Cerebral Palsy Claims:
Should children
be able to claim
damages from
the NHS?
We recently settled a clinical
negligence claim for a child
who had cerebral palsy as
a result of negligence at the
time of delivery.
The headlines in the local paper referred
to the money involved. However, these
claims are not about a “lottery” win for
a child but about getting the funds to
support the child for the duration of his/
her life. The NHS does not settle these
claims on a “nuisance” basis. The NHS
only pays damages if there has been
an unreasonable standard of care that
has caused the child’s cerebral palsy.
Surely all users of the NHS are entitled
to receive reasonable care? It is what
I suspect most people would want for
themselves and their loved ones. Note it
is not the highest standard we are entitled
to but only a reasonable standard.
This article is not about that child’s
claim but about these claims in general
and the effect on the family and a child
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who has suffered a brain injury caused
by negligence.
Let’s set the scene: a couple are looking
forward to their baby being delivered
and all of the excitement that entails.
They have plans for their future. Of
course no one is entitled as of right to
their hopes and dreams being realised
but a child is entitled not to be seriously
injured due to negligence.
Our prospective parents attend hospital
for the birth of their child. It does not
go to plan and there is a great deal of
tension, concern and upset at the time
of and after delivery. Their baby is taken
to the special care baby unit. There is
uncertainty about whether the baby
will survive, they are very ill and having
fits. They may have feeding problems,
infections, be very irritable. The parents
aren’t getting a proper explanation about
what has happened, what went wrong
at the time of delivery or what the future
might be for them all.
After a few weeks the baby goes home with
mum and dad but still with major problems.
The parents are unlikely to have any
medical training or experience of significant
illness or health problems. Looking after
a new born baby is a challenge for most
people. But caring for an ill baby is very
testing and at times very frightening. The
baby may have a tube for feeding, may be
prone to chest infections, may still be fitting,
be almost impossible to settle and scream
a lot. There is no respite for the parents
who discover at an early stage that the
support they receive is minimal.
It often takes months if not years for
the parents to be given a diagnosis
so they also have to cope with a great
deal of uncertainty. It is emotionally
very difficult to cope with a diagnosis
of cerebral palsy. Many parents have
not heard of that term and do not have
much idea, if any, as to what that means
and how it will affect their child. Often
a child’s abilities do not become clear
for many years. Assessing the injury to
a child’s brain is not straight forward.
There is usually minimal help available
to the parents and if they do get any it
requires a great deal of effort by them.
Essentially they are on their own.
The sorts of problems the parents
encounter include:
• Unsuitable housing - carrying a child up
and down stairs damages backs and is
dangerous
• Housing and car unsuitable for a
wheelchair
• Cannot get the computer equipment
and software needed for their child
to progress and become more
independent
• No respite care - so the parents are
on call 24-hours a day, seven days
a week. Their child may have very
disturbed sleep, may be incontinent,
needs help with all activities for the
rest of their life, cannot be left in a
room by themselves
• Low income due to the parents giving
up, changing their jobs, reducing hours,
not being able to apply for promotion.
• Frequent hospital appointments,
difficulty travelling to them
• Depression and other psychiatric
illness - they may be very traumatised
by the events of the birth
• Significant problems getting
appropriate schooling for their child
• Real concerns about their child’s future
if the parents are no longer able to care
for them, when the parents die
• Inability to access the therapies that
are available to children on a private
basis e.g. specialist speech and
language therapy, physiotherapy,
hydrotherapy.
Most people would find this a very difficult
situation to cope with however much they
loved and were dedicated to their child.
Obtaining damages allows a child and
his/her parents to meet their needs from
when the damages are paid to the end
of their life. This enables the child to
realise their full potential and know that
they will have the care, housing and
equipment that they need for the rest of
their life. Falling back on the state is a
risky business particularly in the current
economic climate of endless cutbacks.
It must be remembered that a child with
cerebral palsy only obtains damages
because someone else has been
at fault and caused their brain to be
injured. Of course the midwife, doctor,
hospital did not mean to get it wrong
and they will be devastated by what
has happened. They too need proper
support from the NHS to cope and
learn from what has happened.
Children should be able to claim
damages for a brain injury caused by
negligence. After all, their life has been
completely changed. Their parents must
make sure that they instruct specialist
clinical negligence solicitors who have
experience of conducting cerebral palsy
claims and are members of the AVMA
referral panel and/or the Law Society
clinical negligence panel. The writer is
on both of these panels and this firm
has extensive experience of conducting
these claims successfully for children.
By Melanie Minter
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