Cerebral palsy claims - help and legal advice for parents
We understand that choosing to seek legal advice can be difficult when your child or relative has been diagnosed with cerebral palsy. Please be assured that you are not alone.
You have the right to understand what happened during the birth and explore whether a healthcare professional's negligence may have caused harm, resulting in a diagnosis of cerebral palsy. Exploring what happened and identifying the steps that could and should have been taken is essential.
Digby Brown are here to support you in understanding your rights and help you to navigate the steps involved in pursuing a cerebral palsy claim.
Ruth Kelliher, Partner at Digby Brown explains how we can support families when a child or relative has been diagnosed with cerebral palsy
What is cerebral palsy?
Cerebral palsy is caused by damage to the brain and causes a disruption to the development of movement, posture and co-ordination. It is a term used by doctors to refer to a group of neurological conditions that affect a child's brain and nervous system.
There are many types of cerebral palsy and although it affects everyone in their own way it is a lifelong condition.
Children with cerebral palsy may suffer problems with mobility, posture and co-ordination, speech and language, vision, and may suffer from learning difficulties and epilepsy.
The effects can range from minor disabilities to those at the more profound end of the spectrum who require 24-hour care.
What causes cerebral palsy?
Cerebral palsy is caused by damage to the brain before, during or soon after birth.
Injury to the brain while the baby is in the womb is considered the most common cause and is thought to account for around 80% of cases.
Some other known causes include:
● oxygen starvation to baby’s brain during delivery
● infection in early pregnancy
● premature birth
● cerebral haemorrhage (bleeds in the baby’s brain)
● genetic factors
● abnormal brain development
● restricted uterine growth
● neonatal stroke
● blood abnormalities
Sometimes the cause is never discovered.
Spastic cerebral palsy - the most common type of cerebral palsy, it causes muscles to be stiff and tighter than normal. This can make movement more restricted and can reduce the range of movement possible. Severity can differ between each person.
Dyskinetic cerebral palsy - causes muscles to involuntarily change between being stiff and tight to weak and floppy. This triggers uncontrolled, random movements and spasms.
Ataxic cerebral palsy - this is when a person has balance and co-ordination issues and can present as difficulty with control of movement or a tremor. This is one of the least common types of cerebral palsy.
Mixed cerebral palsy - if someone has symptoms from more than one type of cerebral palsy.
Although the initial brain injury doesn't worsen, cerebral palsy is not static and can change over time. People with cerebral palsy can develop secondary problems such as muscle issues or chronic pain and fatigue which can change a person’s physical abilities.
Working with Cerebral Palsy Scotland
For over 10 years we have been working alongside Cerebral Palsy Scotland. The charity is dedicated to improving the quality of life for children and adults with cerebral palsy, including providing specialist therapy services.
Digby Brown’s support for Cerebral Palsy Scotland
In 2013, the firm chose to support Cerebral Palsy Scotland as it’s Charity of the Year and ever since has continued it’s support for the charity. Digby Brown also help with the charities annual World Cerebral Palsy Day conference every October since 2014.
Stephanie Fraser, CEO – Cerebral Palsy Scotland: “Without Digby Brown’s continued support of Cerebral Palsy Scotland and our aims this simply would not have happened and we cannot over-state the importance to our sector and to our clients and their families.”
Digby Brown have been working with Cerebral Palsy Scotland for over 10 years
Making a cerebral palsy claim
If any complications arise during childbirth due to the negligence of a health professional, then you have every right to look into what happened.
Cerebral palsy claims are complex but if you believe the condition has been caused by clinical negligence then you have the right to find out if you have a case.
Firstly, consider making a formal complaint to the hospital ensuring you follow the NHS Scotland Complaints procedure. There is guidance on how to pursue a complaint on the health board’s website. Once the process is complete you can seek legal advice. Some solicitors will offer free initial advice to help you make the decisions that are best for you.
Once you have had your initial consultation with your solicitor, they will proceed to recover all medical notes and records, including maternity and paediatric notes. Independent experts will then be instructed to review the records and prepare reports. These experts can include midwives, obstetricians, and paediatric neurologists.
Instructing the right expert is a crucial part of progressing your claim. It is necessary to prove both negligence and causation with reference to appropriate independent expert opinion.
It must show that there was a standard practice that was not followed, and that no competent midwife or doctor would have acted in this way. To prove causation you must show it is most likely the negligence, rather than any other cause, which has resulted in the diagnosis of cerebral palsy.
Once all the expert reports have been produced, and if they are supportive to your case, then your solicitor will formally intimate a claim to the health board. If the case cannot be resolved with the health board’s solicitors it may be necessary to raise court proceedings.
Due to their complexity, cases like this can take several years to resolve.
How is compensation assessed?
If cerebral palsy is proven to have been caused or contributed to by negligence during birth, then compensation will be awarded to cover various heads of claim including an award for ‘solatium’. This is the pain and suffering that the child has gone through because of their condition. Other heads of claim will include potential loss of earnings and the care needed, both in the past and in the future. There may be a claim for other things such as:
● Suitable accommodation
● Specialist equipment
● Transport and mobility aids
● Care and case management
The court will be presented with evidence from experts in these areas including paediatric neurologists, physiotherapists, rehabilitation consultants, care experts, occupational therapists, architects and more. The court will take into consideration the past and future costs to be able to fully value the claim.
No win, no fee personal injury solicitors
The expression “No win, no fee” is often used in personal injury cases. It is used as a way of funding a compensation claim where the accident victim does not have the means to pay for the costs involved as the case progresses.
A number of solicitors are prepared to handle personal injury cases on a “No Win – No Fee” basis but very few are able to offer their clients complete protection if the case is unsuccessful.
In that event, the client could end up being liable for many thousands of pounds in legal expenses or the case won't be fully investigated and therefore likely to under-settle.
Compensate 'no win, no fee' funding
Digby Brown has its own funding company, Compensate, which provides the funding to allow the case to be fully investigated, employ the best experts surrounding the circumstances of the accident and/or injuries sustained and where and if necessary go to court.
If for whatever reason the case is unsuccessful, Compensate pays all your legal expenses and those of your opponent – you pay nothing.
On average our clients receive over 3 times the pre-litigation offer
Because of Compensate funding Digby Brown's success rate is extremely high and on average our clients receive three times the pre-litigation offer.
In the event the case is successful, a small percentage of your damages will be deducted with VAT to pay for this service. The percentage which Compensate will charge depends on the degree of risk involved. We believe that this is the fairest method of giving clients access to justice whilst ensuring their cases are fully investigated, prepared and funded.
Don’t take our word for it, just read many of the court decisions and case studies on our website.
Beware of compensation offers which may be too good
We know you will have seen many adverts offering 100% compensation or telling you that you will not lose any of your compensation, however we believe there are a number of problems with companies that do this.
- How do they make their money if they don’t charge you anything?
- If they aren’t taking any money from you, the client, what incentive do they have to ensure you receive the right level of compensation, appropriate to the injuries you have sustained?
- Fully preparing a case, finding out exactly what happened and what the consequences of your injuries may mean in the long term, is expensive, how do they do this properly?
- If they aren’t fully preparing these cases will they just accept the first offer they are given on your behalf by the Insurance company?
- It makes simple business sense, the less work they do the higher their profit margin is - they simply have no incentive to work harder on your behalf.
- These adverts in the main are from English firms on national television which operates in a different way and therefore wouldn’t apply to a Scottish person.
We know from the many client cases we mandate from other firms of solicitors (in the main at the request of the client who is extremely unsatisfied with the service received for the other firm) that many shortcuts are taken in preparation and that the first offer received is being recommended for acceptance, regardless of the value.
Getting something for nothing is usually the first sign of poor service.
Correct level of compensation with Digby Brown
Our experience and statistics show time and time again we will achieve the correct level of compensation which will be substantially more than the insurer is initially prepared to offer.
Even after we have deducted our percentage as a success fee you will gain considerably more than you would have achieved using a 100% compensation model.
Contact Digby Brown's personal injury solicitors
We have offices across Scotland in Glasgow, Edinburgh, Dundee, Kirkcaldy, Inverness, Aberdeen and Ayr.
For further information about no win, no fee, or anything else, call us on 0333 200 5925 or fill in our enquiry form below and someone will get back in touch with you.
Why Digby Brown?
It is important for parents to seek specialist legal advice and discuss what steps could be taken to find out more before considering making a clinical negligence claim for compensation.
Why choose us to handle your claim?
Digby Brown has successfully helped many families over the years pursue legal action against the NHS. Our clinical negligence department within Digby Brown offers free legal advice and help for parents.
Ruth Kelliher is a Partner and Head of our clinical negligence team. She is accredited by the Law Society of Scotland as a specialist clinical negligence lawyer and recognised as a specialist in her field by Chambers Legal Guide. Trish McFadden is a Partner in the team who also holds specialist accredited status with the Law Society of Scotland and is recognised within Chambers Legal Guide.
The team are members of the Lawyers’ Service with Action Against Medical Action (AvMA) and are experienced in pursuing complex, high value birth injury claims.
If you would like to talk to a specialist lawyer about your experience, in the first instance please complete our Clinical Negligence Enquiry Form. Please give as much detail as you can about your situation as this will assist in our ability to fully understand your circumstances and give legal advice.
This advice is, of course, free of charge.
Are there any time limits for making cerebral palsy compensation claims?
In Scotland, a child has until their 19th birthday to pursue a claim in court, unless they lack legal capacity. It is generally better to pursue a claim sooner, as negligence is judged by the standards at the time of birth, requiring experts with relevant experience from that period.
How common is cerebral palsy?
Cerebral palsy is the most common physical disability in children, with around 1 in 500 births leading to a diagnosis and approximately 150 new cases every year in Scotland.
How do I make a cerebral palsy claim?
If you would like to speak to a specialist solicitor about your experience, please submit a Clinical Negligence enquiry form. Please include as much detail as possible so that our specialist solicitors can give you the most accurate legal advice. If you have any documentation such as a complaint response or Significant Adverse Event Review (a report produced by the hospital to look into what happened during the birth), it is helpful to include this when making your enquiry. Any initial advice is free of charge.
How do I know it was clinical negligence?
It can be difficult to determine whether or not there has been medical negligence in cerebral palsy cases due to their complex nature. This is why it is important to seek specialist legal advice to explore and consider steps before pursuing a medical negligence compensation claim.
Can you sue the NHS for cerebral palsy?
Yes, you can sue the NHS if your child has developed cerebral palsy as a result of clinical negligence.
Can cerebral palsy be caused by negligence?
Cerebral palsy can be caused by several factors including clinical negligence. Examples include failure to notice distress leading to lack of oxygen supply to the baby or not properly treating an infection.
How long will a case take?
This varies from case to case but generally it can take between 3 - 4 years at least. The best experts are usually very busy and can take many months to produce reports. Some cases may take longer if a child is very young and the full effect of their condition may not yet be known. It is important to monitor how the child develops to ensure any settlement will cover all of their needs both now and in the future.
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