The claims process

Making a formal complaint

Please talk to us before taking this step as we can save you considerable time and energy.

We rarely advise families of children with cerebral palsy or other birth injuries to make a formal complaint to the hospital. The formal complaint process has its place but is very time consuming and exhausting and where a child has been very seriously injured, the court is going to need to be involved in any event. Unnecessary steps should be avoided and avoiding the hospital complaint process will save between six months and over a year at the outset.

How long does a cerebral palsy claim take?

Generally it takes us one month from first contact with the family to obtain legal aid for a child. After that it takes about three months until we are able to instruct the first expert as we have to obtain the medical records from the GP and treating hospitals and this takes time.

The first expert is most usually an obstetrician who is required to comment on whether mistakes were made during the confinement and delivery. The best experts are very busy and it can take a further six months to obtain the first expert report. A ten-month wait therefore before the first palpable progress is made is not uncommon.

If the first expert report supports a claim (identifies medical negligence), legal aid is extended and we then obtain a report on any MRI or CT scans of the brain already available. At the same time we commission reports from two paediatricians (a neonatologist and a paediatric neurologist) to deal with whether the birth injury was caused by the negligence. We might also need a report from a Midwifery expert if the midwifery care is subject to criticism. Those additional reports will take up to a further year to obtain.

Progressing your cerebral palsy claim

If all four or five of the expert reports are supportive, we will involve a barrister to prepare the court documents and the barrister will also prepare a formal letter of claim to the hospital.  This letter will detail the exact allegations of negligence, and why we are of the opinion that the hospital failed in its duty of care.

This can however take up to two years from first contact. At this point we will often have a conference with the barrister and the experts (with the family attending) to discuss the whole case.

Admitting liability

The hospital have four months to respond formally to a letter of claim. Usually however they require more time than this to investigate and to respond to the allegations made. This might or might not be reasonable so how to respond to a request for further time will depend on the facts of each case. 

If, in the letter of response, they admit liability for medical negligence then matters can be moved forward very quickly and we can help the family financially and practically almost straight away. If however liability is denied then additional legal aid will be needed and court proceedings will have to be started. It can take a further 18 months or more from this point to secure judgment for the family.

It is very unusual for cases to come to trial and so equally unusual for a contested court hearing to take place. Parents who worry about the need to go to court can be reassured that it is most unusual for that to happen.

We therefore have to warn a family that it can take four years for a cerebral palsy claim to come to initial judgment if the defendant chooses to contest that case. Once judgment is secured, the claim can be valued and then completed as long as a clear prognosis is available for the child at that time.  

Assessment of a child's future needs

If we take a referral when a child is very young, it might not be clear until they are a little older what the future holds for them. This will particularly be the case where there is a significantly preserved intellect, as a child will need to be older, perhaps eight or nine, before true potential can be predicted with any reliability. It is only when the brain is asked to perform more complex tasks that the full extent of the problems that the child has becomes clear. The paediatric neurologist and educational neuropsychologist who we will have instructed in the claim will tell us when the best time to complete this analysis will be. It is very dangerous indeed to try to conclude the claim before this prognosis is available.

In these circumstances, we have to approach the case in two stages. Firstly we investigate and bring forward the claim and issue court proceedings to prove it. Once we have done that and with judgment entered, we confirm expert advice as to when the future will be predictable for the child and obtain appropriate court orders adjourning the valuation of the case until that time. However we do not wait until that time to assist the family. With judgment entered, we apply to the court for interim payments to ensure that the special needs of the child and family are met pending final conclusion of the claim.

Securing interim payments

Interim payments can be in very substantial sums as we need to try to meet all special needs arising including in the areas of education, accommodation, care, therapies, transport and ongoing advice and support to the family. This intervening period can last some years, all depending on how long we have to wait until a child’s potential becomes apparent. It can be a frustrating time with the claim proved but not concluded. This is the time when the broader skills and experience that the Boyes Turner team have become essential to the client.

The investigative process is not finished quickly and is complex, but you can be confident that we are looking after your best interests throughout the whole process. We have represented many hundreds of families since 1986 - a level of experience and skill that only a handful of other solicitors firms in the country can match.

 

I have to say I was extremely impressed with the service in what was a very difficult time for myself and my family. The advice and support I had from the team was fantastic and invaluable. They put mine and my wife's mind at rest on many occasions and got a great result for us. Thank you from all of us.

Mr Horne

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