The birth of a new baby is a very special time for parents and indeed the whole family. If things go wrong either during the pregnancy or birth, the effects can be devastating.
If either the baby or the mother suffers an injury due to medical negligence then you will be entitled to make a claim for compensation. Some injuries that can be suffered are listed below:
The most common type of birth injury is Cerebral Palsy.
Cerebral palsy is a condition that can result from a baby being starved of oxygen during their delivery. A lack of sufficient oxygen causes damage to the brain and may result in the baby having permanent physical or intellectual (often both) disabilities. Currently it is thought that around 20% of cerebral palsy cases result from poor management during the delivery period.
Often doctors might refer to a new born baby’s brain injury as Hypoxic Ischemic Encephalopathy (HIE).
Cerebral palsy injuries are devastating and impact not only the child but also the parents and the rest of the family. Living with/caring for a child with a brain injury can be very challenging especially when the child needs 24 hour care, specialist accommodation, equipment and essential therapies. Securing funds to pay for the best level of care after traumatic birth injuries is vital to help rebuild lives.
We have extensive experience and expertise in representing families throughout the UK. Where possible we will try and secure an early admission of liability which will lead to an early interim payment. This interim payment will be used to pay for care, rehabilitation, equipment and new accommodation, if required or adapted accommodation if the family’s current home requires this.
A baby’s brain injury can be due to a number of factors;
Hodge Jones Allen will obtain the medical records for the mother and baby. We will assess these in house – we are fortunate in that many of our solicitors are also medically qualified.
If we think the case has prospects of success then we will take a detailed statement from you and any other witnesses who may have been present at the birth.
We will then instruct experts to assess the claim. The types of experts required vary from case to case but usually the disciplines of experts might be:
Expert reports will establish if there is a case that can be pursued.
Compensation for cerebral palsy is made up of many different components.
General damages – are awarded for the brain injury itself and the communication and mobility problems that may result from this. The maximum award for general damages according to the Judicial College guidelines is £337,700. This is awarded for severe brain injury or tetraplegia.
FAMILIES ARE ALSO ENTITLED TO CLAIM FOR THE FOLLOWING:
Care from mother and father
This is sometimes called ‘gratuitous care’. The parents of a child with cerebral palsy are entitled to claim for the additional care that their child needs due to the Defendant’s negligence. This is often a very substantial sum because it includes both past and future care. We will assess each case individually as no two Claimants are ever in the same situation. We will calculate the support that you child has received and will required in the future. This claim can be made in addition to a claim for paid for, professional carers (see below).
Although the mother and father often want to be hands on carers for their child, the reality is that they will need assistance from paid carers. Depending on the level of disability, a team of carers will often be needed, perhaps working on a rota basis. Carers employed on a rota on day and night shifts are of course a very considerable cost. This part of the case is usually of the highest value. It is an area for dispute between the experts and need careful assessment by the lawyers instructed by the Claimant.
Children with cerebral palsy may be wheelchair dependent some or all of the time. As such they will need to claim compensation for new alternative accommodation. Or it may that that their current accommodation is suitable provided it is adapted. A claim for new accommodation is often the first issue that needs to be addressed if negligence is admitted by the Defendant. Often we would seek an interim payment at an early stage to assist the family.
Children with cerebral palsy need intensive physiotherapy input. This may be a need they have when they are young of the claim involve a lifelong requirement for physio. The Claimant is entitled to claim for such costs in the private sector and does not have to rely on the limited physiotherapy which might be offered by the NHS.
Occupational therapists advise and assist Claimants with everyday activities – such as toileting issues. They can develop strategies to assist with independence. This is usually claimed for on a private basis so that the family do not have to rely on the NHS.
Speech and language therapy
Speech and language therapy costs can be claimed by the Claimant. We recognise that Communication issues can be very frustrating for the Claimant and their family. Private therapy can be claimed for as part of the compensation package so it can be tailored to suit your family’s needs.
Many families find that they need help in managing the care of their child. They need the services of a Case Manager. A case manager will be responsible for coordinating the carers, physiotherapists, occupational therapists and speech and language therapists. They can make all the necessary arrangements in terms of managing recruitment of staff, managing payroll and dealing with HR issues. They provide an incredibly useful service to both the parents and staff and act as a hub to circulate information.
Assistive technology / information technology
Some children or adults with cerebral palsy, especially those with communication issues, can hugely benefit from assistive technology. Assistive technology can let a child or adult control their environment with the touch of button on a keypad. It can bring a degree of independence which was not otherwise possible. As part of the claims process we would consider whether a claim can be made for such technology.
Loss of earnings
Mild cerebral palsy may limit the job opportunities available to the Claimant. A more severe form of cerebral palsy may mean that the Claimant will never be able to work. The Claimant is entitled to claim for their loss of earnings. In some cases the court will consider the occupations of the mother, father or siblings to establish what the Claimant’s likely earnings may have been. Future wage losses can be claimed from 18 to retirement age so this aspect of the claim can be substantial.
Aids and Equipment
A claim can be made for mobility aids such as wheelchairs or other specialist equipment. Again, it is recognised that the NHS provision is limited and the Claimant is entitled to claim for Aids and Equipment costs on a private basis.
Many families find that the NHS is limited in what it can offer their child. This may be due to geographical or budgetary problem. Or maybe the therapy they really want for their child has a long waiting list. If that is the case then the family can make a claim for the costs of such therapy in the private sector. This might be any kind of therapy – from orthopaedic surgery to sensory therapies.
Claimants will often need a specialist vehicle such a Volkswagen Caravanelle, a Mercedes Vito or other similar type of vehicle. The vehicle may well need to be adapted to the needs of the Claimant. When submitting the compensation case, Hodge Jones Allen will include a claim for the need to replace the vehicle on a regular basis over the Claimant’s lifetime.
Costs of financial management
At the conclusion of a successful cerebral palsy case the compensation will be paid into a bank account to be managed by a professional Trustee – called a Deputy. The role of the Deputy is to manage the compensation payment appropriately, advise and support the family and to prepare yearly accounts which are reviewed by the Court of Protection. The Court of Protection is a specialist court which appoints deputies to look after the financial affairs and welfare of people who are mentally incapacitated.
This is required to ensure that the Claimant’s finances are carefully and appropriately managed.
Hodge Jones and Allen’s Court of Protection Deputyship Solicitors can assist with management of the Claimant’s compensation award. The costs of managing the compensation form part of the claim – so there is no additional cost to the Claimant.
How are the damages paid?
Cerebral palsy compensation claims are often paid for by the NHS on a lump sum and periodical payment basis.
The lump sum is usually to cover past costs, general damages and accommodation costs (the costs of buying and adapting a house).
The future costs that the family will incur are often paid by way of periodical payments (sometimes called Periodical Payment Order or PPO). The PPO is usually paid once per year and the amount of the payment is designed to cover the Claimant entire financial needs – for carers, physiotherapists, case managers and other therapists – for the next twelve months.
The amount of the periodical payment is linked to wage inflation so the sum paid to the Claimant increases each year. The PPO will remain in force for the life of the Claimant.
Hodge Jones Allen acted for child X, a 12-year-old boy who was injured due to mismanagement at birth. In the minutes immediately prior to his birth, his mother’s labour was complicated by shoulder dystocia. His case was that urgent assistance ought to have been summoned by the midwives within 2 minutes of delivery of the head. If X had been delivered earlier, he would have been in a better condition and would have avoided suffering from moderately severe dyskinetic cerebral palsy. His life expectancy was reduced as a result. X’s claim was compromised with X and staged periodic payments of £33,200 each year increasing to £104,000 per annum when he became an adult. His award was valued at the equivalent of £3.4 million if capitalised.
Baby E was starved of oxygen as she was being delivered at King’s College Hospital and she now has severe cerebral palsy.
During a contested trial at the High Court, the hospital accepted liability for E’s injuries but disputed some of the damages claimed.
The trial judge said: “I had a strong sense of an energetic, inquisitive mind trapped in a body that will not do what Eva would wish it could do.” A spokesperson for King’s College Hospital said: “We are pleased compensation for Eva and her family has been confirmed. We would like to apologise again for the care she received in 2007. We have learned important lessons from this case, which we have used to improve the services we provide for mothers-to-be coming to King’s.”
Child E’s solicitor, Agata Usewicz, Partner and a Head of Medical Negligence team, said: “No amount of money will ever compensate for the injuries Eva has sustained, but this award will ensure that she is provided with the care she needs for the rest of her life, and has the opportunity to live her life to the fullest. The judgment brings to an end six years of the family’s fight for justice.”
Baby H’s mother had previously had a caesarean section. Mrs H was admitted into hospital and was given the drug prostin to induce her labour. The drug caused her uterus to rupture because she had delivered her first son by caesarean section, something that increased the risk of complications four-fold.
Mrs H’s scan showed that her baby’s heartbeat was slowing down to a dangerously low rate, but she had to wait another 40 minutes for a specialist doctor to leave surgery before she was taken in for an emergency caesarean.
Sadly the operation was performed too late to prevent Baby H suffering a severe brain injury. After many months of hospital treatment he passed away 14 months after his birth. An out of court settlement was achieved in this strongly contested case.
Our highly experienced team of specialist clinical negligence lawyers are here to assist and to advise. They will advise you comprehensively about the merits of your claim, funding and ensure that you and your family get the best possible results.
The majority of our cerebral palsy cases are funded by Legal Aid. Other cases are funded by way of a conditional fee agreement, more commonly known as a no win no fee agreement. This means there is no financial risk to you.
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