Birth Injury

The claims process

• Choosing the right solicitor
• Legal costs - public funding
• Litigation friend - for claimants under 18
• Compensation
• Time limits
• Investment of damages
• Special educational needs

Step 1 >
When we first meet you we will take a detailed statement recording your recollections of the pregnancy and birth. We will also ask how your baby was in the first hours and days after birth and we will also require a clear picture of your child’s problems.

Step 2 >
Should you decide after our first meeting to pursue a claim for compensation on behalf of your child then all of the mother’s and child’s medical records will need to be obtained. These will be sorted and carefully considered by us with the help of our team of in-house nurses and midwives and they will give an initial opinion on the quality of care you received.

Step 3 >
After that independent expert doctors will be approached by us. Those doctors will be asked to consider the records and answer 2 crucial questions;

• Was there any incompetence in the way in which the labour, the birth or the care of the baby after the birth was handled?
• If so, did that incompetence cause the disability this child suffers from?

If our medical experts can answer those 2 questions positively then we will advise you that Court action should be started.

Choosing the right solicitor

It is crucial that you choose the right solicitor to handle your child’s case. These cases can be very complex and the amount of damages involved very high.

Very few solicitors specialise in this work. Even those on specialist clinical negligence panels may not have much experience in birth injury cases.

Ask your solicitor the following questions:

• How many birth injury cases have you personally handled?
• How many were successful?
• Are you a member of the Law Society’s Clinical Negligence Panel or the AVMA panel?

The answers to these questions should give an idea as to whether your solicitor is an expert in this field.

Legal costs – public funding

Where the person injured is a child under the age of 18 it should be possible to obtain public funding to pursue their claim.

The Legal Services Commission must be satisfied of 2 things before granting public funding:

• That the claim has a greater than 50% chance of succeeding
• That the child is financially eligible.

It is important to note that only your child’s means and resources are taken into account in assessing financial eligibility for public funding. Therefore, unless your child has any savings, items of value or investments totalling £3,000 or more, or is due to receive money from a trust fund or will, qualification should follow.

If funding is granted and the case then succeeds, the vast majority of your child's legal costs are likely to be recovered from the party at fault, in addition to any compensation awarded. However, if the claim fails and no compensation is recovered, the legal costs incurred will be met by the Legal Services Commission.

Public funding is not retrospective and therefore legal costs are only covered from the date when the Public Funding Certificate is issued. You will be pleased to know that Irwin Mitchell offers an initial interview free of charge. At this initial consultation we will advise whether or not your child’s claim is worth pursuing and if it is, we will make an application for public funding.

Your solicitor will discuss public funding and other methods of funding available with you in more detail.

Litigation friend

The law states that people under the age of 18 are not entitled to bring an action in their own right as they lack ‘legal capacity’.

An adult will be appointed to act on behalf of the child if the action is commenced before the child’s 18th birthday. The adult is usually a relative but may be any adult willing to act and is known throughout the proceedings as the ‘Litigation Friend’.

The function of the ‘Litigation Friend’ is to make decisions on the child’s behalf and generally protect the child’s interests throughout the litigation. Your solicitor will explain the role of the ‘Litigation Friend’ to you in more detail.

Compensation

Compensation awards for birth injury claims are usually very high. The level of damages will depend upon the level of disability that the child has and the extent to which aids and equipment are capable of improving the child’s or parent’s quality of life.

A large proportion of the ‘million pound’ awards we see reported in the press are to pay for the child’s cost of care in the future.

It is intended that compensation will provide financial security for the child’s future and will give parents the opportunity to relinquish their role as their child’s ‘around the clock’ carer should they choose to do so.

Your solicitor will need to involve a whole team of experts to assess the value of the child’s claim.

Time limits

Normally adults have 3 years, from the date they first knew or suspected that they were injured as a result of a medical accident, in which to start Court proceedings.

The rules relating to children are different. The 3 year period in these cases runs from the child’s 18th birthday. This means that Court proceedings can be commenced at any time before the child’s 21st birthday. In addition, if the person with cerebral palsy suffers from any intellectual impairment it may be possible to argue that undertaking proceedings has been delayed because that individual does not have the mental capacity to bring proceedings. Your solicitor will advise you on this point if you are in any doubt.

Even though time limits for children are different it is important to contact a solicitor as soon as possible, so that memories of all those involved are fresher.

If you are in any doubt, seek legal advice immediately.

Investment of damages

Any award of damages whether ordered or approved by the Court, will be paid into the Court and invested on your child’s behalf.

Generally speaking, your child will not be allowed access to the damages until the age of 18, although written application can be made to the Court at any time by the ‘Litigation Friend’ for sums to be paid out for appropriate expenses. The Court will consider whether the sum is reasonably required. If it is, the sum will usually be paid out to the ‘Litigation Friend’ for the child’s benefit.

Sometimes the Court will release a small sum immediately, for example, to enable necessary equipment to be purchased for your child.

Special educational needs

If your child’s injury interferes with his or her ability to learn at school you should ask the local education authority to consider whether additional support is required, for example, in the form of specialist teaching, therapy or one-to-one assistance. The process of assessment is complex and parents often need guidance.

Pre-school support is also available for younger children in certain circumstances.

Often the local education authority will readily agree to assess any special educational needs which your child may have. If they refuse to do so, or if having assessed those needs, they offer provision which you regard as insufficient, then you have a right to appeal at a tribunal.

Your solicitor can explain your rights in this area and can help ensure that your child’s needs are properly assessed and provided for.

Something to remember

Our children are obviously precious and fortunately most survive the trauma of childbirth without difficulty. Where a child is born with damage it is very tempting for parents to attribute that to the care provided at birth, particularly if the experience was difficult for the mother.

In fact in only a small percentage of cases can it be proved that the injury was caused at birth and not beforehand. An even smaller number are caused by negligence of the hospital staff.

In view of the difficulties inherent in these cases our aim at patientlawyers.com is to tell you as soon as possible if your child’s claim has no prospects of success.

You can contact one of our experts about investigating a claim here.

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