Cerebral palsy claims

To establish a cerebral palsy clinical negligence claim, it is necessary to prove two things:

Firstly, it must be established that there has been sub-standard treatment equating to a ‘breach of duty’, specifically, that no reasonable and responsible body of clinicians would have provided the treatment that was given.

Secondly, if there is evidence of any breaches of duty, it is necessary to prove that injury has been caused, or made worse by those breaches of duty. Put another way, it is necessary to prove that injury would have been avoided but for the breaches of duty – this is known as ‘causation’.

Both breach of duty and causation must be proved for a cerebral palsy claim to succeed.

By way of example, there may have been a failure to appreciate that there was fetal distress during a labour and consequently to expedite the baby’s delivery 20 minutes earlier than was the case, amounting to a breach of duty. Proving that cerebral palsy is likely to have been avoided with delivery 20 minutes earlier than was the case would establish causation.

There are several types of cerebral palsy and, in the majority of instances, the condition is not likely to be caused by sub-standard care.

Spastic cerebral palsy results in increased muscle tone, and movements can be awkward. Spastic diplegia/diparesis mainly impacts the legs, with the arms less affected or not affected at all. Spastic hemiplegia/hemiparesis affects one side of the person’s body, and often the arm is more affected than the leg. Spastic quadriplegia/quadriparesis is the most severe form of spastic cerebral palsy and affects all four limbs, the trunk and the face.

Dyskinetic/athetoid/choreoathetoid/dystonic cerebral palsy results in problems controlling the movements of the arms, hands, legs and feet causing difficulties with walking and sitting. Movements can be slow and writhing or rapid and jerky and are uncontrollable. Sometimes the face and tongue can be affected impacting the ability to suck, swallow and speak. With this form of cerebral palsy, muscle tone can vary from increased to reduced at different times of the day.

Ataxic cerebral palsy involves problems with balance and coordination.

Mixed cerebral palsy involves symptoms of more than one type of cerebral palsy, with spastic-dyskinetic being the most common type of mixed cerebral palsy.

Dyskinetic/athetoid/choreoathetoid/dystonic cerebral palsy and spastic diplegic cerebral palsy are the types of cerebral palsy most often associated with poor clinical care, but this is certainly not always the case.

Expert evidence, such as from a paediatric neurologist or paediatrician, is required to identify the form of cerebral palsy that an individual may have, and to provide an opinion on the likely cause of the cerebral palsy. It will only be possible to bring a claim if both breach of duty and causation can be established.

If a claim can be established, it is possible to claim damages for the injury itself, known as general damages for pain, suffering and loss of amenity. The level of this award will reflect the sums awarded by the court in other cases where the injuries sustained have been similar, and will take into account the severity of the brain injury and the functional outcome, including the degree of physical, cognitive and behavioural problems, any sensory impairment, any epilepsy risk, life expectancy and the degree of insight.

The aim of compensation is to put someone in the position they would have been in, as far as possible, had they not suffered the injury.

In addition to general damages, it is also possible to claim quantifiable losses and needs such as past and future care and case management; accommodation costs; therapy costs; the costs of aids and equipment; the costs of assistive technology; loss of earnings and the costs associated with a deputyship or personal injury trust.

The care costs can often be significant in cerebral palsy claims as there may be a need for 24- hour care, potentially by two carers, depending on the severity of the injury.

When an individual has significant mobility issues, single storey accommodation may be required with additional room for carers, a sensory room and a therapy room.

Specialist experts will be instructed to consider the individual’s past losses as well as their future needs for care and case management; accommodation; therapy; aids and equipment; assistive technology; loss of earnings and whether a deputy will be required, or a personal injury trust. We will then endeavour to recover the sums needed to meet the identified needs.

You may have been told that an investigation or several investigations are being carried out. These might include a Serious Untoward Incident Investigation (SUI) at trust level; an Early Notification Scheme investigation (ENS); an investigation by the Healthcare Safety Investigation Branch (HSIB); an investigation by the Health Services Safety Investigations Body( HSSIB); or a Maternity and Newborn Safety Investigation (MNSI). We would be happy to discuss these types of investigation with you.

If a cerebral palsy claim is to be investigated, the relevant medical records will need to be requested and independent expert evidence will be obtained to address the issues of breach of duty and causation. The experts likely to be instructed to address breach of duty and causation are those in the fields of: midwifery; obstetrics; neonatology; neuroradiology; and paediatric neurology.

It is best to contact a solicitor as early as possible if you think there may be a claim, while the events are fresh in your mind. It may take some time to investigate a claim as there are a number of steps required, and many experts have long waiting lists.

It may not be possible to conclude a claim until a clear prognosis can be provided but, if liability is established, interim payments can be requested to cover some immediate needs, such as care and case management; therapeutic input; more suitable accommodation; aids and equipment, including an appropriate wheelchair and wheelchair assisted vehicle; assistive technology to aid communication; and the appointment of a deputy, if the individual lacks capacity, or is likely to lack capacity to manage their own property and affairs in adulthood.

There are several charities and organisations that can provide support to individuals and families and we would be happy to discuss their details with you.

We have a Court of Protection team who can advise on deputyships when an individual lacks capacity to manage their property and affairs, or personal injury trusts, if one is indicated once damages are agreed. Specialist employment solicitors can advise on care contracts and real estate solicitors can assist when accommodation is to be purchased. Our multi-disciplinary team can provide a wide range of practical help and support.