Compensation for a disabled child

If you’re considering making a compensation claim for a disabled child you might be wondering how much your child’s claim is worth. When caused by medical negligence, serious neurological injuries such as cerebral palsy or other types of birth, neonatal or childhood brain injury can attract substantial compensation awards. The brief facts that can be disclosed in the media or on a website report could leave you thinking that they’re all fairly similar, so you may have wondered why some claims seem to attract so much more compensation than others. The answer is that no two claims are the same.

The role of compensation

To understand this fully, let’s consider what compensation claims are meant to do. They can’t turn back the clock and remove the injury, and because they can’t do this financial compensation never really makes things better. At best it can only help make the injured person’s life, as it is now, easier.

With that limitation in mind, the law says that when someone has been injured by another person or organisation’s negligence, they are entitled to compensation to put them back in the position (at least financially) that they would have been in if the injury hadn’t occurred. At the same time, the law will only ask the defendant (e.g. NHS Resolution on behalf of the negligent hospital or doctor) to pay compensation for injuries and loss that the claimant (patient) can prove was caused by their negligence. These principles are applied to every aspect of the compensation in a medical negligence case and can greatly affect the value of the claim.

What is included in a disabled child’s claim for compensation?

In most high-value birth injury or neonatal brain injury claims, only a relatively small proportion of the compensation is awarded for the injury itself. The severity of each child’s injury, their functional disability, their awareness of their limitations and their pain and suffering will all determine the amount of compensation for ‘pain, suffering and loss of amenity’ that relates to this element of their claim.

The rest of the claim relates almost entirely to the financial cost of putting the claimant back into the position that they would have been in if the injury had not happened by:

• repaying past expenses (known as special damages) that have been incurred as a direct result of the injury to date;
• providing day and night care and therapies;
• paying for adaptations to the family’s existing home or the reasonable, increased costs of more suitable, adapted accommodation;
• providing specialist equipment and aids to help manage their disability and maximise mobility and independence;
• paying a sum to compensate for their future net loss of earnings.

As each of these areas is investigated and the costs added to the claim, we see further differences. For example:

• whether the claimant will need waking and/or sleep-in night care, extra carers at certain times, and additional space at home to accommodate carers;
• the extra cost of buying and adapting a more suitable property, that is comparable and similarly located to the family’s existing home; 
• in most cases, the injured child’s claim for net loss of earnings in future will usually reflect average earnings, but can differ depending on the family’s circumstances.

Why is life expectancy relevant to a disabled child’s compensation claim?

One of the more sensitive factors which must be considered when valuing a disabled child’s claim relates to the child’s life expectancy – or how long they are expected to live. The law only requires the defendant to compensate them for the injury, losses and expenses which they will suffer during their life. If their life is shorter, then over the course of their shortened lifetime, they will spend less on care, therapies and specialist equipment.

Medical evidence and statistical data are used to value this aspect of the claim, taking into account the known life-threatening effects of the child’s injury and general data relating to the risks of accidental and other causes of death in the general population. Differences in life expectancy between claimants with the same type of brain injury can make a huge difference to the overall size of their claims.

We are often able to overcome uncertainties about our client’s life expectancy by negotiating a settlement in which the vital part of their compensation which relates to future care is paid by index-linked periodical payments via a PPO or periodical payment order, with the rest of the compensation paid as a lump sum. This protects the injured claimant from running out of money for care if they outlive their predicted lifespan.

Read more about PPOs and how we use them to protect our clients from future uncertainty.

Settlement vs going to court

We achieve excellent settlements in the vast majority of our clients’ claims without the need for a trial. In most cases, settlement occurs after we have already succeeded in obtaining a liability judgment at an earlier stage of the case, and our client has already benefited from substantial interim payments. 

Litigation can be uncertain, particularly where the defendant has not admitted liability for the claimant’s injuries. The claimant’s and defendant’s medical experts might have very strong but differing views on whether the defendant was negligent, or whether their negligence was the sole cause of the claimant’s injuries. In some cases, a discounted settlement, with the certainty of at least some compensation for the injured child, is more advisable than proceeding to trial with a significant risk of losing the case or an important part of the damages claim completely.

Each child’s case is unique and is handled skilfully by our specialist solicitors to secure the maximum possible compensation in the best interests of the child.

If your child has cerebral palsy or neurological disability as a result of medical negligence, or you have been contacted by HSSIB/MNSI or NHS Resolution, you can talk to a solicitor, free and confidentially, for advice about how to respond or make a claim by contacting us.