Capelouto V. Kaiser Foundation Hospitals

In this case we consider the right of an infant to recover damages for the pain and suffering incidental to an illness contracted as a result of medical malpractice. As we explain below, an infant may recover damages for pain and suffering on the same basis as an adult. Indeed, lay testimony, as well as expert testimony, may support such an award. Moreover, in certain cases the trier of fact may infer pain and suffering from the nature of the injury alone. In accordance with these principles we hold that in the instant case an instruction to the jury foreclosing compensation to the infant for pain and suffering worked both error and prejudice, compelling the order of a new trial.