Becoming a parent is both an eagerly anticipated and life-changing experience. It’s always hoped all will go well, but sometimes things might not go to plan. Mistakes made during pregnancy, labour and/or shortly after birth can result in injury to a baby’s brain which can result in the condition known as ‘cerebral palsy’.
As a lawyer specialising in representing people with brain injuries, I’ve provided support for parents who find themselves having to deal with the serious consequences of this type of negligence.
I’ve found that in cases where a baby has sustained a brain injury due to mistakes being made, it is quite possible that signs of foetal distress were apparent but not acted on promptly, or at all. For example, it could be that the healthcare professionals monitoring the baby’s condition during labour may not have noticed worrying changes in the baby’s heart rate and failed to arrange for an earlier delivery.
Babies who have sustained a brain injury may need to be cared for in a hospital’s Special Care Babies Unit and may have difficulties feeding at first and, later, with meeting developmental milestones.
Below, I’ll take you through the process of seeking compensation on behalf of your child for medical negligence leading to cerebral palsy.
The litigation process – how do I get started?
There’s a lot to get to grips with once your child has received their diagnosis. Once you’re ready to look into a claim, you’ll need to find a solicitor to investigate the case. I recommend finding a solicitor who specialises in child brain injury claims.
To successfully bring a claim against a defendant, you will need to prove two things:
- That the medical professionals who cared for mother and baby during pregnancy and labour provided substandard treatment, and
- As a result of that substandard treatment, your child has suffered injury and will suffer financial loss.
What information do I need to give my lawyer?
To investigate a claim for medical negligence which has caused cerebral palsy, I would need to review all medical records. This includes any scans of your child’s brain and the mother’s maternity and labour records from the hospital(s) at which both mother and baby were cared for.
Reviewing these records allows me to pinpoint details of any potential actions that may have caused your child to suffer injury as well as identify any potential defendants to bring the claim against.
The assessment process
Once I’ve examined your medical records and conclude that they suggest your child or their mother may have received substandard medical treatment, I’ll ask a specialist to give us their opinion. They’ll look at the standard of the treatment provided and consider whether they think what happened was acceptable or whether a different course of action should have been taken.
In some cases, I may have to approach more than one expert to get their opinion on different aspects of the care provided by the medical team. Typically for claims involving cerebral palsy, I’d approach specialists in obstetrics, midwifery, neonatology, paediatric neurology and neuroradiology.
If the experts think that your child and/or their mother did receive substandard treatment, I then ask them to give their opinion on the extent to which this substandard treatment caused your child to suffer injury.
Putting your case to the defendant
If the medical evidence supports your claim, I will write to the defendant – the medical professional or NHS trust – who was responsible for the substandard treatment your child or their mother received. This “letter of claim” will set out:
- the circumstances surrounding your child’s birth,
- the specific allegations of negligence levelled against the defendant(s),
- and the specific injuries and losses your child has sustained.
The defendant will investigate the claim and send their formal “letter of response”. This letter will set out the treatment they believe they provided and their reasons for making the decisions they did. Their response may also contain either an admission or a denial of liability.
If the defendant admits liability, we’ll then need to value your child’s claim. That is, figure out the amount of compensation you can ask for. Again, we’ll need to consult experts for their advice on your child’s condition and future needs. I’ll go into this in more detail below.
If the defendant denies liability, this is the stage at which I would advise my clients about issuing a claim in court. I’ll only advise you to pursue a claim in court if I believe you still have a strong case, taking into account the available expert evidence and the defendant’s responses.
The court process
Starting a claim in court sends a clear message to the defendant that we’ll continue to pursue them, and we believe in the case.
To prepare the claim for trial, where a judge determines the outcome of the case, both parties will need to submit their evidence to the court and narrow down the issues in the case. To be clear, both parties can still try to reach a settlement in the background while court proceedings are ongoing.
Valuing the claim
In order to progress a claim – whether through the court system or following an admission of liability – the claim will have to be valued.
I’ll need to obtain reports addressing your child’s condition and that take into account your child’s past, ongoing and future requirements, their current and future care, therapy, accommodation, assistive technology needs, and any needs that might become relevant throughout your child’s life.
If there has been an admission of liability, we can ask for an advance payment (called an “interim payment”) of your child’s settlement to take care of any pressing needs that would improve their current situation. This can include:
- a qualified brain injury case manager, who can manage and coordinate a bespoke care and therapy package
- any immediate accommodation and equipment needs your child may have
What can bringing a claim achieve?
Pursuing a medical negligence claim is not straightforward, and relies heavily on expert evidence. Having an experienced and specialist legal team working for you can help make this process go smoothly.
If you are successful in proving that mistakes have been made, a claim can expose those mistakes and ensure lessons are learnt to try to prevent the same thing happening again in the future.
For your family, a successful claim can provide the funds necessary to ensure your child’s care gives them complete support to help them realise their full potential. In the longer term, any settlement achieved gives you the peace of mind that you have secured your child’s future care and treatment for the rest of their life.
By Caroline Klage, Head of Child Brain Injury at Bolt Burdon Kemp
