Birth Injury Cerebral Palsy Claims – The Essentials


January 19, 2023 | By David Thomas | ,

January 19, 2023 | By David Thomas | ,

What is Cerebral Palsy?

Cerebral Palsy (CP) is a group of brain conditions that affects movement, balance, and co-ordination, and can be caused by neurological damage to the brain occurring around the time of birth.  It is a lifelong condition and is graded by reference to GMFCS classification levels 1 to 5, with 5 being the most severe.

Neurological damage to the brain around the time of birth or Hypoxic Ischaemic Encephalopathy (HIE) may develop while the baby is descending the birth canal during labour, or the injury may be caused by a lack of care or failure to act in the Neonatal Unit or Special Care Baby Unit (SCBU) in the days or weeks following birth.

Typical features of HIE are usually evident on Ultrasound and MRI scans but normal features do not rule out HIE as a cause of Cerebral Palsy and all the circumstances of the maternity care and birth must be considered by the experts reporting in the case.

Am I entitled to compensation?

Although Hospital NHS Trusts are supposed to be candid and honest when things go wrong, it is not uncommon for Cerebral Palsy to go undiagnosed for several years and sadly, it may never be diagnosed. In our experience, neurological birth injury may erroneously be put down to global developmental delay, or autism and sadly, if the treating hospital happens to be the same hospital where the victim was born, the incentive to properly investigate and act in an open and transparent manner may be lacking, especially in births that occurred before 2014 when there was no such thing as a statutory duty of candour.

If victims of birth injury lack mental capacity or they are aged under 18, their medical negligence claim will need to be brought and conducted by a ‘litigation friend’ on their behalf. They will often be one of the child’s parents, but this is not a requirement. 

Any victim of birth injury resulting in Cerebral Palsy is entitled to substantial compensation, if it can be proved that a healthcare provider breached its duty of care as a medical professional, and that the breach caused or made a material contribution to the claimant’s injury.

Liability may be admitted early on following the hospital Trusts own investigation but often liability will be denied, and the case will have to be proven with the help of independent experts in the professional disciplines of obstetrics, midwifery, neonatology, neuroradiology, and paediatric neurology.

Once liability has been admitted a professional Deputy is appointed to manage the claimants’ financial affairs in their best interests and to facilitate the purchase of suitable property and adaptations such as ramps, lifts, chairlifts, and carer living quarters etc. 

The costs of the Deputy and associated Court of Protection fees can be included in your clinical negligence compensation claim, so you do not need to worry about whether you can afford it.

Of course, the care and assistance you provide is out of love and devotion, but even so, you are still entitled to be properly compensated, if you are coping with the consequences of a serious medical error. These payments can be made from interim payments and/or final damages, subject to Court or Deputy’s approval.

Because success in these types of claims is so heavily expert led, it is crucial that tried and tested experts with experience of appearing in court are used. Switalskis have a data base of such experts, and nothing is left to chance.

How is Compensation Awarded?

The award is broken down into General Damages i.e., pain, suffering and loss of amenity and Special Damages i.e., past losses and expenses and future losses and expenses. A large chunk of the compensation will comprise of future losses for 24/7 care and case management and if subject to a periodical payment order, it is inflation proof and guaranteed to last for the rest of the claimant’s life – Compensation can come in the form of a lump sum payment and/or inflation linked annual periodical payments or a combination of the two.

In addition to compensation, a formal written apology may be provided from the healthcare provider responsible, which can be of great comfort to the family, when finally, failings in care will be formally acknowledged.

If the case involves a child or an adult who lacks mental capacity, the amount of compensation awarded and how it is to be paid must be approved by the Court, even if the parties can agree the terms of settlement. This acts as an extra layer of protection for the benefit of the claimant and ensures the settlement is appropriate and funds are spent responsibly and in the best interests of the victim.

How is Compensation Calculated?

Appropriate compensation is vital in making sure that the victims complex needs are met and that they have a better quality of life than they would otherwise have had.

But it is often difficult to predict how Cerebral Palsy will affect the claimants life expectancy and other outcomes in their early and later years and these questions must therefore be carefully considered by a multitude of independent experts who can assess and cost current and future needs in the areas of care, nursing, accommodation and adaptation needs, case management, aids and equipment, assistive technology, extra holiday costs, vehicle and travel costs, physiotherapy, occupational therapy, hydrotherapy, speech and language therapy, special diet, professional Deputy and Court of Protection fees and private treatment and surgery costs (this is a non-exhaustive list).

Because there is often a range of expert opinion when quantifying these complex and high value cases, the defendants are usually allowed to instruct their own experts and unless any areas of disagreement can be resolved in joint expert meetings, the claimant and defendant’s legal teams will attempt to reach compromise or in rare cases the case will go to court, and the Judge will rule on expert evidence and level of damages. In practise, most Cerebral Palsy cases are settled following collaboration between the parties’ legal teams.

It is generally not advisable to finalise the compensation claim until the claimant is aged 7 at the earliest. This is because the child is still developing cognitively and physically and consequently, it may not be possible to provide a definitive prognosis. However, if liability is admitted, it will be possible to secure interim payments to cover expenses to meet the claimants needs pending final resolution. This can include the cost of purchasing and adapting a suitable property and privately funded 24/7 care and nursing regime.

Can I Afford the Legal Fees?

Because our lawyers and offices are accredited by the Law Society, we are amongst a small number of law firms in England and Wales that can offer public funding in cases where the claimant has suffered a neurological injury in utero or in the 8-week period following birth. Eligibility is based on a merits test and the victims own financial means (parents’ income and capital is ignored).

We can also act under a Conditional Fee Agreement (also known as No Win, No Fee) with legal protection insurance (known as After the Event Insurance) with no upfront fees to pay.

Why Switalskis?

Switalskis Solicitors are passionate about supporting victims of clinical negligence. We do this by ensuring that you have access to first class lawyers, who can demonstrate the necessary skills and expertise which is essential when acting for clients in very complex and high value Cerebral Palsy claims. Many of our lawyers have won national awards for their commitment to fighting for the rights of accident victims and are ranked by the Legal 500 and Chambers & Partners directories. Call us on 0800 138 0458, or contact us to talk to a medical negligence solicitor about your circumstances.

David Thomas

David is a Director and Clinical Negligence specialist. He heads up our new London office. He has over 30 years’ experience acting for claimants and his area of expertise involves complex and high value medical negligence claims with a specialist interest in birth injury cases. Davids profile