Calculating Damages in Negligence Lawsuits against Departments of Human Services

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Governments, be they city, county, state, tribal or federal, administer a wide range of social welfare services and have a duty to properly discharge those obligations. Professionals hired by government agencies, regardless of the tasks they do, are expected to exercise a reasonable degree of skill and care in their work. When a department of human services is legally negligent in delivering or overseeing those services, our tort system is designed in some cases to allow victims to make claims against it. Of course, negligence is a technical legal concept; not every failure or error made by a department worker will be negligent.

There are perhaps as many examples of departmental negligence as there are different types of services offered. A few examples can be gleaned from the headlines:

How often do human services departments get sued for negligence? The number is unknown. Howard Talenfeld, a Florida-based attorney who focuses his practice on protecting the rights of vulnerable children, civil rights cases, personal injury cases and systemic reform litigation, suggests that “many cases have been settled confidentially to avoid the negative publicity concerning defendants who want to stay off the public radar and avoid governmental and public scrutiny concerning their dangerous child welfare practices.”

Damages cover the consequences of negligence. The damage award equation is more complicated than can possibly be addressed in this brief note. Not all acts of negligence can easily be valued in terms of money. However, since compensation can be given only in money, a dollar value must be calculated.

Naturally, high value cases attract media interest, and such cases may lead to misunderstanding as to how damages are customarily calculated. Generally, the amount of compensation awarded depends upon the nature and severity of the responsible party’s negligence and the damages sustained. Some specific elements that are often taken in account are:

  • The nature and severity of the injury
  • Time duration of any physical or emotional suffering
  • Time duration and cost of treatment and rehabilitation
  • The nature of the negligence
  • Cost of essential lifestyle changes
  • Present and future income loss

When a department’s negligence results in death, the compensable damages will often depend on state law. Many states distinguish between wrongful death and survivorship damages. Daryl L. Zaslow, a New Jersey attorney who frequently handles claims against state agencies responsible for protecting children explains: “Under New Jersey law, when a person dies as a result of the negligence of a state agency there are two potential causes of action that may be brought.

The first is called a survivorship action. The administrator as plaintiff seeks damages for the decedent’s hospital and medical expenses, loss of earnings as well as any disability and impairment, loss of enjoyment, and pain and suffering which the decedent sustained between the accident or negligent act(s) and his/her death. Legally, the victim is entitled to recover the damages which the decedent sustained during this period of time. The recovery then passes via the laws of intestacy.”

The second cause of action is a wrongful death claim. Under this law, the plaintiff brings a lawsuit as the representative of the survivors of the decedent and seeks to recover damages from the defendant, contending that the defendant department’s fault was responsible for the death of the decedent. The money damages sought on behalf of the survivors of the decedent represent the actual financial loss which the plaintiff contends has been and will in the future be suffered by the survivors due to the death of the decedent.

This claim for pecuniary or financial loss is distinguished from any physical injuries or suffering that may have been sustained by the decedent, such as any pain and suffering or disability sustained by the decedent. Zaslow notes that “in most cases against human services agencies that fail to protect children and result in death, the survivorship damages exponentially exceed the wrongful death damages due to the age of the decedent and the family dynamics which necessitated the involvement of social welfare.”

There is no exact science in calculating damages. It may be relatively simple for some claims. For more complex ones, the plaintiff’s attorneys and the department’s attorneys will retain experts ranging from doctors, statisticians, actuaries, psychologists, social workers, and accountants—all whom will opine on a multitude of factors that will need to be considered.

Daniel Pollack, MSSA (MSW), JD is Professor, Wurzweiler School of Social Work, Yeshiva University, New York City, and is a frequent expert witness in child welfare cases. E-mail: dpollack@yu.edu; 212-960-0836. This article originally appeared in Policy & Practice, 71(5), 28–29.

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