These claims can take a long time to reach a conclusion and can be highly complex. Whatever the journey, we aim to make the process as easy as possible. We have been successful in bringing claims on behalf of injured children for over 25 years.
Families frequently contact us when they believe there has been a problem before, during or after the birth of their child which has resulted in injury.
If you are concerned that your child may have been harmed because of medical negligence, please contact us to discuss how we can help.
You might have concerns about your child’s development or questions about the standard of the medical care you and your child have received. Alternatively, you may already be coming to terms with the significant impact of caring for a child with a serious diagnosis or injury.
You may have been told that your child suffered hypoxia (lack of oxygen) at birth or they may have needed therapeutic cooling to lessen the possibility of brain injury. The hospital trust may have carried out an internal review or investigation as part of the Patient Safety Incident Response Framework, there may have been a referral to the Maternity and Newborn Safety Investigations (MNSI) programme or you may have received a letter relating to the Early Notification Scheme. In any of these instances it is vital to obtain legal advice.
We can provide guidance in all of these situations.
The Early Notification Scheme (ENS) is run by NHS Resolution (the body which deals with legal claims against the NHS) and is backed by the government with the aim of proactively investigating brain injuries identified at the time of birth and to consider whether negligence played a part in causing the harm. The scheme was created, in part, to improve the time taken to investigate traditional medical negligence claims for birth injury, to reduce legal costs, improve the process of obtaining compensation, and importantly to support improvements in maternity care.
At Kingsley Napley, we have helped many families whose cases have been referred through the ENS. More information about the scheme can be found in our blog.
Hospitals (who are members of the Clinical Negligence Scheme for Trusts) are required to inform NHS Resolution of maternity incidents which meet certain clinical criteria. These include where a baby of at least 37 weeks has sustained a potentially severe brain injury (sometimes referred to as an hypoxic brain injury) which has been diagnosed in the first seven days of a baby’s life. This baby may have been therapeutically cooled, or diagnosed with moderate to severe hypoxic-ischaemic encephalopathy (HIE) and at least one other feature of damage such as abnormal reflexes, or seizures.
If the appropriate criteria are met then the incident will be investigated under the ENS and these babies will also be reported to the Maternity and Newborn Safety Investigations (MNSI) programme (which began nationally in 2018) and which looks into intrapartum stillbirths, early neonatal deaths as well as severe brain injury cases and maternal deaths whilst pregnant or within 42 days of the end of the pregnancy.
The MNSI programme (unlike the ENS) does not carry out investigations from a legal perspective and its main purpose is to identify learning both locally and nationally to improve maternity safety.
If the ENS investigation finds that there was negligence (unacceptably poor care) which caused injury to the baby then this should be admitted by NHS Resolution and their appointed solicitors should work with firms like ours to ensure the correct level of compensation is paid. NHS Resolution will instruct their own solicitors to advise them about how much the claim is worth and the amount of compensation that should be paid.
Claims for children with brain injuries are complicated and it can take many years before the full extent of the disabilities become clear, and the future needs can be accurately estimated. Evidence is usually required from a wider range of experts. The cost of providing for and meeting the child’s lifetime requirements will then be estimated, including their care needs, medical costs, therapies, equipment and their accommodation needs. This process requires obtaining a vast amount of information and it is essential families have their lawyer by their side to explain the process and to guide them every step of the way.
Primarily, NHS Resolution is advised by its own solicitors, and families will not be on a level playing field if they do not have their own legal advice about the appropriate level of settlement for their child. An independent solicitor will be able to help you to navigate the whole process and ultimately negotiate with NHS Resolution to obtain the best possible outcome for the injured child.
Importantly, even if a case is not considered to have met the criteria for being investigated under the scheme, or an investigation states that there was no negligence, independent legal advice should still be sought in certain situations because sometimes a legal claim can still be made.
The term cerebral palsy (CP) is used to describe conditions affecting movement, coordination and sometimes cognitive impairment typically caused by damage to the brain, either at or around the time of birth, or as a result of a later brain injury.
Brain damage that results in a diagnosis of cerebral palsy can arise in a variety of different ways and, sadly, medical mistakes around the time of birth can be the cause.
Ways in which cerebral palsy may be caused by medical negligence include:
When bringing a birth injury claim, we will help you to investigate the management of your antenatal care and the birth, with the assistance of independent medical experts. The purpose of the investigation is to consider whether the child has sustained serious injury as a result of negligence. If negligence can be established, then compensation can be claimed to meet the child’s lifelong needs arising from their disability.
We recognise that children who have been injured at or around the time of their birth will very often have significant care needs. These needs can rarely can be wholly met by the Local Authority/NHS Services. It can also be many years before the full extent of a child’s disability become apparent. We leave no stone unturned in terms of our investigations in order to achieve the maximum level of compensation for every child for whom we act.
Wherever possible, once liability is admitted, we will advise on the option to seek interim funds (called interim payments) to enable early interventions and rehabilitation which would not otherwise be available on the NHS.
Financial settlements and interim payments often include funds to pay for:
We tailor the package of compensation to each child’s needs, so that they will have the resources they need to participate in everyday activities and to lead their best and most fulfilled lives.
Every case is led by a partner with assistance from our experienced lawyers. We understand the devastating impact upon families where there has been an injury to a baby and aim to provide a sensitive and supportive service. We can visit you at home or in the hospital to discuss your claim.
When your child’s case settles we will also provide tailored advice as to how best to structure the award of damages (compensation payment) which may take the form of a lump sum, plus additional annual periodical payments (PPO’s) to provide guaranteed, indexed linked, additional annual amounts for the duration of the child’s life however long that may be. Typically these annual amounts will be paid for the provision of care, but can also provide for therapies.
To help with managing large financial compensation awards we also work closely with our own specialist Court of Protection Team who can advise on how to protect an award of damages, and with any matters requiring Court of Protection input.
Our lawyers are recognised by the Legal 500 and Chambers directories as specialists in clinical negligence cases. Our team includes lawyers with specialist clinical negligence accreditations from Action against Medical Accidents (AvMA) and the Law Society.
For a further insight into bringing a claim for birth injury see cases we have acted in and our Guide to Making a Claim.
Often brain injury which occurs during birth results from the baby being deprived of oxygen (sometimes described as hypoxia or asphyxia). Brain damage caused by a lack of oxygen may be referred to as hypoxic ischaemic encephalopathy (HIE).
After birth, signals that something’s wrong may include: poor APGAR, poor tone, seizures (or grunting) in the neonatal period, abnormalities on a brain scan, or failure to meet developmental milestones later on.
In England and Wales, if a child is injured by negligence (including negligence that happened prior to or during their birth), they usually have until their 21st birthday to formally begin a claim at Court.
There are exceptions to this rule. If someone does not have ‘mental capacity’ to bring a claim as an adult there is usually no time limit. If they gain mental capacity at some point during adulthood, they will have three years from that point to begin their claim.
In rare cases, it may be possible to argue that the time limit should not be applied for an adult, even if they have mental capacity (although this is unusual).
It takes time to investigate a claim and, therefore, we advise that you contact us at the earliest opportunity; when all of the evidence is still available and the events are fresh in your mind.
However, we also consider older cases and have previously succeeded in claims for adults who were injured during their birth.
If a child (or an adult who does not have mental capacity) is injured by negligence, a family member or other trusted person can act as a ‘Litigation Friend’ and bring the claim on their behalf.
Usually claims relating birth injury are brought by one of the child’s parents, who take on the role of ‘Litigation Friend’.
We start by obtaining evidence including medical records, witness statements and expert evidence to prove that the child’s disabilities were caused by medical negligence.
We also calculate the amount of compensation that can be claimed. Typically, this involves instructing experienced experts to advise on all aspects of your child’s needs, in order to maximise the level of compensation. We then try to reach a financial settlement with the Defendant (the organisation or individual legally responsible for the negligent care).
In some cases settlement is agreed at an early stage. In other circumstances, it may be necessary to begin Court proceedings.
For further information on this process, read our Guide to Making a Claim.
Yes. Where the birth or other negligent medical treatment occurred through the NHS, the claim is generally brought against the responsible NHS organisation (such as the Hospital Trust or Primary Care Trust).
Where the treatment was privately funded, the claim is often brought directly against the private hospital, or the private medical practitioner, that provided the treatment. Hospitals and private practitioners are typically insured or indemnified for negligence claims.
Probably not. The vast majority of medical negligence claims are not decided by the Court. Successful claims are usually resolved through agreement of a settlement either before or during Court proceedings. Occasionally, the Court will decide a case, if it cannot be resolved any other way.
Where the claim is for a child, or for an adult who does not have mental capacity, the Court will be asked to consider and approve the settlement. This is a safeguard required under the Court rules to ensure that the settlement is in the best interests of the injured person.
If medical negligence was the cause of your child’s disabilities, bringing a claim can secure substantial compensation to meet their needs throughout their lifetime. Having the funds to buy-in additional support can be transformative. Local authorities have limited budgets and many specialist therapies, such as neurophysiotherapy can be denied to children by the NHS.
There are a lot of resources available to empower disabled people and allow them to live life fully. However, this often costs more than for non-disabled people. A claim can secure the funding for life enhancing care, specialist equipment, support with education, adapted accommodation and therapies. It can also provide long-term financial security for someone whose ability to work is affected by their disabilities.
If compensation is obtained for a child who is unlikely to have ‘mental capacity’ to manage their financial affairs as an adult, a professional ‘Deputy’ is usually appointed. The Deputy will manage the compensation, on the child’s behalf, and act in their best interests. They will liaise with the family and release funds to ensure that the child’s needs are met in an appropriate way.
See Kingsley Napley’s Court of Protection and Deputyship page for further details about the role of a professional Deputy.
If the child is likely to have mental capacity as an adult, then the Court will usually hold the funds until the child is 18. Prior to that, funds can be released to meet the child’s needs.
Medical negligence claims typically involve detailed investigation and expert evidence. They often take a number of years to resolve.
Our approach is to seek an admission of liability (i.e. confirmation that negligence occurred and caused injury) as early as possible in the process.
When liability is established, the Defendant usually has to pay part of the compensation immediately. This allows your child’s needs to begin to be met from the compensation, while the work to quantify the full amount of compensation continues.
The Early Notification Scheme (ENS) can investigate where a baby suffers an injury at birth. We may be able to help you if your child’s case is being investigated under the ENS and we are experienced with this.
Conditional Fee Agreements (known as ‘no win, no fee’ agreements) are the most common way that the medical negligence claims we undertake are funded. This gives clients the reassurance that they will not (in almost all cases) have to pay any legal costs in the event that they are not successful with a claim. We will explain all possible funding options with prospective clients including Legal Aid (only available in limited circumstances) and insurance policies in addition to ‘no win, no fee’ agreements.
Please see our page on How are claims funded?
Medical records are usually the starting point for our investigation of a claim. With your permission; we request these records directly from the treatment provider(s).
Our clients sometimes wish to obtain copies of their birth notes and their child’s medical records themselves, before deciding whether to begin a claim. Please see our Guide to Accessing Medical Records for further information on how to request records.
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Types of birth injury, cerebral palsy and paediatric claims we help with:
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Sharon Burkill
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Kirsty Allen
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