Medical negligence claims
The following information about clinical negligence has been provided by Digby Brown Solicitors.
Cerebral palsy can occur before, during or after birth or in early childhood. It can be difficult in many cases for doctors to give an exact reason why part of a baby’s brain has been injured or has failed to develop.
It is generally accepted that causes of cerebral palsy can be multiple and complex. Some of the main causes are: –
- Oxygen deprivation to the brain
- Infection during pregnancy
- Abnormal brain development
- Restricted uterine growth
- Neonatal stroke
- Blood abnormalities
- Genetic factors
If something goes wrong during the birth due to the negligence of a midwife or doctor then you are entitled to ask what happened, why it happened and whether this was the cause of the cerebral palsy.
For many years, Digby Brown Solicitors has helped parents, children and families affected by cerebral palsy as a result of NHS failings. The dedicated clinical negligence team works with people from all over Scotland and is led by Partner Ruth Kelliher.
How do I start the process of getting answers and help?
Parents and families often have many questions and sometimes getting those answers from the NHS can be difficult. You may want to consider making a complaint to the hospital following the NHS Scotland Complaints procedure. This can be found on the website of the Health Board which provided the maternity care. A formal complaint can be helpful if you are seeking an explanation for some aspect of your treatment or an apology. You may wish to discuss the questions you have with your general practitioner and seek their assistance and support.
Once you have the health board’s response to your complaint you can then take this to a legal advisor, like Ruth and her team at Digby Brown, and they will be able to review the findings and offer you suitable advice which relates precisely to your circumstances – this will include guidance on the strength of a possible no win, no fee medical negligence claim.
Cerebral palsy claims are complex, and it is important to seek specialist legal advice from solicitors with a proven track record in this field. Accordingly, choosing a specialist solicitor is an important first step and may be the most important step you will take. Many solicitors will offer free initial legal advice to help you decide on the best way forward.
Pursuing a legal claim
Some people don’t want to make a cerebral palsy claim against the NHS, but the reality is that a civil claim may be the best, and sometimes only, way for parents to get the answers they want.
Instructing specialist solicitors is crucial. The claim process can mean you get the right answers to the right questions – and then go on to use those answers to access support, help and services you might not have otherwise been able to (or even knew you could).
Funding
Before engaging in any legal process, you must consider how the case will be funded and it is important that your solicitor explains fully how this process will work for the duration of the case, not just the initial steps. There are limited options for fully funding a case however some solicitors (although not many) will act on a speculative or “no win no fee” basis and can provide funding for the claim to progress.
How long do I have to pursue a claim for my child?
In Scotland, a child has until their 19th birthday to pursue a personal injury claim, and this is also true for children affected by cerebral palsy. Generally, the sooner a claim is pursued the better. Any question of negligence is judged against the standards applying at the time of the birth and it is necessary to find experts with relevant experience as at that time.
It is also a risk that the longer it takes to start a legal action then the greater chance there is of key evidence being lost. One key aspect for any personal injury action includes witness statements (from both sides) and the more time that passes the more risk there is of the witnesses being able to accurately recall events from the time of the incident.
How does a claim proceed?
Your solicitor will take steps to recover all medical records from the treating hospitals and your GP.
These records will then be shared with independent medical experts who can scrutinise what steps were taken by health professionals during the birth of your child to identify whether there was negligence. – and more importantly, identify what those professionals did that may have been wrong, not in line with standard practice or even blatantly negligent. Instructing the right expert is a very important step in the claim. Specialist solicitors will know which experts to instruct.
Once your solicitor is satisfied with the reports and your case has been fully prepared, the papers are passed to begin court proceedings. As cerebral palsy cases are frequently high value, they are nearly always raised in the Court of Session in Edinburgh. In most cases, again due to the high value of such claims, health boards often dispute their liability – or at the very least, the value of the claim.
How long will a cerebral palsy claim take?
There is no clear answer to this as each case is different. The short answer would be to expect it to take a few years due to the need to fully understand and evaluate the impact the diagnosis has had on your life and the life of your child. The full effect of the diagnosis may not be known until your child is older which in turn requires the ongoing input of experts as the case progresses.
How is compensation assessed?
If it is possible to prove that cerebral palsy was caused due to negligence during labour and delivery, compensation will be awarded to provide the child with the care, therapy and treatments they require.
As part of the claim, evidence will be collected from a range of experts to determine your child’s financial and other needs, past and future to fully value your claims.
Experts such as:
- occupational therapists
- physiotherapists
- architects
- employment consultants
- rehabilitation consultants
- care experts
Until recently, most awards in Scotland have taken the form of a lump sum payment however on occasions it is agreed that any settlement or award will take the form of a lump sum and periodical payments. throughout the child’s lifetime towards the cost of care and support.
What should you do?
If you have any concerns that your child’s cerebral palsy may have been caused or materially contributed to by events during labour and delivery a preliminary discussion with a specialist solicitor may be worthwhile.
Information provided by Digby Brown Solicitors Clinical Negligence Team
