Pursuing a claim for clinical negligence compensation can be a daunting experience at the best of times but particularly so when it involves a child. Cerebral Palsy cases will usually be commenced on behalf of a child by his or her parents. This means that as well as dealing with the day to day realities of having a child with Cerebral Palsy as the parent you may also be primarily responsible for instructing solicitors to investigate a compensation claim.
Cerebral Palsy claims are complex and often take many years to investigate. It is therefore helpful to know exactly what is involved in pursuing such a claim and to understand the steps that need to be followed.
Funding
To begin with it is necessary to sort out how the case is going to be funded. This is vitally important because the legal costs involved in investigating a case are likely to be extensive. Most cases involving claims for Cerebral Palsy will be eligible for public funding (formerly called legal aid). Your solicitor will generally make an application for funding on behalf of your child. Initially funding will be provided to carry out investigations to determine whether or not there is a viable case for negligence.
The Process of Investigating a Case Medical records
Once your solicitor is in receipt of all of the relevant notes and records they will need to be reviewed and placed into their correct chronological order. It will be necessary to make sure that all of the records have been properly provided.
Statements
It is important to take a detailed and accurate account of events. Your solicitor will go through the details of the pregnancy, labour and postnatal period in order to get a full account of exactly what happened. A statement will then be prepared which will be used to assist your solicitor and the experts as the case goes forwards.
It is usually best to provide a statement as soon as practically possible so as to avoid difficulties later on when memories may have faded. The statement will undoubtedly require amending and adding to as the case progresses.
As well as taking a statement from the mother of the child it may also be necessary to get a statement from any other witnesses to events such as from the father or grandparent as they may have noticed something which the mother did not.
Experts
In order to prove negligence it is necessary to establish that there has been a breach of duty, that the child has suffered an injury and that the injury was caused as a direct result of the breach of duty.
In order to prove these things independent expert evidence is required from an appropriately qualified medical expert to say whether or not the treatment provided by the defendant was inadequate and whether as a result of that inadequate treatment injury has occurred.
The nature of Cerebral Palsy cases means that it will be necessary for more than just one type of medical expert to be instructed to deal with these elements of the case.
Typically, the first type of expert to be instructed is a Consultant Obstetrician/Gynaecologist who will review and consider the prenatal treatment provided as well as the treatment provided during the labour and birth.
Thereafter, it may be necessary to instruct a neonatologist and/or a neuro radiologist to consider the care and treatment provided to the child immediately after the birth.
The experts will be specifically requested to advise as to whether in their expert opinion the care and treatment provided to the child either pre-or post birth fell below a reasonable standard. They will review the CTG traces to see if their was evidence that the baby's heart rate was increased or decreased rapidly which is an indicator the baby may be in distress. If the expert evidence supports that the treatment provided was below a reasonable standard and that there has been a breach of duty further evidence will be required in relation to the injury itself.
It may be necessary at that stage to instruct a Paediatric Neurologist to consider the nature of the brain injury and whether this was caused as a direct result of the breach of duty (negligent medical care).
Provided that the reports from the medical experts support a claim for negligence it will then be appropriate to obtain further expert reports dealing with the child’s long-term condition and prognosis. These subsequent reports will assist in valuing the case and it is likely that reports may be required from some or all of the following specialists:
Occupational Therapist
Care Expert
Accommodation Expert
Employment Expert
Paediatric Neurologist
Paediatrician
Physiotherapist
Barristers
Given the complexities of a Cerebral Palsy case a Barrister will be required to assist in advising upon the case at various stages throughout. It is likely that you will need to attend conferences at various stages with the Barrister, Medical Experts and your solicitor. The Barrister will assist on the technical points of law involved in the case and will also advise in relation to the prospects of success.
Notifying the Defendant of the claim
The Defendant (usually the hospital where the baby was born) will not be formally notified of the intended claim until supportive expert evidence has been obtained in the initial investigative period and until a conference has been held with the Barrister. It is not uncommon for this initial investigative process to take in the region of 18 months.
The defendant is formally notified of the claim by serving a ‘letter of claim’ on them. Thereafter they have a period of three months under the pre-action protocol to carry out their own investigations and provide their formal response stating whether or not they accept liability. Invariably in these cases the defendant will require more time to complete their investigations and it is reasonable for them to request this.
If the defendant admits liability, negotiations will be entered into to try to come to an agreement over the amount of compensation to be paid. However, if the defendant denies liability it will be necessary to revert to the Experts and the Barrister for their further comments and advice upon taking the case forward.
It may be necessary at that stage to consider commencing formal court proceedings.
Cerebral Palsy cases invariably take a long time to come to a final conclusion. This is largely because of their complexity and the fact that an immense amount of expert medical evidence is required to be able to properly address all of the necessary issues. It is important to be prepared for the length of time such a case is likely to take.
If you believe that you have been the victim of a medical error or negligence it may be possible to claim compensation.
If you would like to discuss a possible claim please contact HeadInjuryUK who are specialist clinical negligence solicitors who will be able to offer you further advice and information.
