When Can Courts Order Genetic Testing in Cerebral Palsy Cases?

Introduction

Hodge Jones & Allen has been delighted to support the National Bobath Cerebral Palsy Centre; a UK charity dedicated to supporting people living with cerebral palsy, neurological conditions & developmental delays recently with Andrew Harrison completing the Royal Parks Half – London, Andrew, Dawn Trelor, Nina Ali and our head of department Agata Usewicz supporting Bobath’s recent open day and our popular Charity Quiz night on 12th October 2023.

In cases where a child has been diagnosed with cerebral palsy, understanding the underlying causes and contributing factors is essential for families seeking answers and justice. While medical experts and legal professionals work together to uncover the truth, there are instances when courts may order genetic testing to determine whether the symptoms of cerebral palsy have a genetic basis. In this post, we will explore the circumstances under which genetic testing may be required by the courts and what this means for families seeking compensation and closure.

Medical negligence, also known as clinical negligence, occurs when healthcare professionals fail to meet the expected standard of care, resulting in harm to the patient. Pursuing a medical negligence claim in England & Wales where genetic causes for the injury suffered are raised can be a complex and challenging process.

The Legal Context

1. What is Medical Negligence?

Medical negligence refers to situations where healthcare professionals, including doctors, nurses, or medical institutions, breach their duty of care towards a patient, leading to harm or injury. Understanding what is medical negligence includes an unreasonable delay in diagnosing your unborn child’s signs of distress; not bringing in more specialist care quickly enough; or failing to start the labour, resuscitation or cooling treatment in time to stop the damage from a lack of oxygen progressing. In some cases, the available timeframe can be short and the clinicians need to be able to recognise the signs of distress quickly.

In cerebral palsy cases, the primary legal avenue is often a medical negligence claim. To establish a medical negligence case, it is crucial to determine whether the condition resulted from a healthcare provider’s failure to meet the standard of care during pregnancy, childbirth, or immediately after birth.

2. Doubt About the Cause:

When there is a dispute or doubt about the cause of cerebral palsy, the courts may intervene. This doubt could arise from the family’s belief that there was a genetic predisposition, complicating the case.

3. How to Claim for Medical Negligence?

Making a successful medical negligence claim involving cerebral palsy requires a thorough understanding of the legal process. When considering how to make a medical negligence claim of this type, the first step is to consult an experienced solicitor specializing in cerebral palsy cases. We will assess the merits of your case and guide you through the complex legal proceedings. Your solicitor will gather medical records, expert opinions, and other relevant evidence to support your claim. It is essential to maintain open communication with your legal team and provide them with all the necessary information to build a strong case on your behalf.

Having sufficient evidentiary support explaining how the lack of oxygen occurred; why it was sub-standard; and how the error has caused your child’s injury to worsen are all essential components when considering how to start a cerebral palsy medical negligence claim. Once your legal team have advised you that these issues are satisfactory, your case is started at court by issuing a claim form and serving this on the Defendant with full details of your case.

Taking into account the Defendant’s counter-arguments and cross-referencing this with the factual and expert evidence each side relies are crucial steps when considering how to prove medical negligence cases such as this, particularly when genetic testing is raised.

When Courts Order Genetic Testing

1. Conflicting Expert Opinions

If there are conflicting opinions among medical experts regarding the cause of cerebral palsy, the court may order genetic testing to provide a conclusive answer.

2. Familial History

If the family has a history of genetic conditions or birth defects that might be linked to cerebral palsy, the court may consider genetic testing.

3. Informed Decision-Making

Courts may order genetic testing to ensure that families have the necessary information to make informed decisions about their legal case and future family planning.

Challenges and Considerations

1. Privacy Concerns

Genetic testing involves sensitive information, and individuals may have concerns about privacy and the potential for misuse of genetic data. It is important for courts to address these concerns.

2. Emotional Impact

Genetic testing can have emotional and psychological implications for the family. Courts should consider the potential emotional toll and provide appropriate support.

The Role of Genetic Counsellors

1. Genetic Counselling

In cases where genetic testing is ordered, genetic counsellors play a crucial role. They help families understand the implications of the testing, provide emotional support, and facilitate informed decision-making.

2. Interpreting Results

Genetic counsellors can assist families in interpreting the results of genetic testing and understanding the potential implications for the case.

How Long Does a Medical Negligence Claim Take?

Raising genetic testing can cause your case to take longer than it otherwise would. Agreeing whether the tests are justified; arranging the tests and attending counselling; and understanding what the results do and do not mean all takes time. The duration of a medical negligence claim can vary depending on several factors, including the complexity of the case, the willingness of the defendant to settle, and the court’s availability. Typically, medical negligence claims involving cerebral palsy take several years to resolve even where genetic causes are not raised.

The process involves thorough investigations, negotiations, and potentially court hearings and using our skill and expertise to balance proper case progression with case preparation are important factors in managing how long do medical negligence claims take. While it is important to seek timely justice, patience is crucial during the legal process, as it allows your legal team to build a compelling case to maximize your chances of a successful outcome.

What is the Average Payout for Medical Negligence?

Determining the average payout for cerebral palsy claims is challenging, as each case is unique, and compensation amounts are tailored to the specific circumstances and extent of the injuries.

In cases involving catastrophic brain injuries of this sort, the potential compensation can be substantial. It makes sense for defendants to try to limit it by finding another cause for these life-changing injuries. The payout may cover medical expenses, ongoing care and rehabilitation costs, loss of earnings, pain and suffering, and other associated damages. Where a young child has suffered life-changing injuries which will affect them for the rest of their lives it can reasonably amount to millions of pounds when daily care costs and adapting their living arrangements to allow them to lead as normal a life as is possible are supported by suitable evidence.

We will work diligently to ensure you receive fair compensation for the physical, emotional, and financial consequences you have endured in order to maximise how much compensation for medical negligence of this type your child receives.

Limitation in Medical Negligence Claims

While pursuing a medical negligence claim can provide a means of seeking justice and financial support, it is important to be aware of the limitations. These include the strict time limits for filing a claim, which is generally three years from the date of injury or from when the injury was reasonably discoverable.

In cerebral palsy cases, whether can you claim for medical negligence after 3 years from the date of the negligent treatment can depend on when the incident occurred and its severity. The limitation date for children does not start to run until they become adults on their 18th birthday. This means that they have until their 21st birthday. Accordingly, the answer to the question “can I claim medical negligence after 20 years?” would be ‘yes’ given the severity of these injuries. In cases involving a very severe brain injury, it may be that your child will sadly never be able to manage their own affairs and so they can bring their case after their 21st birthdays.

In some cases, the effects of the earlier negligence may not become apparent until your child reaches their teens. If so, then if you are wondering can I claim medical negligence after 4 years; after 5 years; or after 10 years (UK), then your child may well be able to rely on their ability to bring a claim by their 21st birthday.

For adults, how long after medical negligence can you claim (UK) is more dependent on establishing when someone in your position would have suspected that they ought to investigate their potential claim. This is called ‘date of knowledge’. If this applies, then the case may be brought within 3 years of that date. If you are unable to manage your own affairs, then you may have an ‘open-ended’ date. Otherwise, you will need to persuade the court to exercise its discretion to allow your case to proceed outside of the usual 3-year limitation period.

Delay in taking legal action may jeopardize your chances of receiving compensation. Additionally, the burden of proof lies with you (as the claimant), meaning you must demonstrate that the healthcare professional’s actions fell below the acceptable standard of care and directly caused your injury.

Conclusion

Genetic testing in cerebral palsy cases can provide clarity and resolution for families seeking answers about the cause of their child’s condition. While it is a complex and sensitive process, the involvement of courts and genetic counsellors aims to ensure that families receive the information they need to make informed decisions and pursue legal action if necessary. Genetic testing can shed light on whether there is a genetic basis for cerebral palsy, ultimately helping families move forward with their lives.

If you are facing such a situation and have questions about genetic testing or legal options, it is advisable to consult with experienced legal professionals and genetic counsellors who can provide guidance tailored to your specific circumstances.
Seeking compensation for a medical negligence cerebral palsy cases can get delayed when the possibility of genetic causes for the symptoms (including a catastrophic brain injury) are raised.

However, with the assistance of a knowledgeable solicitor specializing in medical negligence claims, you can navigate the legal process with confidence.

Remember to act promptly, gather the necessary evidence, and seek expert advice to build a strong case. While the duration of the claim may vary, patience and perseverance are key. By pursuing justice, you can potentially receive the compensation you deserve.

If you would like to speak to one of our medical negligence solicitors specialised in cerebral palsy claims, please call 0808 271 9413 or request a call back online. 

Further reading:  Questions to ask

Here is a list of questions you might want to ask when asked whether you will agree to undergo genetic testing, especially if you have little knowledge of the topic. These questions can help you understand the process and implications of genetic testing:

1. What is Genetic Testing?
   • Can you explain in simple terms what genetic testing is and what it entails?
2. Why Am I Being Recommended for Genetic Testing?
   • What is the specific reason or medical concern that has led to the recommendation for genetic testing?
3. What Genetic Tests Are You Recommending?
   • Can you provide details about the specific genetic tests I will undergo?
4. How is the Genetic Testing Performed?
   • What is the procedure for genetic testing? Will it involve a blood sample, saliva, or another method?
5. Is Genetic Testing Invasive or Painful?
   • Will the testing process be painful or invasive in any way?
6. What Information Will Genetic Testing Provide?
   • What kind of information or insights will the genetic testing provide about my condition or health?
7. What Are the Possible Outcomes of the Test Results?
   • What are the potential results of the genetic testing, and how do they impact my medical condition?
8. How Accurate Are Genetic Test Results?
   • Can you explain the reliability and accuracy of genetic test results?
9. What Are the Risks or Side Effects of Genetic Testing?
   • Are there any potential risks or side effects associated with the testing process?
10. How Long Does It Take to Receive Test Results?
    • What is the typical timeframe for receiving the genetic test results?
11. What Happens After I Get the Test Results?
    • How will the results be communicated to me, and what steps will be taken depending on the outcome?
12. Can You Explain the Implications of a Positive Result?
    • If the test results are positive for a genetic condition, what does this mean for my health and future?
13. What Does a Negative Result Indicate?
    • If the test results are negative, what does this mean in terms of my condition or potential genetic risks?
14. Will My Genetic Information Be Kept Confidential?
    • How is my genetic information handled, and what measures are in place to ensure its confidentiality?
15. Can You Provide Genetic Counseling or Support?
    • Do you offer genetic counseling or emotional support to help me understand and cope with the test results?
16. What Are the Costs of Genetic Testing?
    • How much does genetic testing typically cost, and does insurance cover it?
17.  Are There Any Alternative Tests or Options?
    • Are there alternative tests or approaches that can provide similar information, and should I consider them?
18. Can I Discuss the Test Results with a Genetic Counselor?
    • Can I consult with a genetic counselor to help me better understand the results and their implications?
19. What Are the Family Implications?
    • How might the test results impact my family members, and should I inform them of the results?
20. Are There Any Ethical or Legal Considerations?
    • Are there ethical or legal aspects of genetic testing that I should be aware of?

These questions can serve as a starting point for your discussion with your lawyer, healthcare provider or genetic counsellor about genetic testing. It is important for clients and patients to have a clear understanding of the process, its implications, and what to expect before proceeding with genetic testing.