Infertility can be a shocking side effect of many types of personal injury. Whether as a consequence of direct physical injury, or due to necessary courses of treatment, infertility may be a significant contributing factor in a person’s post-injury recovery. Someone who was planning to have children and no longer can, or who must now go through expensive fertility treatments to do so, may have the option of adding those issues to a list of demands in litigation.
Infertility as a form of damages
In a personal injury lawsuit, the injured plaintiff demands compensation for the damages
associated with the injury that can be attributed to the defendant’s bad behavior. Plaintiffs typically base their claims on a range of well understood things like medical bills, property damage, and lost wages. A lawsuit may also seek recovery for so-called noneconomic damages, like a plaintiff’s suffering. Infertility can be a factor in both types of damages.
This is because infertility can have elements that are relatively easy or relatively difficult to quantify. On the one hand are cases where an injury forces the plaintiff to undergo expensive fertility treatments or psychological therapy to overcome emotional trauma specifically stemming from loss of fertility. The costs of such treatments have clear sources. On the other hand, the plaintiff’s emotional suffering may have an abstract dimension as well. The costs of losing the ability to have a child can in many ways be more abstract than concrete.
The problems of proof
To receive compensation for any type of damages a plaintiff in a personal injury case must be able to prove the damages with reasonable certainty. Infertility is an example of an injury that raises challenges of proof for a plaintiff. There are several reasons why this can be so, including these:
- Causation. A plaintiff’s fertility problems may have more than one cause. In cases where a clear line can’t be drawn between the plaintiff’s infertility and the defendant’s negligence, the plaintiff will need additional resources, such as the testimony of a medical expert. Likewise, a defendant likely will try to raise doubts about whether the plaintiff has proven the case, for example by asking for evidence that the plaintiff had no fertility problems prior to the injury.
- Emotional harm is harder to prove. For plaintiffs who seek damages for suffering of any kind, issues of proof can raise extra challenges. Infertility may raise especially difficult questions, as plaintiffs may need to “prove” their interest in having children and how infertility has affected them. A plaintiff’s attorney can take steps to protect the client from overzealous defense lawyers, but ultimately the client will need to decide whether pursuing these sorts of damages is worth the emotional cost.
The law firm of Greenman Goldberg Raby Martinez represents clients in the Las Vegas area in personal injury and auto accident litigation. We are proud of our firm’s long history of providing clients with complete, personal service. For a free attorney consultation about your case, call us today at 702-388-4476 or contact us through our website
In every personal injury case the plaintiff must be able to prove that the defendant’s actions (or inactions) was the legal (or “proximate”) cause of the plaintiff’s injuries. Causation is always
an issue, even if it is relatively simple. Not every case is as straightforward as “A struck B and B was hurt.”
When connecting the dots from the defendant’s negligence to the plaintiff’s injury is not easy, the plaintiff’s attorneys must focus on establishing a strong case for causation. Tracing the consequences of a defendant’s negligence can be difficult for a number of reasons. That is because causation is complicated by a number of related factors:
- Time. When time passes between a defendant’s negligent action and the resulting injury, showing causation can be more difficult. This is partly because important evidence can be lost to time, as physical evidence can be destroyed, memories can fade, and important witnesses cease to be available (for example, if a key employee of a business defendant is no longer working there).
- Intervening causes. For a defendant to be held liable for an injury there must not be an intervening act of negligence that could also have caused the injury. Sometimes the plaintiff’s own negligence may have contributed to some or all of the damages suffered by the plaintiff. Other times another person’s wrongful actions were the real cause of the injury, but that person hasn’t been identified. The more time that has passed, the more likely the defendant will argue for intervening causes.
- Scientific proof. Causation can require a highly technical analysis. The analysis may be of mechanical evidence, such as the failure of a product’s components. Or it may be medical, as in cases involving cancer or other illnesses that are slow to develop. When specialized knowledge is required to prove causation, the plaintiff’s team must make provision for it in their case if they hope to prevail.
Plaintiffs faced with complex causation challenges can overcome them using several approaches. The first is simply the process of uncovering evidence through discovery. In discovery both sides in the litigation ask for documents and conduct interviews (depositions) of individuals with knowledge about the facts of the case. Discovery often uncovers important facts that can be useful for establishing causation where it might otherwise remain hidden.
In many cases an expert witness can help the plaintiff provide technical analysis of the causal elements related to an injury. Experts are often invaluable in assisting judges and juries as they examine issues that require more than a commonsense understanding of the facts. Experts are hired by the plaintiff’s attorneys and their fees are typically taken out of the final award, but because their input can be decisive, they are often worth the expense.
Proving causation is at the core of a personal injury attorney’s practice. Experienced attorneys know how to use the tools at their disposal to craft winning arguments. For more than 45 years the law firm of Greenman Goldberg Raby Martinez has represented Las Vegas clients in personal injury cases. For a free attorney consultation about your case call us at 702-388-4476 or contact us through our site