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Birth injury cerebral palsy: the essentials

By David Thomas

Published In: Clinical Negligence - Pregnancy and Birth

Cerebral Palsy 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.

newborn baby

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 Unit or Special Care Baby Unit (SCBU) in the days or weeks following birth.

Typical features of HIE are usually evident on Ultrasound and but normal features do not rule out HIE as a cause of 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?

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 ‘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 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?

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?

It is often difficult to predict how 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 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?

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 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. If you'd like to speak to one of our specialist solicitors, call us on 0800 138 0458 or email

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David has worked in the legal sector for over 30 years.  He is a Director in our Medical Negligence team and heads up our London office.

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