Posted: 28/11/2024
International Day of Persons with Disabilities is on 3 December 2024. The purpose of the day is to promote the inclusion, rights and wellbeing of people with disabilities, as well as raising awareness of those with disabilities that are either visible, or invisible. The event was first launched in 1992 by the United Nations and has been observed internationally each year for over three decades. This article focuses on how and why the law is relevant to those with disabilities.
Like anyone, people with disabilities and their family members may have specific legal needs at different times in their lives. Sometimes these may be directly related to their disability; for example:
Many of us have heard the term ‘clinical negligence’ but may not be sure exactly what it means. In simple terms, to make a claim for clinical negligence you need to show that a mistake was made in your medical care, and that this caused you an injury. If so, you may be able to claim compensation for that injury and for the financial losses it has caused you.
The first step to take is to contact a lawyer who specialises in clinical negligence. You may be doing this for yourself, or on behalf of your child or someone who does not have the ability to make the claim themselves.
When we take on a claim, the first step is to collect your medical records. Usually, we then send these to an independent medical expert to ask for their opinion on the care you received: what went wrong and what injury this caused. Sometimes several different experts will be involved, particularly if the claim is a complex one.
The aim of the law is to try to compensate you for the injury that you have suffered, so the value of a claim is based on how your injury has affected you and what needs you have as a result. For many people with disabilities, their needs are varied, and we often ask experts to provide their views about the likely costs of these needs.
Once we have our expert evidence, we write to set out the basis of your claim, including the injuries you have suffered, to the healthcare provider that caused your injury (the defendant). It is usually their insurers or legal team who will deal with the claim from this point forwards. The defendant has four months to investigate and respond.
Sometimes, the defendant might admit that errors have been made and that this caused your injury, and we would then move on to discussing the value of your claim with them to try to reach a settlement.
More often, the defendant will not admit everything, and we would then consider starting formal proceedings in court. This means that a timetable is set by the court for us and the defendant, to put together all our evidence and, at different stages, to show this to each other. This is a long process, and the aim is to try to reach a financial settlement so that we do not need to go all the way to a trial.
If the claim is being made for a child or someone who does not have the mental capacity to make a claim themselves, any settlement that is reached will need to be approved by a judge to make sure the amount of compensation agreed is in the child or person’s best interests.
For many of our clients, they have already made a complaint and are unhappy with the outcome. They want to know more about what went wrong, and whether it could have been avoided, so that they can achieve some form of closure. They often want to prevent the same mistake happening to someone else. Sometimes, after making a claim, they may receive an apology or a promise that the hospital will change how it does things. However, this cannot be guaranteed.
The aim of a clinical negligence claim, in the eyes of the law, is to get financial compensation. This rarely makes up for a life-changing injury but it can help families to get their lives back on track and provide independence, security and professional support.
In many cases, we act for the families of children who suffered brain damage at birth and now have severe disabilities. It can take many years of investigations to understand and evidence what happened and whether, with better medical care, the brain damage would have been avoided.
It also takes time to determine what the child’s needs are, and what they will be for the rest of their life. Part of our role is to explore these needs and obtain expert evidence as to how they can be met, both now and in the future, and how much this may cost.
As part of a successful claim, the injured person will receive compensation for their injuries, pain, suffering and quality of life. They will also claim for past and future financial loss. The sorts of losses that we investigate include:
Often, if the sums involved are very large, a settlement may be agreed in the form of a lump sum, plus yearly payments throughout the person’s life. Parents of children with disabilities often worry about the future, and these annual payments can provide reassurance that the child will be provided for after their parents are no longer around.
Many of the cases we work on for people with disabilities are ‘birth injury’ claims. A birth injury means harm that occurs to a baby immediately before, during, or shortly after, their birth. Most of the time, births go well and both mother and baby come away in good health. Very occasionally, things sadly go wrong and injuries can happen. Sometimes, it is the mother who is injured, and you may hear this being called a ‘maternal injury’.
Injuries can happen for many reasons and sometimes it does not mean that anything has been done incorrectly. Other times, mistakes are made at some point in the pregnancy or birth process, by the mother’s GP, midwife or obstetrician. Alternatively, it may be the neonatal care provided to the baby that went wrong.
There are a variety of birth injuries, such as cerebral palsy, Erb’s palsy and other brachial plexus injuries, meconium aspiration syndrome, bone fractures and severe bruising.
Often, the harm caused is only temporary and the baby goes on to lead a healthy life. Sometimes, however, the injury is more serious. If mistakes were made, and the injury to the baby could have been prevented with a reasonable standard of medical care, then a clinical negligence claim may be appropriate.
If a severe injury is suffered by a child, this may result in them needing lifelong care, support and equipment, amongst other requirements, which all come with associated costs. The claim allows for an independent investigation into what happened, and to seek compensation for the family to meet some of the costs caused by the child’s injury.
Victoria Johnson, associate at Penningtons Manches Cooper, says: “As a clinical negligence lawyer, I work with people with disabilities, or their families, all the time. International Day of Persons with Disabilities reminds us all, whether we have a disability or not, of the need to be inclusive. Negligent care can happen to anyone, at any stage of their lives. They may have no prior experience of having a disability and need support from specialist lawyers to help them navigate the complex process of investigating a claim. Like anyone, people with disabilities may need assistance on a whole range of issues. I hope that this article helps explain one aspect of the legal support that we can provide to them.”
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