Medical negligence claims
Below is information about clinical negligence 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 as to 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:-
- Infection during pregnancy
- Oxygen deprivation to the brain
- Abnormal brain development
- Restricted uterine growth
- Neonatal stroke
- Blood abnormalities
- Genetic factors
If something goes wrong during the birth of a baby due to the negligence of a health professional, usually a midwife or doctor, then you rightly should be entitled to find out what happened, why it happened and whether this was the cause of the cerebral palsy.
Digby Brown Solicitors for many years has helped families wishing to pursue legal redress against the NHS after they have been subject to poor treatment and, in many cases, negligence. The specialist Clinical Negligence Department has five dedicated solicitors headed by Ruth Kelliher.
Finding out what happened can be extremely hard and sometimes impossible, however, answers to many questions you will have is the key and, in time lead to, where appropriate, rightful and fair compensation. Whether a legal approach is something you wish to consider is very much a personal issue and depends greatly on your circumstances. Sometimes the best thing you can do is just to talk it through.
The following are some commonly asked questions and answers to assist any parents who may have a concern that their child’s cerebral palsy is connected to the circumstances of his or her birth.
What steps should I take?
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. You may wish to discuss the questions you have with your general practitioner and seek his or her assistance and support. 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 explore the possibility of seeking financial compensation to help pay for the additional support and care that your child may require as a result of the cerebral palsy.
What should I do?
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.
Before engaging in any legal process you must consider how the case will be funded and it is most important that your solicitor explains fully how this process will work for the duration of the case, not just the initial steps. There are options although limited for fully funding a case:
- If you have any motor, household or travel insurance policies, it is worth checking if they provide Legal Expenses cover (LEI). If so, contact your insurers to see if a possible clinical negligence claim is covered by the policy and what the maximum limit of cover is. Few policies will provide the funding needed to see a case to conclusion but it may be possible to secure speculative funding (see below) at a later point.
- You may be eligible for legal aid. Legal aid is means-tested and takes into account the income and capital of the family. While legal aid is a valuable source of funding for the few who are eligible, there are many restrictions on the work which can be done and the experts that can be used.
- 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 his or her 19th birthday to pursue a claim in court. This time limit may not apply if the child has no legal capacity to give instructions or manage his financial affairs. 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.
How does the claim proceed?
Once funding has been agreed, your solicitor will take steps to recover all medical notes and records from the treating hospitals and your GP. These will include obstetric (maternity) and paediatric notes and records. Thereafter independent experts will be instructed.
Instructing the appropriate expert is a very important step in the claim. Specialist solicitors will know which experts to instruct. In a cerebral palsy case experts will usually include some or all of the following: a midwife, an obstetrician, a paediatric neuroradiologist, a paediatric neurologist, a neonatologist and a paediatrician. Your solicitor will advise the experts of the legal test they require to consider and address in their reports.
Once the reports are available it is usual for your solicitor to consult with some or all of the experts to make sure their position is fully understood and reflected in their reports. The experts will be asked to review the opinions of other experts. Sometimes it is necessary to seek a second opinion from an expert if a report is not helpful.
Once your solicitor is satisfied with the reports obtained and your case has been fully prepared, the papers are passed to counsel for a summons to be drafted. A summons is the writ which begins the court proceedings. Cases involving cerebral palsy are always raised in the Court of Session in Edinburgh. Once the summons has been accepted by the court it is sent to the other party, usually a Health Board, and a period of 28 days is allowed for written defences to be lodged.
Once defences are lodged, both sides adjust their written case. During the adjustment period, there will be meetings with counsel and experts. Each side sets out in their written case what they intend to prove with witness evidence. When the written case is in completed form, the case will be set down for a hearing.
How long will a case take?
This varies from case to case but in very general terms, although it can be shorter, it can take at least 2 to 3 years from first instruction before a case is ready to progress to court. The best experts are usually very busy and can take many months to produce reports. It can take at least 2 years between the case being ready for a hearing and court dates being made available.
How is compensation assessed?
If it is possible to prove that cerebral palsy was caused as a result of negligence during the labour and delivery, compensation will be awarded in order to provide the child with the care, therapy and treatments he or she requires. As part of the claim, the court will be provided with evidence from a range of experts such as occupational therapists, physiotherapists, architects, employment consultants, rehabilitation consultants and care experts. The court will take into account the cost of providing appropriate accommodation for the child, the cost of care and specialist equipment, transport and mobility aids etc. Your solicitor will seek reports from experts in all of the relevant fields in order to prepare a detailed schedule setting out all of your child’s financial and other needs, past and future and fully valuing the claim. 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. Periodical payments are regular payments made 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