Kensley Kirby, a five year old that went for treatment at Family Medical Clinic on Hampton Road for a broken arm, ended up dying as a result of an overdose of Lidocaine, reports the Atlanta Journal Constitution.
Although the incident occurred in June, confirmation about the cause of death only came out now, after the Henry County Coroner's office finished its inquiry.
&"They went from picking the color of the cast with their daughter to basically being with her as she died," the family's lawyer, Pete Law, told the AJC.
As a result, Kensley Kirby's family is now considering filing a lawsuit, reports WSB Radio.
An accidental death like this one always leaves questions regarding how it could have been prevented, and how future accidents can be prevented. Much of that information may not come out until legal proceedings occur.
The kind of lawsuit the family might file would be a wrongful death lawsuit. Such a lawsuit is filed by the close family of the victim, since a dead person cannot bring a claim.
One of the hardest parts of a wrongful death lawsuit is the determination of damages. How is a court supposed to value a person? Usually the way to go is through a person's lost earning capacity. But if the person that got killed was very elderly, or as is the case here, a child?
When a child dies, damages are usually determined by:
- The age, sex, life expectancy, work expectancy, state of health, and habits of the child;
- The child's earning potential;
- The relationship of the survivors to the child;
- The health, age, and circumstances of those demanding damages.
Clearly, much of this inquiry involves speculation, and the younger a child is at the time of death, the harder it becomes to determine financial loss to the parents. A jury may consider what the child would have contributed to the parents' support, but this cannot be pure guesswork. Juries often use life expectancy charts as a starting point for calculations. Rules against jury speculation do not necessarily limit parents to small recoveries, but courts generally affirm small awards for the deaths of children.
Of course no amount of money can truly compensate for the loss of a child, but is the best a civil lawsuit has to offer.