In the first of our series of blogs raising awareness of Erb’s Palsy, we look at: what is Erb’s Palsy, how is it caused, and also an overview of damages in claims where Erb’s Palsy has been suffered as a result of negligence during birth.
Erb’s palsy is a condition which is caused by damage to the brachial plexus nerves, which run down both sides of the neck and onto the shoulders. This damage leads to lasting weakness in the affected arm, accompanied by paralysis and loss of sensation. The degree to which these symptoms are present is proportionate to the severity of the nerve injury which we will be discussing further in a later blog this week.
Erb’s Palsy is mostly suffered during birth. The triggering event is usually a shoulder dystocia (where one shoulder becomes wedged against the mother’s pelvic bone following delivery of the baby’s head, thus preventing delivery of the baby’s body). If this situation is not handled correctly, then there is a significant risk of the child developing a lasting injury in the form of Erb’s palsy.
If Erb’s palsy was caused by substandard medical care, and would otherwise have been avoided, then the injured person may be entitled to compensation for clinical negligence.
In any clinical negligence claim, the ultimate aim of an award for damages is to put the Claimant back in the position that s/he would have been in but for the negligence alleged. This can be a complex exercise as anybody with a lifelong condition will never occupy precisely the position that they would have done but for that injury. Consequently, any damages award is necessarily an approximation.
In the vast majority of clinical negligence claims involving Erb’s Palsy, the injury will have occurred at birth. This raises a number of questions – how can anyone know what that person would have done and achieved “but for” the negligence? I will be looking in more detail at this in a blog later in this series. For the present, I will focus upon the broad types of damages that can be awarded when making a clinical negligence claim.
Under English and Welsh law, broadly two types of damages can be awarded in civil litigation. These are known as “general” and “special” damages.
General damages are awarded for pain, suffering and loss of amenity. “Loss of amenity” is a legal term denoting loss of enjoyment in life caused by the injury – if, for example, someone who enjoyed golf and tennis broke their arm as a result of negligence, their inability to play those sports subsequently would be classed as a loss of amenity.
General damages are calculated by reference to judicial guidelines and case law based on the severity of the injury suffered and varies from case to case.
Special damages are awarded for financial losses arising to the Claimant as a consequence of the negligence. In clinical negligence claims arising from an injury at birth, not only the Claimant’s own losses, but those of his or her parents will also be considered. Lawyers need to review the facts in detail, and work out what expenses have arisen as a result of the Claimant’s condition. Bringing up children is always expensive, even when they are perfectly well, but the extra costs the condition has imposed can be recovered. By way of example, a claim for school dinners would not be viable as the child would always have needed to eat. However, the costs of care in assisting them with using cutlery could well be included as part of the claim.
The Claimant’s lawyers must consider not only the expenses that have been incurred to date when the claim is made, but also those relating to the Claimant’s future needs.
Assessing future losses is an inherently uncertain process, and requires in-depth analysis with medical experts. The role of the medical experts is to assess how the Claimant’s condition is likely to develop as they get older and what his or her future needs will be, drawing on their professional expertise. As explained above, the aim of this assessment is to place the Claimant back in the position that s/he would have been in but for the negligence complained of. Special damages can therefore include the costs of care, loss of earnings, therapies and equipment to name some.
Some of the more likely losses to be claimed will be discussed in more detail in my blog later in this Erb’s Palsy Awareness Week. Our next blog tomorrow will look at the different degrees of peripheral nerve injury that can be suffered.