Could there be a more devastating loss than the death of a child? In my experience with grieving parents, the loss invades a parent’s waking thoughts, and disturbs sleep, forever, with only brief respites of distraction. Time helps scar over the wound, but never heals it. And, perhaps amazingly, Pennsylvania law does not permit a parent to recover damages for this harm if the death is caused by the careless acts of another.
So what damages are potentially recoverable?
Pennsylvania law allows the recovery of damages to the estate and survivors of the child as if the deceased child would have survived. Two statutes, the Survival Act and the Wrongful Death statutes, dictate the harms and losses recoverable.
Losses Recoverable Under the Survival Act Statute:
- Pain & Suffering – An amount of money to compensate for the mental and physical pain, suffering, inconvenience and loss of life’s pleasures that the child endured from the moment of injury to the moment of death.
- Expected Lifetime Earned Income – The net amount the child would have earned from the date the child would be expected to enter the workforce until the date the child would die naturally.
Losses Recoverable Under the Wrongful Death Statute:
- Expenses – An amount to cover all hospital, medical, funeral, burial and estate administration expenses;
- The monetary value of the services, society and comfort the child would have given to his/her family. For example, Would it be expected that the child would have provided care for his/her infirm parents later in life?
Pain and suffering damages would be established by accumulating all medical records of treatment including the autopsy, speaking with eye-witnesses and family members, and sharing that information with a medical expert able to describe what the child physically felt before dying.
In order to ensure just compensation for the child’s net lifetime earnings, the trial lawyer must accumulate all pediatrician and school records, not only of the deceased child but any siblings and to fully understand the education level and work history of the parents, all to prove what educational level and career the child was likely to achieve.
To help the jury understand the monetary value of services, society and comfort the family has lost, the trial lawyer would develop a complete understanding of the religious, social and generational background of the family to assist a psychologist, for example, to explain what level of support the family could have expected to receive over the child’s lifetime if the child had not died.
Our hope at Baratta Russell & Baratta is that our work will allow the family to appropriately grieve and give the family the time and space to a find a “new normal”, while we take on the duty to ensure the picture of a child’s life is properly painted in the courtroom.