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The Process for Child Brain Injury Claims

Read below for information about the general litigation process if your child’s brain injury was due to negligent medical treatment. If your child’s brain injury was the result of an accident, our accident claims process information may be more relevant to you. 

Discussing appropriate funding

Once you’ve been assigned a specialist solicitor, the first step is to determine the most appropriate funding arrangement for you. Your options can include pre-existing Legal Expenses Insurance, Legal Aid or a “no win, no fee” agreement. 

Investigating your child’s case

Well request copies of your child’s medical records and GP notes from the hospitals they received treatment. We’ll get these thoroughly reviewed to find the specific incidences of substandard treatment that resulted in injury. Well also identify each of the potential defendants in the case. 

To successfully bring a claim, well need to prove that: 

  1. The medical professionals who treated your child provided substandard treatment 
  1. That, as a result of this, your child has suffered injury and financial loss 

Experts’ opinions

If we feel that your child’s medical records are supportive of a claim, well instruct a specialist medical expert to provide an opinion on any potential incidences of substandard treatment. It may be necessary to approach more than one expert if the substandard treatment was provided by medical professionals in more than one discipline. Well also ask appropriate medical expert(s) to report on whether any of these incidences of substandard treatment resulted in your child suffering an injury or illness. 

Setting out the details of your child’s case

We’ll then draft a formal “letter of claim” to the medical professional(s) or NHS Trust responsible. It will set out in detail the circumstances surrounding your child’s treatment, the specific allegations of negligence we are making against the Defendant(s) and the particular injuries and losses you and your child have sustained. 

The Defendant will then have four months to investigate the claim and respond with a formal “letter of response” outlining the treatment provided, any reasoning behind decisions made and a summary of medical records. The letter may contain either an admission or denial of liability. 

We appreciate that it can be difficult making a claim against the team who may still be providing medical treatment for your child. We understand the importance of maintaining a good relationship with your child’s treating medical team and are used to handling these situations. 

Response from the defendant - accept responsibility

If liability is admitted, well arrange for your child to be assessed by a medical expert who will provide a formal report on your child’s condition and prognosis. We’ll need to carefully consider your child’s past, ongoing and future requirements and, where appropriate, commission expert reports on your child’s current and future care, therapy, accommodation, assistive technology and any other needs to enable us to accurately value the claim. We’ll discuss all of these carefully with you, and then make a formal offer to settle the claim to the Defendant. If your child requires further treatment and therapy before the claim can be quantified, well request an interim payment to fund the treatment and therapy required. In appropriate cases we can also arrange for qualified case manager to manage and coordinate a care and therapy package for your child. 

If liability is denied, well consider the letter of response with our medical experts. If we still think you have a strong case, well obtain a medical report on your child’s condition and consider issuing court proceedings to send out the strong message that we are willing to allow the claim to be determined by a judge at trial. We may also need to go to court if a settlement can’t be reached. 

Response from the defendant – deny responsibility

In order to  issue court proceedings, we’ll need to prepare the following documents: 

(a) The Claim Form – a formal document setting out brief details of the parties to the claim, the alleged date(s) on which the substandard treatment occurred and on which you realised your child had suffered injury as a result of the treatment received and the approximate value of the claim. The court will be asked to seal or “issue” this document, signifying the issue of proceedings. 

(b) The Particulars of Claim – a formal document setting out paragraph by paragraph the circumstances surrounding your claim, the particulars of the negligence alleged and the injuries sustained as a result. 

(c) A medical report from one of the medical experts involved in the claim, setting out your child’s condition and prognosis. 

(d) A Schedule of Loss – a formal document setting out the details of the past and future loss and expenses incurred due to your child’s injuries. 

Once the Court has issued the Claim Form, we have a period of 4 months to serve all the above documents on the Defendant(s) or their nominated solicitors. From the effective date of service, the Defendant(s) or their solicitors have a period of 14 days to serve an Acknowledge of Service indicating they intend to defend the claim. They then have a further 14 days to serve a Defence. The Defence will respond paragraph by paragraph to the Particulars of Claim with an admission or a denial of liability. If no Defence is filed, judgment can be entered against the Defendant(s) and the court will arrange for your compensation to be assessed. 

Preparing for your child’s trial

Once the Defence has been served, the court will list a Case Management Conference to determine a timetable of steps to be completed by both parties to narrow the issues and/or value your claim. These steps include disclosure of relevant documents, exchange of witness statements and exchange of experts’ reports. The Defendant may be granted permission to instruct their own medical experts in the same disciplines as your medical experts. The court will also list the case for trial. 

While preparing your case for trial in accordance with the court timetable, well continue to consider whether a settlement can be reached. If we’re unable to agree a settlement, the claim will ultimately be decided by a judge at trial. Please be reassured that many cases do settle without having to proceed to trial and the court will usually require the parties to consider alternative methods of settling a claim to trial. This could be, for example, a round table settlement meeting where both parties and their representatives meet with a view to trying to negotiate a settlement face to face. 

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If your child suffered a brain injury due to substandard treatment, it may be possible to make a compensation claim

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