The claims process

Do I have to make a formal complaint to the hospital?

No, you don’t have to make a formal complaint to start a cerebral palsy claim. 

Since April 2017 NHS Trusts must report all maternity incidents that have led to a baby’s brain injury to NHS Resolution. This Early Notification Scheme aims to investigate cases at an early stage and parents will always be notified of the outcome of the investigation. If failings in care are identified then parents will be advised and told to seek independent and specialist legal advice on pursuing compensation for their child.

Prior to the introduction of the Early Notification scheme, NHS Trusts were supposed to undertake their own investigation in all cases where a baby suffered an injury at around the time of delivery. Unfortunately, these investigations were of varying quality and often parents wouldn’t be told of the investigation or the outcome of the investigation.

You shouldn’t, therefore, have to make a formal complaint to initiate an investigation. You should be able to obtain a copy of the hospital’s serious incident investigation report. If this isn’t forthcoming then we are happy to obtain a copy on your behalf along with the relevant maternity and neonatal medical records.

In some cases, where a child was born many years ago, there may not have been any investigation by the hospital but that doesn’t prevent us from exploring a compensation claim. Similarly in some cases, especially with less obvious injury, the NHS Trust may not have reported delivery/care as an incident and if you have any concerns you should contact us.”  

How long does a cerebral palsy claim take?

Obviously every case is different but we generally warn parents that it can take 4 years to obtain an admission of liability for the brain injury if the NHS chooses to defend the case to trial. However, in exceptional cases, we have been able to obtain an admission of liability and interim payment on account of damages within 6 months of instruction.  

It generally takes up to 18 months to 2 years to obtain Legal Aid funding, the relevant medical records from the GP and the hospital, reports from medical experts in up to 5 different disciplines and be in a position to provide a formal letter of claim to the hospital.

Once the letter of claim has been presented to the hospital it can then take another 2 years to obtain an admission of responsibility for the brain injury.  Once an admission is secured then we can obtain payment on account of the compensation to fund immediate needs whilst we value the claim.

It is unlikely to be possible to finally value the claim and conclude it until a child is 6 years or older, once their longer-term, lifetime needs are clearer.  However, during this period we can fund a child’s needs with interim payments of compensation.

What steps are involved in bringing a cerebral palsy claim?

The first step we take is to apply to the Legal Aid Agency for Legal Aid to fund an investigation.

We then obtain the relevant medical records, including brain scans, from the hospital and the GP.

We appoint independent medical experts in the disciplines of obstetrics and midwifery to comment on the standard of care that was provided during pregnancy, labour and delivery and whether there was negligence in the care provided.

If those experts report negligence then we appoint independent experts in the disciplines of neonatology, paediatric neurology, and paediatric neuroradiology to comment on the cause of the cerebral palsy and whether the cerebral palsy would have been avoided or significantly less if there had been no negligence and a proper standard of care. 

Once we have the 5 medical reports we generally have a meeting with a barrister, the experts, and the parents to discuss the evidence.  Provided the experts are supportive of a claim then the barrister prepares the formal documentation necessary to present the claim to the NHS.

The court rules require us to send the NHS a letter of claim setting out our allegations of negligence and the injury that we claim has been caused as a result.  The court rules allow the NHS 4 months to provide a letter of response but the NHS often requires longer than this to investigate and respond to the allegations made as they also need to obtain independent medical expert reports to decide whether they are going to be able to defend the claim or not.

Sometime the NHS will admit responsibility for the cerebral palsy in the letter of response and we can then obtain payment on account of the compensation to fund immediate needs.

If the NHS doesn’t admit responsibility then we will commence formal court proceedings.  The court will make an order timetabling various steps in the lead up to a trial date.  In most cases, the claim will be settled at some point before the trial date as it is very rare for cases to go to trial and so rare for parents to have to give evidence in court.

What happens once negligence is admitted?

The first thing we do once we have got an admission is to obtain a sizeable payment on account of compensation to fund immediate needs.

If we are dealing with a claim for a child who is still very young then it might not be clear until they are a little older what the future holds for them. This is sometimes the case where there is significantly preserved intellect, as a child will need to be older before their true potential can be predicted with any reliability. It is only when a child is asked to perform more complex tasks, as they develop, that the full extent of the problems that that child has becomes clearer. Also where the child is particularly vulnerable to life-threatening seizures, airway blockages or infections.

We involve a paediatric neurologist and educational neuropsychologist to report on whether they are able to provide a view of a child’s longer-term/lifetime needs.  We only get one opportunity to value the claim and can’t go back to court for more so it is important to only value the claim once the long term future is relatively clear.

If experts are confident in providing a long term view then we are able to proceed with the valuation of the claim and obtain reports from experts in 8 or more disciplines including care, case management, accommodation, therapies, equipment, transport, and education.

If experts aren’t confident in providing a long term view then we will adjourn the valuation of the case and put a hold on proceeding with the final valuation of the claim until the experts are able to provide a view.

We then obtain interim payments of compensation to ensure that the special needs of the child and family are met pending the final conclusion of the case.

We can, and in the majority of cases do, request that any award of compensation is kept confidential.

The importance of interim payments

The process of bringing a claim for cerebral palsy can take some time and is often complex, but you can be sure that we are looking after your child’s best interests at every step of the journey. 

We work with you to secure an admission of liability as soon as we reasonably can and we then obtain interim payments of compensation to fund care, accommodation, transport, education, and therapies until we are able to finally value the claim. 

The intervening period between getting an admission and finally concluding the claim can last some years, depending on how quickly we can assess a child’s long term needs. It can be a frustrating time with the claim proved but not finally concluded. This is a stage when the broader skills and experience that the Boyes Turner team have becomes essential to the child and their family.

 

Knowledgeable, organised, responsive, diligent, empathetic and human. I deal with many legal firms during the course of my work and have found the Court of Protection team at Boyes Turner to be, 'Simply the best'.

INDEPENDENT CASE MANAGER

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