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Frequently asked questions in birth injury claims


    In the eighth of our series of articles focussing on all aspects of legal claims for adults and children with cerebral palsy, Simon Elliman provides answers to some of the most ‘frequently asked questions’ by those who are considering bringing a claim for compensation.

    By Simon Elliman

As lawyers specialising in birth injury claims, I and my colleagues are naturally asked questions by our clients and are struck by the fact the most people share very similar questions and concerns when considering pursuing a claim. In this blog I will try to address some of the most commonly asked questions.

Is there a time limit for bringing a claim?

Yes. The usual rule for pursuing any claim for personal injury is that court proceedings must be issued within three years of the injury (caused by negligence) being sustained. However, if you are a child when you sustain injury, that three year period does not start to run until your eighteenth birthday, so you have until you are twenty-one to begin court proceedings.  Also, if someone is adjudged not to have ‘legal capacity’ to bring a claim themselves, there is usually no time limit at all. This could apply to someone who has suffered brain damage of a type and severity which means they could not understand legal proceedings.

In summary, in most cerebral palsy cases where the neurological injury is suffered around the time of birth, court proceedings don’t technically need to be brought much before the injured person is 21. But in reality it is best to start an investigation at the earliest opportunity. Legal claims are best brought while the facts are fresh in the minds of the key witnesses, and cases involving cerebral palsy are often complex and take a long time to bring to a conclusion.

Who brings the claim?

If you are a parent of a child who has cerebral palsy, especially if your child is still young, you will be thinking that it is you who will have to take responsibility for pursuing the claim. You are right to think that, but the claim will still be brought in the name of your child, but with you (or some other appropriate responsible adult) acting as your child’s “Litigation Friend”.

A Litigation Friend is required whenever a Claimant is either under 18, or lacks mental capacity to bring a claim themselves. In that role, you have a duty to make decisions in the best interest of your child, and as your child’s lawyers, we would take instructions from you on all key decisions in relation to the case.

I am worried about people finding out if the claim succeeds and my child is awarded a large sum of money

This is a very understandable concern which many people have. Fortunately the courts are alive to it also, and it is possible in most cases to obtain an “anonymity order” so neither your name nor your child’s name needs to appear on the face of the court proceedings. There will always be a hearing at the end of a claim involving a child or a person who does not have legal capacity, so that a judge can “approve” the settlement (i.e. to make sure that it is a sufficient sum, and reflects your child’s needs). The judge normally makes a ruling that any report by the press must not mention any detail that could lead to you or your child’s identity, even if an anonymity order is not already in place. So in summary, any award of damages made does not have to be in the public domain.

Who pays the legal costs?

Legal Aid is still available in cases where the person bringing a claim has suffered a ‘neurological injury’ around the time of their birth, and that definition includes cerebral palsy. So usually a Legal Aid Certificate will be obtained which will enable the investigations to be paid for. If the case succeeds, the losing party (usually the NHS Trust responsible for the injury) will have to pay all the costs in any event.

If, for some reason Legal Aid is not available to you, we would normally pursue the claim on a “No Win No Fee” basis, which means that if the case wins, the majority of your legal costs are paid by the losing party, and if the case loses you do not have to pay any legal costs at all.

How long will a case take?

This is a hard question to answer. Cerebral palsy claims are complex and require a great deal of expert medical evidence, so many independent experts will be involved. Cases are often fought on a “split trial” basis, which means that the questions of negligence (were the doctors negligent?) and causation (did the negligence cause your child’s injury?) are decided first.

If liability for your child’s injuries is established, there will then be a further set of court proceedings to quantify how much compensation your child should be paid based on their injuries and lifelong needs as a result of those injuries. Sometimes it is necessary to wait until a child reaches a certain age before their medical prognosis is clear and the case can be quantified.  In cases involving a child with cerebral palsy the compensation they receive will need to provide for the rest of their life and therefore it is vital that investigations are thorough, and this can take some time.  Overall, being realistic, it is likely to take perhaps five years or so to bring a claim to a conclusion, but all cases are different, and your lawyer will advise you at each stage.

How much money is likely to be paid by way of compensation?

This depends very much on the nature and extent of your child’s injuries, and may also depend on the likelihood of the claim succeeding (sometimes a case is compromised on a 50/50 basis where it is very uncertain as to whether it would be successful at trial that the hospital was responsible for your child’s injuries).

We have obtained damages running into several millions of pounds on many occasions for clients with cerebral palsy. Some of these are reported on our website, and a brief review of the case examples there will give you a good idea as to the sums which may be involved.

My colleague Richard will also discuss in more detail tomrorrow the different types of compensation that can be claimed and how these are calculated.

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