Birth Injuries - Irwin Mitchell

Birth Injuries
Personal Legal Services
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.
“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
–2–
With years of experience
working with families who’ve
suffered pregnancy and
childbirth problems, we
appreciate what you’re going
through and know exactly
how to help you get the
compensation you deserve.
Introduction
A mishandled pregnancy or birth can result in lifechanging consequences for mother, baby and the
family as a whole.
We have secured 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.
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.
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.
–3 –
Cerebral palsy
Cerebral palsy is a movement and posture disorder that affects
two out of every 1,000 children.
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.
Children with cerebral palsy often have other difficulties
caused by more damage to the brain including;
• Learning impairment
• Hearing and speech problems
• Visual impairments
• Behavioural problems
•Epilepsy.
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.
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’s estimated that
only 10% of children with cerebral palsy suffered damage
to their brain 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.
To talk to a specialist advisor today simply call free
on: 08000 23 22 33
or visit: www.irwinmitchell.com
you can also follow us on Twitter: @IMMedNegligence
–4–
Why use Irwin Mitchell?
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.
Our friendly and professional service includes:
• An early investigation into who is at fault
• Early compensation payments if possible to pay for
private healthcare
• Expert advice on state benefits, your employment
rights and other financial issues
• Professional 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.
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.
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.
Our service
Our highly specialised team combines powerful legal
arguments with care and consideration to ensure the
best possible outcome for you.
.
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.
–5–
When can I make a claim?
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 doesn’t commence until
the child’s 18th birthday. This means that court
proceedings can be started at any time before their
21st birthday.
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.
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.
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.
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.
–6–
How much will it cost?
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.
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
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.
Public funding is not retrospective and therefore legal costs
are only covered form the date when the public funding
certificate is issued.
–7–
How much compensation will I get?
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.
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.
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..
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.
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.
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.
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.
–8–
What happens when I claim?
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.
If our medical experts can answer those two questions
positively then we will advise you that court action should
be started.
Litigation Friend
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.
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.
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.
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?
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.
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.
–9–
Can you help us access education?
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.
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.
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.
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.
– 10 –
Can you help us access healthcare?
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 a wealth of experience
providing advice and assistance about community and
healthcare law.
• Attaining respite care services
•Challenging social services departments and
primary care trusts on provision of care and other
services.
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 your child’s needs and
securing care plans
• Liaising with Primary Care Trusts about NHS
Continuing Healthcare Funding
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.
“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 call.”
– 11 –
What else can we help you with?
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 to 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.
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 call.
Our friendly and 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 healthcare provision
• Support with personal welfare and healthcare matters
and how the Court of Protection can assist
• Wills, trust and probate services.
To talk to a specialist advisor today simply call free
on: 08000 23 22 33
or visit: www.irwinmitchell.com
you can also follow us on Twitter: @IMMedNegligence
– 12 –
Useful contacts
APIL (Association of Personal Injury Lawyers)
3 Alder Court
Rennie Hogg Road
Nottingham
NG2 1RX
Birth Trauma Association
PO Box 671
Ipswich
Suffolk
IP1 9AT
Telephone: 0115 958 0585
Email: [email protected]
Website: www.apil.org.uk
Email: [email protected]
Website: www.birthtraumaassociation.org.uk
Contact a Family
209-211 City Road
London
EC1V 1JN
AvMA (Action against Medical Accidents)
Freedman House
Christopher Wren Yard
117 High Street
Croydon
CR0 1QG
Telephone: 0808 808 3555
Email: [email protected]
Website: www.cafamily.org.uk
Telephone: 0845 123 2352
Website: www.avma.org.uk
NICE (National Institute for Health and
Clinical Excellence)
10 Spring Gardens
London
SW1A 2BU
Baby Lifeline
The Granary
Fernhill Court
Balsall Street East
Balsall Common
CV7 7FR
Telephone: 0300 323 0140
Email: [email protected]
Website: www.nice.org.uk
Telephone: 0167 653 4671
Email: [email protected]
Website: www.babylifeline.org.uk
– 13 –
Useful contacts
SANDS (Stillbirth and Neonatal Death
Society)
28 Portland Place
London
W1B 1LY
Helpline: 0207 436 5881
Email: [email protected]
Website: www.uk-sands.org
SCOPE
6 Market Road
London
N7 9PW
Telephone: 0808 800 3333
Email: [email protected]
Website: www.scope.org.uk
– 14 –
Notes
Freephone 08000 23 22 33
www.irwinmitchell.com
@irwinmitchell
For a list of our offices visit our website
To see a list of our offices please visit our website. Irwin Mitchell LLP is authorised and regulated by the Solicitors Regulation Authority.
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