EWJ Dec 2023 - Journal - Page 29
A Guide to Cerebral Palsy Claims
by Nicola Edgar, Partner - www.morton-fraser.com
Considering whether to pursue a claim for medical negligence can be a daunting and often confusing
experience. This is especially the case where it involves a child. If your child has been diagnosed with
Cerebral Palsy due to a birth injury which was possibly caused by deficiencies in the standard of care provided,
then you may be able to successfully pursue a claim for compensation against the health care provider.
Cerebral Palsy can be caused by birth injuries, lack of
oxygen in the womb or trauma, either in utero or
shortly after birth. Of course, many incidences of
Cerebral Palsy occur without any failure on the part of
medical staff. However, there are situations in which
the injuries sustained by a child were preventable,
caused by a breach of duty on the part of medical professionals, and resulted directly in a condition such as
Cerebral Palsy. In these particular cases, there may
be grounds to pursue legal action.
necessary to prove that the child has suffered an injury, and that that injury was caused as a direct result
of a failure to adhere to common practice. It must
then also be proved that the condition is linked to the
breach of duty and that, had the treatment been delivered in accordance with the ordinary standard of
care, a diagnosis of Cerebral Palsy would not have
been made.
In order to consider the above questions, expert
witnesses need to be involved to look at the medical
records and provide their opinion on what happened.
Typically, the first type of expert to be instructed
would be a obstetrician or a gynaecologist. That is because they will look at the actions of those involved in
managing the process of childbirth, and confirm
whether their actions were in accordance with the ordinary standard of care that should be expected in
those circumstances. Investigations after that point will
be determined by the answers of the first expert report, and the questions which still require to be
addressed.
How do I know if I have a Cerebral Palsy claim?
In most cases, it will not be known initially whether a
diagnosis of Cerebral Palsy was brought about by failures in the standard of care provided during childbirth. Investigations will need to be undertaken and
this will include the gathering of hospital records and
the instruction of expert medical opinion. Medical
negligence cases are often difficult to establish, but appointing a solicitor with significant experience of handling similar matters will mean that you have the
appropriate support and advice about how to take the
first steps in investigating your potential Cerebral
Palsy claim.
How do I make a Cerebral Palsy claim?
The first step in the process is speaking to a solicitor
about investigating the circumstances leading to the
diagnosis of Cerebral Palsy. We are always happy to
have a free, no obligation, confidential discussion regarding your case, and will be able to provide you with
initial advice on the next steps, including advice on
how to fund your claim.
When you first meet with a solicitor to discuss whether
you potentially have a case, it is important to ask questions about the experience the solicitor has in dealing
with cases concerning Cerebral Palsy. Many families
want to know that their appointed representative has
a track record of dealing with claims related to the investigation of how this condition was brought about.
How long will my Cerebral Palsy case take to
conclude?
The length of time your case continues for will
depend on a number of different factors. You should
be prepared for the case to last a year or more and, in
some cases, it can take significantly longer than this.
Cerebral Palsy claims are complex and often take
many years to investigate. The review of medical
records and the instruction of expert witnesses form
only the first part of the process. It is likely that multiple experts will be required to consider various elements of the case and your solicitor will work with you
in identifying the next steps in the investigation required in order to achieve a successful outcome to the
case. It will be important to get a detailed and accurate
account of events from you and also from the health
care professionals involved in the birth. Your solicitor
should consider the details of the pregnancy, labour
and post natal period in order to understand fully any
complications in the process. Formal statements will
be prepared which will assist the expert witnesses appointed to the case and their wider consideration of
the issues.
It is important that your solicitor has the information
available to consider what additional needs the child
has as a result of the diagnosis. Sometimes, that means
waiting a few years to allow the child to be assessed
and for a Care Needs Report to be prepared, with the
benefit of observing how the child has progressed and
developed over time. In most cases, the investigations
will take over a year, but it will be dependent on the
particular circumstances of your Cerebral Palsy claim
and it is important to emphasis that no two cases are
the same.
How much will my Cerebral Palsy case be worth?
Typically, the additional costs of caring for a child with
Cerebral Palsy are significant. If the case is ultimately
successful, financial compensation can be secured to
Why expert evidence is required
In order to establish that there has been a breach of
duty on the part of those providing health care, it is
EXPERT WITNESS JOURNAL
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DECEMBER 2023