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Cerebral palsy claim FAQs
What do I have to prove in order to make a claim?
Firstly, that the medical care provided was negligent (serious mistakes were made) and secondly that the injury was caused by, or made significantly worse, as a result of the medical negligence (this second issue is called ‘causation’). The law does not use the scientific measure of proof to establish these requirements, but rather ‘what is more likely than not’ i.e. 51% or ‘the balance of probabilities.
How long will it take to prove I have grounds for a claim?
It depends on the strength and complexity of the case as to how long it will take to prove that medical negligence took place. If the facts are clear, the NHS will usually admit liability within a year or so of our first instruction. However, if there are complicating factors for either negligence or causation, it can take much longer and in particularly difficult cerebral palsy claim cases, up to 5 years or even longer.
Are there time limits on bringing a claim?
The cerebral palsy claim is the child’s and time does not run against a child. Time will, therefore, begin to run when the child is aged 18 and the time limit on bringing a claim, generally, is 3 years after that, so 21. However, if the claimant does not have mental capacity to bring a claim on their own, time will never run against them (though evidence to establish a cerebral palsy claim is often lost after 24 years or so).
How is a cerebral palsy claim valued?
A cerebral palsy claim is valued firstly as a lump sum to compensate for the profound injury having occurred at all. That sum might be in the order of £250,000 or so. Secondly, a sum to reimburse all expenses and losses arising from the injury down to the case being concluded. The value of that will vary from case to case but is often a significant sum due to the cost of providing care in particular. Thirdly, and most importantly, a sum to cover all the future losses and expenses for life arising out of meeting the needs that the cerebral palsy has caused. That part of the claim can, in total, come to many millions of pounds and will cover care, accommodation, therapies and so on.
Who is the client? Is it the child with cerebral palsy or their parents?
We act for the injured child. They are our ‘client’ and we have a professional duty to act in their best interests. As they can’t give us instructions, one of their parents will usually take on the role of ‘litigation friend’ and instruct us on the child’s behalf. A litigation friend is also needed where our client is a young adult, over the age of 18, but mentally disabled by their condition. As long the litigation friend is acting in the best interests of their child, we can take instructions from them on behalf of the client.
At a later stage of the court proceedings, where the client receives money, either by an interim payment or settlement, a Court of Protection Deputy is then appointed to manage the (child) client’s money under the Court of Protection’s supervision, unless the child will be mentally capable of managing their own financial affairs at 18 years of age.
At Boyes Turner, our own Court of Protection specialist, Ruth Meyer, is appointed Deputy for many of our clients. This ensures that we can continue to work closely with the litigation friend (usually a parent) to set up care and therapies, buy essential equipment and provide adapted accommodation whilst ensuring that the disabled child’s money is properly managed, protected and accessible as required to meet their needs.
Am I too old? Can teenagers or young adults make a claim?
We are often instructed by teenagers or young adults who have decided to seek help with investigating whether they can claim compensation for their cerebral palsy. In some cases, their parents were previously unaware of their rights or chose not to make a claim when they were younger. Over the years, the family may have coped, but as the teenager transitions into adulthood, they find themselves struggling to meet their increasing needs.
Many of our cerebral palsy clients have severe physical disability but are mentally capable of making their own decisions. They instruct us directly, usually with the support of their parents, in some cases whilst at studying at college or university.
There is no limitation deadline (time limit) for an injured claimant who is mentally incapable of managing their own affairs. For mentally competent claimants who were injured in childhood, the time limit for starting a claim is generally to age 21. In exceptional circumstances, the court may waive the deadline, so it is always best to seek specialist advice and to do so as early as possible.
In practice, our ability to pursue a cerebral palsy claim for our teenage and older clients is determined by the availability of the medical records and other contemporaneous, supportive evidence.
Will our cerebral palsy claim make it worse for other NHS patients?
In the same way as any other individual or organisation which has a duty of care to others, the NHS is responsible for compensating the people it harms. It is not insured but it receives central government funding, which includes provision to meet the cost of negligence claims. Despite political statements that are designed to generate feelings of guilt in those who might be considering bringing justifiable claims, it is inaccurate and incomplete to suggest that compensation awards are paid from money which is used for frontline NHS care.
High value compensation figures in cerebral palsy claims are usually reported as ‘capitalised equivalent’ settlements, which reflect the entire lifelong provision that has been made for the severely disabled child. Where the disability is severe and the child’s life expectationis long, resulting in higher annual costs and consequently larger awards, most of the compensation is paid in annual instalments (periodical payments or PPO) over the course of the patient’s life. If the patient does not live as long as the settlement intended, the annual payments cease on their death.
It’s worth remembering, that in every case where compensation is agreed by settlement or awarded at trial, the NHS has accepted, or it has been proven in court, that the injury resulted from negligent care. We take great care in our scrutiny and early investigation of the claims that we take on. That means that we can be confident that every case we present to the NHS is justified, meritorious and likely to succeed. We believe our clients deserve nothing less from us, and our track record speaks for itself.
What will it cost me to make a cerebral palsy claim?With Boyes Turner, nothing. We have a legal aid franchise and so are able to represent clients with birth injury cases under the legal aid scheme. Eligibility for legal aid is assessed on the financial circumstances of the child, not the parents, as the child is the claimant.