Birth Injury Claims

While there is normally a three-year time limit to bring a claim for most types of medical negligence, the rules are different for birth injuries (or any injury to a child due to medical negligence).

If the birth injury your child suffered has left them without the mental capacity to bring a claim themselves e.g. due to serious brain damage, there will be no time limit for you to bring a claim on their behalf.

This would only change if they ever later gained the capacity to make a claim on their own behalf, in which case they would have until their 21st birthday or three-years from the date when they gained capacity, whichever is later.

In all other cases, the three-year time limit only comes into effect once the child in question turns 18. This means that they have until their 21st birthday to issue Court proceedings to bring a claim.

Exactly how much compensation you may be able to secure will depend on how serious the injury or injuries were and the long-term impact this has had or is likely to have on your child’s health.

The compensation you can claim will normally take the form of general damages and special damages, depending on the circumstances.

General damages – These cover non-financial losses e.g. compensation for pain and suffering and changes to your lifestyle, such as having to give up a favourite hobby and future financial losses that will be incurred as a result of the injury sustained.

Special damages – These cover specific financial losses which you have already incurred up to the date of settlement e.g. treatment costs, buying special equipment and loss of earnings as a result of having to give up work.

In many cases compensation will not be paid until the end of the case, when a settlement has been reached or damages have been awarded by the Court. Cerebral Palsy and Birth Injury claims often take sometime to conclude, so wherever possible, we actively seek to secure an interim payment of damages from the Defendant, on account of the compensation which will be paid at the end of the case. This is usually only possible after the Defendant has admitted responsibility for causing the injury.

Interim payments enable funds to be available, at an earlier time, to provide the care and support which the injured person requires, as well as the purchase of appropriate aids and equipment, appropriate transport and adapted accommodation.

If your child is severely disabled as a result of a birth injury, we will arrange for the appointment of a Brain Injury Case Manager, who will liaise with you and us to identify exactly what your child needs and then co-ordinate everything for you.

This will depend on various things, including how long it takes to gather the necessary evidence and whether the healthcare provider responsible is willing to admit fault and offer suitable compensation.

It typically takes a number of years to gather the necessary evidence for a birth injury claim, but can take longer, especially as it is sometimes necessary to wait to see exactly what long-term impact the birth injury has had on your child.

This is why it is so important, wherever possible, to obtain an interim payment of damages.

This will depend on whether the person who suffered the injury:

• Is under the age of 18
• Has the mental capacity to bring a claim on their own behalf

If they are under 18 and/or lack mental capacity to bring a claim themselves, then someone else will have to bring the claim on their behalf. This person is referred to as a ‘litigation friend’ and will have the legal authority to make decisions about the case on behalf of the injured party.

Most commonly a litigation friend will be the child’s parent or guardian, but they can be anyone, including a solicitor or other professional advocate.

In the past, most babies who suffered brain damage caused by a severe lack of oxygen at birth were later diagnosed with cerebral palsy. Their mobility would be affected and they were often wheelchair dependent. In addition, they might also have learning difficulties and behavioural problems.

In recent years, however, with the introduction of controlled cooling, the outcome maybe very different for these babies. The idea is to cool the brain in the hope of slowing down the processes that cause brain damage.

Where controlled cooling is used the babies body is usually cooled using a special mattress filled with cold liquid. Sometimes just the head is cooled using a custom-made cap. It is usually started as soon as the baby has been resuscitated and will last for up to 72 hours. After the cooling period, the baby is warmed up gradually until their temperature has returned to normal.

The outcome for many babies, who undergo controlled cooling, is that they no longer develop the same degree of neurological impairment resulting in severe physical disability. Indeed, they may have very little, if any, physical disability at all.

What has been found, however, is that these babies may still develop learning difficulties and behavioural problems or be diagnosed with Autistic Spectrum Disorder. These issues may not become apparent until the children are much older; often, not until after they have started at school. These children may have communication difficulties and find it difficult to interact with other children and adults or keep up with other children at school.

If you believe that your child has suffered a birth injury, as a result of medical negligence, but has not been diagnosed with cerebral palsy, you may still be able to pursue a birth injury compensation claim.

If a mother is injured (physically or mentally) whilst giving birth due to medical negligence on the part of the team handling the birth, they may be able to claim birth injury compensation as well. They will usually have three-years to bring a claim from the date of the birth.