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In the last of our series of blogs I look in more detail at some of the types of compensation that can be claimed when Erb’s Palsy is suffered as a result of negligence.
In my previous article I looked at the nature of Erb’s palsy, and the two main types of damages that can be claimed in a clinical negligence claim – general damages (awarded for pain and suffering), and special damages (awarded for financial losses arising from the effects of the negligence). I explained that the aim of damages (compensation) in clinical negligence claims is to put the claimant back in the position that they would have been in, but for the negligence.
In Erb’s palsy negligence claims, damages can be potentially significant because the injury can be permanent and will then affect the injured person throughout their life. Some of the main types of financial losses are discussed below – this list is not exhaustive: every clinical negligence case is unique, and each claim will be investigated based on the injured person’s own circumstances.
It is possible to claim for the extra care the Erb’s palsy has necessitated. This is usually recovered at set hourly rates, which are assessed and if necessary, updated, annually.
The past care that has been provided is a matter of fact, so it is normal for your lawyer to go over what assistance the injured child has needed with some care. Care can be claimed for the extra time spent assisting with meals, dressing and grooming the claimant (hair styling, for example, can be problematic and require additional assistance that someone without Erb’s Palsy would not require). Using cutlery can present Erb’s sufferers with particular difficulties (using a knife and fork is difficult with only one “good” arm) and therefore the injured person may need to wash their clothes more frequently due to spillages, the costs of extra laundry could reasonably be claimed.
The care the Claimant will need in the future should also be investigated. This is usually considered by reference to a care expert, and following receipt of medical evidence from an orthopaedic surgeon as to the claimant’s condition and likely prognosis.
The care expert will assess the claimant’s care requirements now and in the future, and provide an itemised list of probable expenses arising. These can include the following:
1. Assistance with Household tasks – Most people do not realise how much they rely upon their parents until after they have left home. It is the care expert’s task to itemise what extra assistance the claimant will need. This can be an involved task – it is rarely appropriate to give a single annual figure. This is because people change over their lifetimes, and so far as is possible, those changes have to be factored in.
2. Assistance with childcare – if it is likely the injured person will have children in the future and may require additional assistance to look after their children due to their injuries.
We usually also obtain evidence from an Occupational Therapist, who will advise on:
1. Aids and equipment – These will typically aim to make the claimant’s home environment easier to manage and safer – cooking one-handed (for example) is inherently risky, and there are a number of items of equipment which can assist with this and promote the injured person’s independence.
2. DIY and Gardening – Many claimants with Erb’s palsy will require assistance with DIY and gardening, and it is appropriate to cost for that, whether the Claimant is living in rented accommodation (in which case s/he may be contractually obliged to maintain the garden), or in their own house.
3. Travel and transport – It is possible that the Claimant will need adaptations to his or her car (e.g., automatic transmission), and if so, it is appropriate to claim for the difference in costs between a car fitted with these and an unmodified vehicle, over the Claimant’s lifetime.
As explained in Yolande’s previous blog, many people Erb’s Paly may derive benefit from physiotherapy, and it is the claimant’s right to claim for the costs of any treatment arising from clinical negligence on a private basis, particularly as access to this through the NHS can often be varied depending on where the Claimant lives. The requirement for physiotherapy and hydrotherapy, and if so, what sort, must be assessed by reference to an independent physiotherapist.
Depending upon the medical evidence of an orthopaedic surgeon, the claimant may have a significant ongoing disability. Certain types of career (e.g., engineering, police, army, surgery or even some service industry roles) can then be out of reach as a result of these disabilities.
It is very difficult to predict the career progression of (as is not infrequently the case) a child who is under 10 years old. Lawyers have historically tended to look at the educational and career attainments of the child’s parents in this situation, and estimate the child’s likely progress and career path from these. This is not very scientific – but there is in practice little else to go on.
Sometimes, loss of earnings are dealt with by reference to an employment expert, who will provide detailed guidance in what the Claimant can and cannot do. There may also be an ongoing requirement to find professional employment support to assist him in finding work.
As ever, lawyers have to aim to put the Claimant back in the position which s/he would have been in but for the negligence alleged. Thus, it is only possible to claim for the difference between the career that the Claimant would have had but for the negligence, and that which s/he is likely to have.
In our blogs this week we have looked at “what is Erb’s Palsy and how is it caused”, “degrees of peripheral nerve injuries”, “therapies and types of surgery for peripheral nerve injuries” and “establishing breach of duty of care”. We hope that these provides useful information about this condition generally and in the context of making a negligence claim.
If you have a clinical negligence claim involving Erb’s palsy, then it is extremely important that you instruct a suitably specialised firm who understand the nature of Erb’s Palsy injuries and how they affect the injured person to ensure a full claim is made. The Clinical Negligence Team at Withy King have a wealth of expertise in this area, and are proud to have strong links with the Erb’s Palsy Group, a national charity dedicated to assisting the families of sufferers of this condition. Please contact me or another member of the team if you would like further advice on making a claim.