Injured Kids, Injured Parents and Tort Law

When a child suffers a long-term or permanent disability because of someone’s negligent or even intentional act, the child is not the only one whose life changes. The child’s special health care needs become part of the daily caregiving routines of the parents. Those needs might include, for example, taking the child to medical appointments, interacting with health care providers, delivering medical and other therapies, working with a school to develop an educational plan, advocating with social service agencies, etc. On average, a family caregiver for a special needs child spends nearly 30 hours a week caring for the child in ways that other parents don’t confront. Most of the caregiving parents are mothers, and most of them either leave work altogether or reduce their hours of work significantly. Other consequences that caregiving parents face include mental and physical health problems, social isolation, and the deterioration of family relationships.

Let’s say the child’s injuries result from a car accident or from medical malpractice. Does the law require the driver or the doctor to pay damages to the parents for the changes in their lives? Damages for direct costs, such as medical bills, are always allowed. When caregiving reduces the parent’s earning capacity, some states recognize claims for the parent’s lost wages. In others states, responsibility is limited to the cost of employing an unskilled medical aide. In the last group, the tortfeasor owes nothing to the parents.

I call the three approaches “20/20,” astigmatism, and blindness. “20/20” applies to situations where the child is viewed realistically, that is, as a person who, by reason of age and experience, is dependent on parents for direct care and for interacting with the outside world. Law and policy suffer from astigmatism when the child’s connection and dependency are acknowledged, but the consequences that parents face are blurred. (I’ve got astigmatism and can testify to the blurriness!) Blindness is what happens when, as one court argues, parents are responsible for their kids, no matter what – no sharing of costs is appropriate, regardless of the fact that the child would not need unusual caregiving but for the tortious injury.

In my current work, I’m trying to explain why many courts suffer from blindness or astigmatism. One reason is gender. Caregiving is considered women’s work, and women should do it with happiness and generosity, so their losses should not be monetized. If any loss is acknowledged, it should only be those losses that a man might also experience, that is, paying someone else to do the caregiving. Since, for reasons of both gender and race, we pay very little for caregiving jobs, it makes sense to compensate the caregiving parent (i.e., the mother) at the same small rate. Another reason is a lack of foreseeability – perhaps tortfeasors shouldn’t be expected to anticipate that injuring a child would affect a parent’s life, so it isn’t fair to make them pay damages for that harm. This perspective is consistent with a general lack of awareness about the lives of people with disabilities and the lives of their families. That degree of ignorance may have grown over the last half century in light of radical changes in social, legal, and cultural practices around health care generally and disabled kids in particular. Family caregivers now deliver much more medical care at home, for example, and the medical regimes of their special needs children are often more complex. Also, happily, more disabled children are living at home rather than in institutions, and many more are surviving into adulthood and beyond. At the same time, more mothers are now working outside the home. Many parents raising special needs children are doing it alone, so, if a mother has to meet the unusual demands of caring for a child with special needs, her chances of losing her job and falling into poverty increase. A third reason may be horizontal equity. The unusual caregiving demands of special needs children depend on the child’s characteristics, not on whether the source of the child’s special needs is a tort. Covering the lost wages of parents of tortiously-injured children puts those families at an economic advantage compared to families of other special needs children.

I look forward to hearing your thoughts on which of the three rules seems to make the most sense, and why.


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6 Responses

  1. Orin Kerr says:

    I don’t have a comment on the substance, but I wonder if you would consider changing the labels you are using. By calling the first approach “20/20,” the second “astigmatism,” and the third “blindness,” you are suggesting that you see the first position as the only one that a thinking person could adopt. If I understand the argument correctly, that framing leads you to ask, in effect, “how could people be so clueless as to not adopt the correct view?” That approach is going to turn off any readers who don’t already agree with you, which I think is likely to limit the readership (and therefore impact) of your paper.

    I think you might reach a broader audience if you used neutral labels for the three positions and then argued that the first position is the best one. You would end up making the same arguments:t he argument “people who have wrong belief X instead of correct belief Y do so because they do not realize fact Z” can be readily recast as “Belief Y is superior to belief X because of fact Z.” But I suspect the different framing might help the paper reach a broader audience.

  2. Jimbino says:

    Apparently, there is no reason a thoughtful non-breeder would EVER engage in an activity in which children are allowed to participate, unless the the parents are required to sign waivers.

    For that reason, the single and childfree might find it appropriate to hang out in bars and foreign countries, attend art museums featuring nudes or strip clubs, climb Everest or scuba dive.

    The childfree, already severely burdened by their forced support of public mis-education, are apparently also being placed at exceptional financial risk for injury to one of the brats.

  3. Sykes Five says:

    I agree with Professor Kerr that, based on your framing, it’s hard to avoid the conclusion that the “20/20” view is the correct one. So I can’t really imagine a response to your question about which rule is best.

    A better question might be what reason for the rules other than “20/20” is most convincing. I am not sure if the reasons you present are your own inventions or if you have read them in scholarly commentary or decisional law.

    With my ignorance thus established, I wonder if there is another possibility: the message about the value of life sent by tort awards.

    Consider that the total cost of care for a profoundly disabled child may exceed the amount that would have been awarded for wrongful death had the child died. Perhaps the a reasonable wrongful death award would have been a million dollars but the cost of medical care, therapy, missed parental work, etc. is several millions of dollars.

    But this may be taken as a suggestion that the child’s injury is a fate worse than death, or that the parents are suffering more by having to raise an injured child than burying a dead one, or even that the tortfeasor would have been better off had the child died. (Surely, the last thing we want is some careless driver–or his insurer–lamenting that he injured rather than killed a child!)

    These all seem like debatable propositions and touch upon other issues of societal concern about which there is no consensus.

  4. Horspool says:

    Although I am persuaded, already, that damages for injuring a minor should include compensation for the extra burdens thereby placed upon her guardians, I cannot allow your casual and tendentious statement “Since, for reasons of both gender and race, we pay very little for caregiving jobs…” to pass unremarked.

    Perhaps you were ill the day the rest of the students studied basic economics, but the chief reason low-skilled labor is not highly paid is because many workers compete to do it. The fewer the special qualifications for any job,* the less it pays. This has approximately nothing to do with the gender,** and very little to do with the race,*** of low-skilled workers.

    *Of course there are sinecures which offer high pay for little work– but they do demand special qualifications, such as being a close relative of some plutocrat.

    **Nonsense from “comparable worth” activists aside, the reason low-skilled male-dominated jobs like ditch-digger pay more than low-skilled female-dominated jobs like day-care assistant is that the former do have tougher qualifications (brute strength) and worse working conditions (likelihood of injury) so must pay more to compete for workers.

    ***Average academic achievement varies by race so different proportions of workers of various races fall into the low-skilled category, but low-skilled jobs command low wages everywhere regardless of the local racial mix– so there is no reason to think that racism causes low wages for low-skilled work.

  5. Jim D says:

    I completely agree that compensations for a child’s parents should be included. But I also have to agree about the “Since, for reasons of both gender and race, we pay very little for caregiving jobs…” Yes there is still some sexism in the world but caregiving jobs salaries have nothing to do with gender or race.

  6. Glenn says:

    As a personal injury lawyer Dallas Tx,I think there is a need of little amendments concerning child injury laws.It’s way too broad.. So what we have to do is to specify certain aspects that can give the most assurance of a child’s welfare as well as to the parents.