Re: Summer issue | Page 74

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 74 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 75