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No two claims are the same - compensation claim 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, can attract substantial damages 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 life, as it is now, easier.
With that limitation in mind, the law says that when someone has been injured by negligence, they are entitled to compensation to put them back in the position that they would have been in if the injury hadn’t occurred. At the same time, the law will only ask the defendant (in this case the hospital or doctor defending the claim) 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 damages in a medical negligence case and can greatly affect the value of the claim.
How compensation is structured
In the majority of high value birth injury or neonatal brain damage claims, only a relatively small proportion of the compensation is awarded for the injury itself. The extent of each claimant’s injury, their particular level of disability, the claimant’s awareness of their limitations and the extent of their pain and suffering will all determine the size of this element of the claim.
The majority of the remaining part of the claim relates 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 expenses that have actually been incurred as a direct result of their injury to date.
- Providing day and night care and therapies.
- Paying for adaptations to the family’s existing home or, where their home cannot be adapted, by paying for the cost of comparable, suitable accommodation along with the reasonable costs of adaptation.
- Providing essential equipment and aids to help manage their condition and maximise their independence.
- Paying a sum for their potential net loss of earnings.
As each of these areas is investigated and the costs added to the claim, we see further differences. For example:
- The extent of the care package and whether there is a need for waking or sleep- in night care or two carers at certain periods of the day and night and the impact that the care package then has on accommodation needs.
- The cost of a comparable but suitable property in the location where the family live. So if the family lived in a modest house before the injury, then it will be the cost of a comparable type of property, albeit larger, to provide a suitable ensuite bathroom facility, therapy and equipment space, as well as carer accommodation.
- The amount for loss of earnings will depend on the occupations of parents and extended family and reference to average earnings.
One of the factors affecting the value of a claim which clients find most difficult to accept relates to the claimant’s life expectation – or how long they are expected to live. The law will only compensate them for the injury, losses and expenses which they will suffer during their life. If their life is shorter, they will require less care, lose less by way of earnings on a year by year basis and need less 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 injury and general data relating to the risks of accidental and other causes of death in the general population. Differences in life expectation between claimants with the same type of brain injury can make a huge difference in the overall size of their claims.
Where there are concerns or uncertainties about the claimant’s life expectation, Boyes Turner’s specialist lawyers often negotiate a settlement in which part of the damages award is paid by index linked periodical payments. This can help protect the claimant from running out of money if they go on to live far longer than expected. As far as the law is concerned, the compensation should last until the day the claimant dies with none left over, but in reality it is not that simple.
Settlement vs going to court
Litigation is uncertain, particularly where the defendant has not admitted liability for the claimant’s injuries. The medical experts on each side 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. There might be other factors which mean that a settlement, with the certainty of at least some compensation, is more advisable than proceeding to trial with a significant risk of losing the case or an important part of the damages claim completely.
There are many reasons why some claims attract more damages than others.
No two claims are the same.
I try to assist lawyers by explaining, in clear and comprehensible terms, what the relevant issues are and where the strengths and weaknesses of the case lie.
DR PETER DEAR