place limits on pain and suffering (non-economic damages)
• Limit attorney fees
• Limit recovery of quantifiable monetary losses (economic damages), including out-of-pocket medical expenses, or past and future wage losses
• Mandate about what a jury can and cannot be instructed regarding the award of damages

States have unique and differing laws

Some states do not have caps on medical malpractice recovery. You should seek the advice of counsel for definitive legal interpretations that may affect a case.

Attorney’s fees and court expenses

Litigation requires a significant commitment of time and energy to properly research, prepare, file, and litigate a medical malpractice complaint. The families who have endured the grueling process to get assistance for their injured children have agreed to a contingency fee structure as it does not require payment until, and if, a successful verdict is achieved.

In this fee structure, a set percentage of the compensation awarded to the plaintiff will be provided to the attorney to cover legal services provided. This is usually calculated after expenses are deducted from the award; however, this varies in accordance with state law.

Most states have guidelines on calculating attorney’s fees under this type of fee agreement. Stern Law, PLLC’s court costs and other additional expenses of legal action usually must be paid by the client. The percentage fee will be computed before or after expenses are deducted from the recovery in accordance with state laws.

Disbursements

Most birth injury cases will likely settle out-of-court, but for those that are successfully litigated, monetary damages are awarded. Funds are sometimes disbursed differently in a settlement which may involve an annuity or future stream of payments, versus a court award for an amount of money. Clients should ask their attorney to clarify the specifics in their case.

When the court approves a settlement, or award, the defendants are required to provide the funds. This is handled in several different ways, and is unique to each individual circumstance.

For an overview of how the disbursement will be handled, the attorney will detail the likely timeframe, the process, and the requirements for obtaining the funds, utilizing the funds, and maintaining records. At any time during the court process, the attorney will be able to provide an overview of the process that he is pursuing on the case.

If a settlement is reached, a client needs to understand that this will be the amount of money that is available to provide for a child, less any attorney’s fees and expenses. Attorneys should explain all of this to a client in detail before a settlement agreement is signed. Parents also should consult with a tax advisor, estate planner, or financial advisor to ensure optimization of the money for the benefit of their child.

Most often, annuities are developed and proposed by the defendant or defendants in settlements, with the coordination of the client’s attorney. The client should discuss the following items with the attorney during the settlement talks or trial process, and again at time of disbursement:

• What is the total amount of the settlement, or award, and how will the funds be disbursed?
• What are the total expenses to be paid immediately from the funds?
• What are the attorney’s fees and how were they calculated?
• Of the remaining funds, how much will be provided in cash? For what purpose?
• Are there any liens on the funds to be received? If so, how will they be paid?
• How much will be placed into an investment vehicle? What is the benefit of doing so? How does this process work in paying bills?
• How are taxes paid on settlements or awards? Are there any ways to benefit or protect the funds through current tax laws?
• How much will a child receive monthly? How should these funds be applied? What are the record-keeping responsibilities?
• What would happen if the tragedy was compounded and your beloved child dies an untimely death? Would the funds still be provided? For how long? To whom? What options do parents have to protect the funds from probate court? Is there a guarantee that the defendant or defendants are still required to pay, and if so, for how long?
• How will the settlement or award affect a child’s ability to qualify for government benefits? Is everything being done to receive and protect funds without jeopardizing government funding?
• Would a child benefit by a constructive or special needs trust?
• For the funds recovered for past expenses incurred, do parents have any obligation to issue the recovered funds to any parties? If so, how and when?

A client may wish to consult with an accountant, tax advisor, and an estate planner to assure awareness of and planning for the tax, estate, and investment opportunities that best secure a child’s future care. These professionals may suggest ways to benefit from tax laws, protect assets, gain protection by investment vehicles, document preferences, and provide for unexpected deviations in a family’s future path.

Ultimately, a parent or guardian will decide which opportunities are best for a family. Some of these decisions should be made before trial, before settlement or award, or at any time that disbursements are being planned.

The party that did not prevail during trial will generally have the opportunity to appeal the verdict or judgment.