1 Birth injuries Personal Injury All you need to know about making a birth injuries claim from leading personal injury lawyers Irwin Mitchell.
2 Looking back over the years, you handled the whole issue sensitively and were there to support us through some of our darkest moments. Daniel s future is now secure, it s embedded in granite that he will have the best care and equipment forever and so his quality of life will be significantly enhanced thanks to you. Richard & Ingrid Contents This information relates to the law and procedures in England and Wales. Please contact us if you need advice about the law and procedure in other legal jurisdictions. Introduction What is cerebal palsy? Why use Irwin Mitchell? When can I make a claim? How much will it cost? How much compensation will I get? What happens when I claim? Litigation friend Can you help us access education? Can you help us access healthcare? What else can we help you with? Useful contacts
3 Introduction 5 We understand birth injuries. With years of experience working with families who have suffered pregnancy and childbirth problems, we appreciate what you are going through and know exactly what needs to be done to help you get the compensation you deserve. A mishandled pregnancy or birth can result in life-changing consequences for mother, baby and the family as a whole. Key areas in which mistakes are made include: Ante-natal errors - despite highly advanced scans medical professionals can miss or even misdiagnose problems with a healthy unborn baby. Errors made at this stage can have huge consequences including misdiagnosed miscarriage, major unexpected conditions in the baby and even stillbirth. Errors during birth - damage from medical instruments, anaesthetics or inadequate suturing can cause serious gynaecological damage to mothers and injuries including cerebral palsy, brachial palsy (Erb s Palsy), brain injury, facial paralysis, spinal injuries, fractured bones and perinatal asphyxia to babies. We have won millions of pounds in compensation for people who have suffered from these errors and wrongful birth cases, where a failed sterilisation or alternative contraceptive procedure accidentally results in a baby being conceived. If you believe that you or your child have suffered an injury during pregnancy, childbirth or a gynaecological procedure, our specialist team of lawyers will help you fight for the compensation you deserve. We can help you gain the financial support and closure you need to cope with whatever the future may bring. I know I could not have come this far without your support and guidance. Through all those tearful conversations your patience with me never wavered. I want to thank you from the bottom of my heart. I will never forget you and the kindness that you bestowed on me. Val Above all, we put you first.
4 What is cerebral palsy? 7 Cerebral palsy is a movement and posture disorder that affects two out of every 1,000 children. Children with cerebral palsy often have other difficulties caused by more widespread damage to the brain including learning impairment, hearing and speech problems, visual impairments, behavioural problems and epilepsy. What causes cerebral palsy? Cerebral palsy is caused by damage to the part of the brain that controls motor functions. This damage usually occurs during pregnancy and conception - it is estimated that only 10% of children with cerebral palsy suffered damage to their brain during birth. What is duty of care? Medical professionals owe their patients what is known as a duty of care. This means that they are responsible for providing an acceptable level of care and protecting you and your baby from harm. As a patient you are entitled to expect reasonable standards and if these are not met, you may be able to claim compensation if it can be proved that your doctor, midwife or other health professionals have committed a breach of their duty of care. The most common example of this is where a baby has been deprived of oxygen before or during birth. If you think you may have a case contact one of our friendly professional staff for a free no obligation chat the sooner you speak to us, the sooner we ll be able to give you an honest opinion about your situation.
5 Why use Irwin Mitchell? 9 Irwin Mitchell is one of the largest and most experienced personal injury law firms in the country. Our reputation for helping families suffering from birth injuries is second to none and every year we recover millions of pounds of compensation for people whose children have been injured in this way. Specialist team Our specialist team of medical negligence experts has helped hundreds of clients with gynaecology, pregnancy and birth injury claims. Employing many of the country s finest personal injury lawyers, our highly specialised team combines powerful legal arguments with care and consideration to ensure the best possible outcome for you. Our service Our friendly professional service includes: An early investigation of who is to blame Early compensation payments where possible to pay for private healthcare and rehabilitation Expert advice on state benefits, your employment rights and other financial issues Expert support for you to access rehabilitation and therapy services Help if you need it from solicitors in our other departments, such as financial planning, personal injury trusts, wills advice, power of attorney, education and social care needs advice. Campaign for improvements At Irwin Mitchell we have a long history of campaigning for improvements in birth management and care. Through our work we hope to prevent birth injuries from happening and improve the quality of life and levels of compensation for those who have suffered. We are also sponsors and fundraisers for several leading charities and support groups - and a large number of our team volunteer their skills at national, local and individual level.
6 When can I make a claim? 11 Normally adults must make a claim within three years of the date they first knew or suspected that they were injured as a result of medical negligence. For children The rules relating to children are different. The three-year period applies but does not commence until the child s 18th birthday. This means that court proceedings can be started at any time before their 21st birthday. Also, if the person with cerebral palsy suffers from any intellectual impairment it may be possible to argue that proceedings have been delayed because they do not have the mental capacity to bring the claim themselves. Do I have a case? If you are unsure whether you have a claim you or a family member just needs to pick up the phone and talk it over with us. We ll assess your case free of charge, tell you what we think and then you can decide if you want to go ahead. We are also able to take cases over from other lawyers. We have helped many people who have been dissatisfied with the advice or service they have received from their lawyers, achieving the best possible outcome in all aspects of their claim including access to medical care, rehabilitation and compensation. What are my chances of winning? We have a long track record of winning compensation cases where the client initially thought they did not have a claim. When you contact us we will give you realistic advice on the chances of winning based on the information you provide. It is not possible to give a definitive answer on any case. However, the more information we have the more accurate an assessment we can make. I would like to thank you personally for your hard work, which was at times beyond the call of duty, Irwin Mitchell as a company have been outstanding, as was the whole legal team that worked on this case. Jason We will always give you an honest, straightforward opinion.
7 How much will it cost? 13 Don t worry about legal costs there might not be any. Free consultation If you think you may be able to claim compensation for birth injuries such as cerebral palsy, the best thing to do is give us a call. Our phone number is free and our initial consultation, which will determine whether you have a case and can apply for public funding is also completely free. Public funding You can receive public funding for a claim if the person with cerebral palsy is a child under the age of 18. In this instance, we will prepare a statement for the Legal Services Commission which explains why public funding should be granted. Although public funding is means tested, it is only the means and resources of the child that are taken into account. Therefore unless your child has any savings, items of value or investments totalling, 2,500 or more, is due to receive money from a trust fund or will, they should qualify for it. If funding is granted and the case succeeds, all of your child s legal costs are likely to be recovered from those at fault, in addition to any compensation awarded. However, if the claim fails and no compensation is recovered, legal costs will be met by the Legal Services Commission. Public funding is not retrospective and therefore legal costs are only covered form the date when the public funding certificate is issued.
8 How much compensation will I get? 15 Compensation awards for cerebral palsy are usually very high. The level of compensation will depend upon the level of disability the child has and the extent to which quality of life can be improved for them or their parents. Individually assessed It is important to bear in mind that everyone is different and the consequences of the same injury, and therefore the level of compensation awarded, will vary from person to person. As we learn more about you and your circumstances, we will be able to provide a more accurate idea of the financial value of your claim. You can be assured that we will do everything we can to recover the maximum amount of compensation available to you and organise payment terms to suit your immediate and on-going needs. Management of compensation Any compensation you receive needs to be properly managed. How this happens depends on whether the child is likely to have the mental capacity to manage the compensation themselves when they reach the age of 18. A medical assessment may be needed to confirm this. If they will have capacity the award will be paid into court and invested on their behalf until they reach the age of 18. However, the adult legally representing the child in court, known as the Litigation Friend, can apply to access the compensation at any time. The court will consider whether it is reasonable to do so before releasing any money. A Personal Injury Trust can also be set up for when the child reaches 18. These trusts help protect entitlement to various means-tested benefits and also provide a convenient way of managing the money. A court may consider authorising a trust on the child s behalf before they reach the age of 18 but they would have to be satisfied that it is in the child s best interests before doing so. If the child is unlikely to have the mental capacity to manage their own finances at the age of 18, an application will need to be made to the Court of Protection for the appointment of a deputy. Personally responsible for managing and investing the award on the child s behalf, the deputy can be appointed even if the child is still under 18 years of age. Legal management of finance is a complex field but our specialist Personal Injury Trusts and Court of Protection teams will make it as straightforward as possible for you. Just call our freephone number or ask your existing Irwin Mitchell solicitor to put you in touch.
9 What happens when I claim? 17 We aim to ensure that whether a claim for compensation is successful or not, you as parents achieve a greater understanding of exactly what happened during your child s birth and afterwards. Investigating the claim When we first meet you we will take a detailed statement recording your recollections of the pregnancy, birth and your baby s condition in the first hours and days of his or her life. Where a child is born with damage to the brain it is very tempting for parents to attribute that to the care provided at birth. In fact, only a small percentage of cases can be accredited to injury at birth. An even smaller number are caused by negligence of the hospital staff. In view of this we will tell you as soon as possible if your child s claim has any prospects of success. If we think it does, we will ask independent expert doctors to consider the mother and child s medical records and answer two crucial questions: Was there any incompetence in the way in which the labour, the birth or the care of the baby after the birth was handled? If so, did that incompetence cause the disability this child suffers from? It is the second question that often proves to be the most problematic in these cases. The reason for this is that there are many causes of cerebral palsy other than a lack of oxygen or injury occurring at the time of the birth. For example, genetic disorders, infection in the mother and other problems in pregnancy can all cause cerebral palsy. We as a family can t find the right words to thank you for everything. We are so grateful for what you have achieved for Luke and it s such a relief to know his future is secure. Kevin If our medical experts can answer those two questions positively then we will advise you that court action should be started.
10 Litigation friend 19 People under the age of 18 can t legally bring a court action in their own right. Usually but not necessarily a relative, an adult must be appointed to act on their behalf and is known throughout the proceedings as the Litigation Friend. Out of court The vast majority of cases are settled before they go to court. However, if your case is one of the few that is to be decided by a judge don t worry: it s perfectly normal and we ll be there to help you every step of the way. Your advice, support, knowledge and listening ear have always been very much appreciated... needless to say the financial support you have achieved, for us as a family, gives us a more positive outlook for the future. The function of the Litigation Friend is to make decisions on the child s behalf and generally protect their interests throughout the case. Your solicitor will explain the role of the Litigation Friend to you in more detail. Mike & Jane
11 Can you help us access education? 21 Our Public Law team regularly fights on behalf parents and guardians whose children are denied the right to a full education at school or in nursery. If your child s injury interferes with their ability to learn at school you should contact the Local Education Authority [LEA] and ask them to consider whether additional support is required. For example, your son or daughter may benefit from specialist teaching, therapy or one to-one assistance. Often the LEA will agree to assess any special educational needs your child may have. However, if they refuse to do so or offer provision that you regard as insufficient, you have a right to appeal at a tribunal. Irwin Mitchell s Public Law team are experts in education litigation. We can help you legally contest decisions made by your son or daughter s school, nursery or LEA if you feel their right to education has been denied. Examples of this include: Special educational needs are not being met An appeal needs to be made against an exclusion Admission may have been denied to a school or nursery. Our specialist team can explain your rights in this area and help ensure that your child s needs are properly assessed and provided for. Just call our freephone number or ask your existing Irwin Mitchell solicitor to put you in touch with the Public Law team.
12 Can you help us access healthcare? 23 If your child has health or social care needs that require additional support, your local authority or primary care trust have specific duties to ensure that your child s needs are being met. Our Public Law team has extensive experience providing advice and assistance about community and healthcare law. If you re a service user, carer or family member who has been denied access to health or social services, we can help you in many ways including: Obtaining assessments of needs and securing care plans Liaising with Primary Care Trusts regarding NHS Continuing Healthcare Funding Obtaining respite care services Challenging social services departments and primary care trusts on provision of care and other services. If you need expert help with anything connected to community or healthcare law just call our freephone number or ask your existing Irwin Mitchell solicitor to put you in touch with the Public Law team. We found you very professional as well as approachable, helpful and caring. We can now move on and look forward to a more stable and secure future. I am sure that this would not have happened without Irwin Mitchell being involved. Jayne
13 What else can we help you with? 25 We don t just specialise in birth injuries. Irwin Mitchell has dedicated teams working in all areas of personal legal services, enabling us to deliver quick and efficient legal advice on anything from settling family disputes and wills or buying a house. Our ability to offer clients a wide range of such specialism under one roof is one of the key benefits of our services. Our friendly professional staff give straightforward honest advice in all areas of personal legal services including: Buying or selling a house Divorce, children and family matters Employment difficulties Financial planning including tax and trusts Personal injury or illness Planning or environmental decisions Questioning social, education and health care provision Support on making decisions about personal welfare and healthcare matters and how the Court of Protection can assist Wills, trust and probate services. Whatever your legal issue our specialist staff will be pleased to help you sort it out all you need to do is pick up the phone and give us a call.
14 Useful contacts 27 APIL (Association of Personal Injury Lawyers) 3 Alder Court Rennie Hogg Road Nottingham NG2 1RX Telephone: Website: AvMA (Action against Medical Accidents) 44 High Street Croydon Surrey CR0 1YB Telephone: Website: Contact a Family City Road London EC1V 1JN Telephone: Website: NICE (National Institute for Health and Clinical Excellence) Midcity Place 71 High Holborn London WC1V 6NA Telephone: Website: Baby Lifeline Empathy Enterprise Building Bramston Crescent Tile Hill Lane Tile Hill Coventry CV4 9SW Telephone: Website: Birth Trauma Association PO Box 671 Ipswich Suffolk IP1 9AT Telephone: Website: SANDS (Stillbirth and Neonatal Death Society) 28 Portland Place London W1B 1LY Telephone Helpline: Website: SCOPE 6 Market Road London N7 9PW Telephone: Website:
15 Looking for help with a claim? Freephone Text claim to Irwin Mitchell Birmingham Imperial House, 31 Temple Street, B2 5DB Bristol One Castlepark, Tower Hill, BS2 0JA Glasgow 150 St Vincent Street, G2 5NE Leeds 2 Wellington Place, LS1 4BZ London 40 Holborn Viaduct, EC1N 2PZ Manchester Bauhaus Rossetti Place, 27 Quay Street, M3 4AW Newcastle upon Tyne Gainsborough House, Grey Street, NE1 6AE Sheffield Riverside East, 2 Millsands, S3 8DT Irwin Mitchell Consulting Office Leicester Suite 122, 1st Floor, Gateway House, 4 Pennman Way, Grove Business Park, Enderby, LE19 1SY Irwin Mitchell Abogados Madrid Torre Picasso, Plaza Pablo Ruiz Picasso 1, 11B, Madrid 28020, Spain Málaga Calle Puerta del Mar 15, 2º, Málaga, Spain Consultations are by appointment only. Irwin Mitchell LLP is a limited liability partnership registered in England & Wales, with number OC343897, and is authorised and regulated by the Solicitors Regulation Authority. All Scottish cases will be handled by a separate Scottish legal practice, Irwin Mitchell Scotland LLP, which is regulated by the Law Society of Scotland.