Birth Injuries and Cerebral Palsy Overview
Erb's Palsy
Maternal Injuries
Types of Claims
Funding
Cerebral palsy is a broad term which encompasses many different movement disorders. There are three main types of cerebral palsy: spastic (stiff and difficult movement), athetoid (involuntary and uncontrolled movement) and ataxic (disturbed sense of balance and depth perception).
Although the cause of cerebral palsy in a new-born child is often obscure, it is well documented that certain types of cerebral palsy are associated with oxygen deprivation to the foetus during labour, causing brain damage.
Broadly, cerebral palsy of the spastic quadriplegic type is associated with prolonged partial oxygen starvation during labour, while athetoid (dyskinetic) cerebral palsy is likely to have been caused by a severe acute episode of near-total oxygen starvation. However, this is an over-simplification. Hemiplegic cerebral palsy, and intellectual disability without spasticity can also be due to oxygen starvation during labour.
Obtaining the medical records
In the case of a birth injury claim, we will need to obtain the child’s general practitioner and hospital records and also the general practitioner and obstetric records of the mother. This is to enable our medical experts to consider the mother’s health both prior to and during the pregnancy as well as understanding what went on during the labour and delivery.
The hospitals and GPs aim to provide the records within 40 days of our request, although sometimes this may take longer, particularly where the child is receiving ongoing treatment and the records are with a particular hospital department.
Obtaining the records will be the first step we take once funding has been agreed, probably with Public Funding.
Medical Experts
The first report it is usually appropriate to obtain in a birth injury case is that of an expert consultant obstetrician and gynaecologist, to consider what went on during the labour and delivery and to assess whether the care provided to you and your baby before he or she was born was appropriate.
Once we can identify that there were shortcomings in the standard of care afforded to you, we then need to obtain expert medical evidence from a neuroradiologist and/or a paediatric neurologist to consider the precise timing of the brain injury. Our expert paediatric neurologist is also likely to examine your child and prepare a report on condition and prognosis.
It may be that waiting for these experts to provide their report is a lengthy process as we try to use experts with particular specialism in these types of cases and as a result they are usually very eminent in their field and have a long waiting list. However, in the case of a very young child this delay can be helpful, as it can help the experts to evaluate what the future is likely to hold. When a child is very young, it is sometimes difficult to predict how the child will develop and what the extent of the disabilities will be.
Assessing the Medical Experts’ Evidence
Once we have obtained the relevant Medical Experts’ reports, we will usually need to assess the medical evidence by holding a meeting with all of the experts involved and a barrister who also specialises in Clinical Negligence. It will be very helpful if you are also able to attend that meeting.
Letter of Claim
Before starting any court proceedings it is necessary to send the Defendant a Letter of Claim identifying our allegations of negligence. The Defendant has 3 months in which to prepare their Letter of Response. This should provide details of their defence if they do not accept that there were shortcomings in the standard of care afforded to you.
Court proceedings
Unless a case can be settled without court proceedings becoming necessary, proceedings will be started in court once we have the Defendant’s Letter of Response. We will have to prepare a Claim Form, Particulars of Claim, which are usually drafted by the barrister involved, a medical report setting out the child’s condition and prognosis and a Schedule of Damages, which is a schedule of past losses and likely future losses, such as the cost of care, aids and equipment, suitable accommodation and lost earnings etc.
Once court proceedings have been started, the court will impose a strict time-table, leading up to trial. The vast majority of cases settle without the necessity for a trial to take place.
