Maximum severity cerebral palsy compensation claim - over-21 age limit ignored
Legal & Medical, the online magazine for the medico-legal profession this week reported that the High Court has used its discretion to allow a disabled man to sue the hospital he was born at, even though he is technically out of time.
27-year-old Jonathon Khairule has cerebral palsy and is severely disabled. He is in a wheelchair, and communicates by typing on a keyboard with his nose. Despite his maximum severity disabilities he has successfully mounted a challenge against Tameside General Hospital in Ashton under Lyne after the High Court used it’s discretion to waive the usual limitation period for his particular case.
Currently, legislation dictates that claims for personal injury must be brought within three years. For children this three year period may start the age of 18 (when they reach adulthood), meaning they have until their 21st birthday to make a compensation claim.
Mr Khairule wasn’t aware of this rule and didn’t seek legal advice until 18 months after his 21st birthday. Some law firms refused to take on his case because it rested on whether the court would use it’s discretion to allow legal action to progress.
Mr Khairule explained: “I knew I had cerebral palsy from birth. It wasn’t until I was in my early 20s that I started to do some investigating. I did not know if I would be able to claim compensation, I just wanted answers.
"I contacted various legal firms but no-one wanted to touch my case because I was over 21 and they told me I was technically out of time to bring a claim for a birth injury. This was a complete shock to me as I had no idea of any time limit.”
Commenting on the case, Adrian Desmond, a leading cerebral palsy lawyer from Reading based firm Boyes Turner said: “Many people are unaware of Court rules regarding time limits for bringing claims. The usual time limit for medical negligence claims is 3 years from the accident or date of knowledge. However time does not run against a person until they are 18 so clients have until their 21st birthday to make a claim for a birth injury such as cerebral palsy. Time will never run against someone who does not have mental capacity and this can be the position in respect of many cerebral palsy clients. For them the passage of time is not relevant to the Court allowing a claim to proceed. However often medical records will be destroyed by the hospital after 24 years after the birth and claims can be impossible to bring if the medical records have been destroyed, preventing any chance of compensation.
Boyes Turner lawyers have succeeded in bringing many major cerebral palsy claims that are out of time by asking the Court to use its discretion to allow the case to proceed and this is what happened in Mr Khairule's case”.
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