Can Cerebral Palsy clinical negligence claims be seen as a force for good?

Loading...

Cerebral Plasy Criminal Negligence

Clinical negligence compensation claims often get a pretty bad press in the UK. Headlines that latch onto multi-million-pound settlements, even in cases of birth injury negligence compensation, are often sensationalised by the use of emotive words, such as ‘winning compensation’ and ‘bumper windfall.’

Equally, the portrayal of clinical negligence solicitors and the work that they do, by some tabloid press, is that they are making money out of other people’s misfortunes.

In a nutshell, this entire argument goes something like:

‘It is wrong for people to get paid compensation because of a mistake made by a busy medical professional. It is also wrong that when the NHS is struggling with its funding that it should have to pay out many millions of pounds in compensation.’

There is an alternative way of looking at this.

The family of a child who suffers severe injuries at birth because of clinical negligence, have every right to claim so that their child receives compensation for the consequences of the errors of the medical professionals. They instruct specialist medical negligence solicitors to ensure that they have the best chance of succeeding with the claim.

Case study of a cerebral palsy compensation claim

This is a 2018 case of alleged delay, by midwives and obstetricians at a London Hospital, in responding to signs of foetal distress in a newborn male. The delay disrupted the oxygenated blood supply to the baby’s brain and the child, C, suffered a grade III hypoxic ischaemic encephalopathy. He developed dyskinetic cerebral palsy. Additional resulting disabilities were cognitive deficit, behavioural difficulties, and developmental delay.

They brought a clinical negligence claim on C’s behalf, against St. George’s NHS Trust. Liability was admitted, and the matter settled. C was 10 years old by this stage.

The damages awarded to C comprised a lump sum of £5,300,000 and further payments, known as periodic payments, to be made in future years. The settlement also included an annual payment of £10,000 every year following.

The amount awarded for each item (or head of damages) was not specified, because the case settled by agreement, rather than after a court hearing However, the child’s solicitor estimated that the amount of damages for pain and suffering and loss of amenity (in other words, for the injury itself) was near £250,000.

Most of the settlement figure comprised the expected costs of attempting to make the child’s life as comfortable as possible and to help him rehabilitate as much as he can, for the rest of his life.

Most of the lump sum is to cover the future cost of:

  • care
  • therapy
  • specialist therapy equipment
  • future healthcare
  • specialist support
  • medication
  • adaptive devices
  • specialised education
  • vocational training
  • specialist accommodation costs (near £1,000,000)
  • appointing a person to manage the affairs of the child (a Deputy)

The case we have highlighted above clearly shows that any idea that this award is a windfall is ridiculous. It is also disrespectful to the families of children born with severe birth injuries caused by medical negligence and who take the tough decision to make a clinical negligence claim, solely to improve their child’s quality of life.

Is it always necessary to instruct a specialist solicitor to pursue a cerebral palsy claim?

Specialist cerebral palsy solicitors are highly trained professionals who dedicate their lives to helping the victims of birth injury medical negligence. Cerebral palsy claims are extremely complex and can take many years to settle or to be decided upon at court.

Solicitors who are not experienced in doing this legal work are unlikely to have the specialist knowledge required to bring cerebral palsy claims to a successful conclusion. It is highly advisable that in cases of this nature, an expert in birth injury claims, is instructed to act for the family.

Should the NHS bear the brunt of such large pay-outs on compensation in cerebral palsy cases?

The NHS itself has accepted that it has a genuine problem in relation to avoidable cases of severe birth injury and with cerebral palsy cases, in particular. This concern led to the legal arm of the Health Service, NHS Resolution, setting up the ‘Early Notification Scheme’ in April 2017 with one of its aims being to:

‘Support the government’s stated priority of halving the rate of stillbirth, neonatal death and brain injury by 2025 and improving the safety of maternity care.’

It is difficult to sue medical professionals, and neither should the process be easy. The NHS legal department is right to be concerned at the large pay-outs that it makes in cerebral palsy negligence cases. Those payments result from failures within the NHS.

There is perhaps a case for saying that if the NHS was better funded, that it could implement procedures and systems that would both help to reduce instances of negligence and save money at the same time.

It is because of successful birth injury claims being made against it, that the NHS has taken action to reduce the numbers of avoidable birth injury incidents.

Whether the ‘Early Notification Scheme’ that has been introduced by the NHS will achieve its’ goals of drastically reducing incidents of birth injuries caused by medical negligence remains to be seen

In the meantime, it is entirely right that families whose children develop cerebral palsy because of medical negligence at birth, should be able to sue the NHS. It is also right that their child is compensated to the fullest extent that the law allows.

Summary

When a cerebral palsy claim has been settled (or won at court), most families in that situation would doubtless say that their overwhelming feeling upon settlement was one of relief. It is the relief that the case is over. No parent has ever taken the step of pursuing birth injury litigation, lightly. There is no cause for celebration. They haven’t ‘won’ anything.

However, the compensation that has been awarded will be wholly dedicated to helping the child make the very best of living with cerebral palsy.

Mooneerams Solicitors in South Wales can offer help and advice with clinical negligence matters.

Loading...