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.