Parents’ guide to legal support: medical negligence including birth injury claims

Legal action over a brain injury can be confusing – read our Q&A on medical negligence claims with solicitors Irwin Mitchell.

The following information has been provided by Anita Jewitt, Partner, medical negligence at Irwin Mitchell. You can also read our legal guide on serious injury and road traffic accidents.

Why should I think about seeking legal advice – how do I know if there was any negligence?

It can be difficult to know whether you should or should not seek legal advice and whether ‘negligence’ contributed to your child’s brain injury. To simplify, we can consider ‘Was the medical care negligent, and if so, would there have been a different outcome if the right treatment had been given at the right time?’ Understanding the legal terminology can help. To be successful in a claim for compensation you need to be able to prove two legal tests:
  1. You must establish that there was a ‘breach of duty’. To establish that there was a breach of duty we must prove that the care provided fell below an acceptable standard and no other reasonably competent medical practitioner would have provided such level of care. To investigate whether there were any breaches of duty by the medical practitioner(s) we request an independent expert to review the evidence and advise whether the care fell below what should be expected.
  2. In addition, we need to prove the second legal test, ‘causation’. This means that we must be able to show that any breaches of duty in the care provided caused or contributed to the injury. A simple way of explaining this test, is asking yourself, ‘What would have happened had the medical practitioners not breached their duty of care?’ If we can show that the injuries would have been avoided or would have been less severe then we will be able to satisfy the second legal test.
You need to be able to establish both tests in order to be successful in a claim.    So in birth injury cases, for example, you might be able to prove a ‘breach of duty’ during labour, but if the neurological damage happened weeks or months earlier in the pregnancy, then you might not be able to prove causation (ie. that the breach of duty caused or contributed to the injuries sustained). This is because even if the right care had been given at the time of birth, it wouldn’t have made a difference to the outcome because the injury had already occurred. This is just one example, but your solicitor will explain if it applies in your specific case.

Why is it so complicated?

It can be difficult to establish liability in medical negligence cases. Other personal injury claims can be more straightforward. For example, if there is a road traffic accident because a driver ignored a red light then it’s clear that the driver was negligent. However, if you’re investigating a case involving a child who has suffered a brain injury following birth, it may not always be immediately obvious whether there will be a successful claim and there are often many complex issues to consider, such as:
  • Was there appropriate monitoring of the baby during the antenatal period?
  • Was the baby in distress throughout labour?
  • Did the medical practitioners act appropriately to any signs of distress throughout the labour?
  • Should the baby have been delivered sooner or as an emergency by caesarean section?
Or, perhaps in a case where there has been a delayed diagnosis of meningitis leading to a neurological injury, should the child have been referred to hospital earlier, and would earlier treatment have avoided the injuries? Solicitors will obtain independent medical reports (for example, from a midwife or obstetrician in a birth injury case, or another discipline of doctor depending on who was treating your child) and that medical expert will give advice as to whether the treatment fell below an acceptable standard. When solicitors obtain these report(s) they can form a view on your prospects of success in establishing a case for medical negligence.

What are the first steps when thinking about making a claim?

The first meeting with a solicitor would normally take place either at the office or your home. At this initial meeting, you would go through the circumstances of the case and your specific concerns, and your solicitor would advise you in relation to the possible avenues for a claim, discuss the legal tests, and the evidence they would obtain in order to see if there is a case. You can then decide whether you’d like to investigate a claim. After the initial meeting, the solicitors would apply for copies of the medical records and the hospital’s own internal investigation reports into your case (if available). They would also prepare a witness statement from you setting out your recollection of events, which may be important evidence in the claim. Although pursuing a case can be stressful at times, the process can provide answers, and the aim is ultimately to recover financial compensation to help provide for specialist care and support for the rest of your child’s life.

How is a case funded? 

At the initial meeting, the subject of funding will be discussed with advice given on the most appropriate funding agreement.  Some types of claims (if there was an injury at birth or in the weeks that followed) can be funded through Legal Aid.  If Legal Aid is not available, other options can be discussed, such as a Conditional Fee Agreement, often referred to as a ‘no win, no fee’ agreement.  This means if your claim is unsuccessful you won’t have to pay anything. Legal Expenses Insurance might also be an option – this may already come with your car or home insurance, so it’s worth checking to see if you’re covered as a policyholder and can be discussed with your solicitor at the initial meeting.    

‘Early Notification Scheme’ – what is this?

From 1 April 2017, a new scheme came into force whereby NHS Trusts had to report (within 30 days) all maternity incidents of potentially severe brain injury after labour. Certain criteria applies to this scheme, and you may have been contacted by the hospital to provide your account of events and feed into this investigation. If so, it’s always advisable to contact independent specialist solicitors so they can help guide you through the process with a view to trying to help achieve an early admission of liability so that funds can be released to help provide care and support for your child.

What normally happens in a case?

The NHS insurance body is called NHS Resolution. This body deals with all claims against the NHS.  Once funding is secured, your solicitors will instruct their own team of medical experts to provide an independent opinion as to whether there is the basis for a claim. The experts have an overriding duty to help the Court – this overrides any obligation to the person who has instructed them. They will prepare reports then you’re likely to have a meeting with your legal team) where you will go through the reports and be given advice as to whether there is supportive evidence to pursue a claim.

How long might a claim take from beginning to end?

Liability is always investigated first. This means we investigate whether there is sufficient grounds to pursue a claim and whether we can satisfy the two legal tests set out above before we investigate the value of any compensation award. As soon as liability is established, and the hospital have admitted negligence, an interim payment can be made to help pay for your child’s immediate needs such as private care, therapies and any specialist or adapted accommodation they may need before the claim is fully concluded. The time taken to resolve liability varies enormously between cases and sometimes the hospital will make an early admission, and in others the process can be lengthy and it can take a couple of years for liability to be established. When liability has been established, we move on to investigate ‘quantum’, which means the value of the claim. The process of working out how much a claim might be worth can take several years, particularly in cases on behalf of children. Generally most cases cannot be resolved until the child is aged six or seven, although solicitors may have to wait until your child is much older (into their teenage years) before the medical experts are able to provide an accurate prognosis on what their future needs might be. 

Will I have to go to court?

The aim is to try and settle outside of Court wherever possible. Only a small proportion of cases go to a Court hearing where you would need to give evidence.

Will compensation take into account previous costs?

Yes, both past and future losses are considered when working out the likely amount of compensation your child should receive. Past losses might include care costs (even if this is care provided by family members and not paid care), private therapy costs, equipment and travel expenses. Future losses will include care, future loss of earnings, private therapies (eg. physiotherapy, speech and language therapy and occupational therapy), as well as future accommodation needs (eg. an adapted property) and assistive technology. A number of other losses are considered. Your solicitors will obtain several different reports from specialists in their fields (eg. a report from a physiotherapist) to advise as to what your child’s future needs might be, together with the associated costs.

Will the settlement be revisited over time?

In the majority of cases, the settlement is once and for all. Therefore challenging decisions need to be made considering issues such as:
  • future prognosis, including issues such as epilepsy, for instance
  • long-term sleep problems (eg. is it necessary to have a carer on hand throughout the night?)
  • education; and
  • the structure of settlements.
A lot of cases are settled on the basis of a ‘lump sum’ award together with annual ‘periodical payments’ to meet the cost of care and case management. The advantage is that periodical payments will continue to be paid each year throughout your child’s life, meaning their future needs should always be met. The annual payments are tax free and linked to the cost of commercial care.

Can you give an example of where a medical negligence case would be successful?

One example is a child who had a fever and diarrhoea and vomiting. The child repeatedly went to the doctors over a number of weeks. Antibiotics were prescribed, with no effect. The child was also taken to hospital, but discharged because the fever settled after paracetamol was given, and it was felt that it was a viral infection which would settle. Unfortunately, the child was later admitted to hospital having suffered seizures and was diagnosed with meningitis and consequently a severe neurological injury.  The evidence obtained by the solicitors was that with appropriate medical care at the right time, the child was likely to have made a full recovery. Compensation was recovered to help meet the child’s future needs.

How long do I have to consider making a claim?

In cases involving children, proceedings need to be started (called ‘issuing a claim’) at Court before their 21st birthday. In some cases if the child lacks capacity, there can be no time limits although these tests are complex and your solicitors would have to advise you in relation to this. In general, it’s advisable to investigate a case sooner rather than later because events will still be fresh in your mind and it’s easier to obtain the evidence needed to pursue a claim (eg. medical records, internal investigation documents).

What are the benefits of making a claim?

The aim in bringing a claim is to provide care and any other support that child needs for the rest of their life. Families won’t always know if a claim is worth making – but an introductory meeting can help determine whether it’s worth taking further steps.

What are the drawbacks?

Cases can take their toll emotionally, but support will be provided throughout your claim and can be taken step-by-step. It can be seen as intrusive and stressful if your child has to undergo various assessments by medical experts, but your solicitors will guide you through the process, and these assessments will normally only take place as soon as liability has been established and it’s then a case of working out how much compensation ought to be received in order to meet your child’s future needs. It is not always clear from the outset whether there will be a successful clinical negligence claim and your solicitors may have to advise after a complex investigation that there is not sufficient evidence to pursue a claim. Although this can be frustrating and will not result in a compensation award, most people find that the process has been beneficial because it has answered unanswered questions about the cause of their child’s injuries and whether the outcome could have been different. This information has been provided by Irwin Mitchell’s medical negligence team.
There is an accompanying piece sharing a parent's experience of a medical negligence claim.
Irwin Mitchell has also provided a
Parents’ guide to legal support: serious injury and road traffic accidents.
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