Some time ago I was asked by a lawyer, to help him prepare the damages in a malpractice child case. It involved a delivery where the child had a brachial plexus injury. His concern was presenting the damage case to the jury. This was my advice about how I generally consider damages in a personal injury case.

I told him the first thing he should do is rid your mind or consideration of any other verdicts in similar cases involving an injury like this. You cannot compare one case to another no matter if the injuries are identical, because people are unique and not identical. Lawyers, venues and juries are not alike. There is no way to make any relevant comparison in that manner. Worse, if you allow your mind to be confined within the verdict and settlement ranges of  other cases, you won’t be able to correctly evaluate your case. You need to totally disengage any consideration about the results in other cases and look upon your case as unique and original.

I would approach damages in a role reversal manner starting with the now and thinking ahead through full life expectancy. I would review the impact of the injury at each age and each stage of life as it practically has consequences in daily life.  Think about the daily activities of the child. Eating, dressing, running, playing. When you use the swing at the playground you hold the rope with two hands. All of the activities involve two hands. Spend some quality time actually looking at children of that age play and go through activities. Look at the physical requirements normal children have for all of their daytime activities. Consider all the normal activities involving your client with the non functioning arm.

Now think ahead. Think to the first year the child goes to school and repeat the process of visualizing all of the activities involved in their life. Think about grade school and  meeting new children for the first time and the normal curiosity of children about things like an injured arm. What about playing with children on the school ground. Jumping rope, holding a baseball bat and other two handed activities. The injury impacts simple things like caring a lunch pail and schoolbooks. Advance your grade by grade visualization as they get older and consider the changing challenges daily encountered. Continue through grade school ,high school and college. Consider all of the activities and social relationships that will occur year by year as the child ages with this disability.

Consider dating, marriage, having children of his own and his ability to be fully active with his children. Sports is a particularly difficult situation since almost all sports involve the use of both hands. He will be marked as “different” no matter what. Remember, the damages involve practical considerations rather than medical. Medical opinions regarding degree of disability or other technical issues are irrelevant when we consider the real-world impact of functioning day to day. It is the daily relationships which play a role in self-image as well as social relationships.

You should be prepared to explain through the child’s perspective, how, at each stage of life, this injury has a direct impact in a practical way on day to day activities. Some might suggest that “the child will get used to the disability.” Others will suggest that” time heals all wounds” and  the child will eventually adjust. Some will claim that the child is lucky it happened as a child because they will soon be over it. Perhaps someone will note that veterans coming home from war have worse injuries and they seem to be able to function. Remember that you can’t “get used to” something which is brought to your attention repeatedly every time you deal with someone new.  These issues have to be dealt with in jury selection as well as in trial. It’s worth reminding jurors that an obvious disability like this is like having a birthmark on their face. No one “gets over it” because it’s part of their self-image which they are conscious of every time there is a new meeting or activity involving two functioning arms and hands. The child may learn to put on a good face, but deep inside it’s an open wound. They might learn to get around the injury from a functional standpoint but they will never learn to get around it from a self-image standpoint.

The damages are not primarily physical limitations. The damages are primarily in  an area no doctor can measure and no test can really evaluate. That’s the area of mental outlook and self-image. Keep in mind that unlike an amputation where a limit is gone and a prosthesis has been substituted to look like an arm. In this situation the arm is a flag that flops around in a noticeable way.

There is nothing profound in these thoughts, but perhaps something here will be of use in a case you have.

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