Business Plan 2020-21: FCA remains vigilant to potential misconduct
In my last blog, I talked about some of the tell-tale signs for birth related hypoxic brain injury and what might trigger an investigation into the way in which pregnancy, labour or delivery has been managed. The rules on limitation (ie the time limits for bringing a claim) mean that for a child with cerebral palsy, a claim may be capable of being brought many years after the event. This is because with children, the typical three year time limit does not start to run until they turn 18, meaning that they have until their 21st birthday to formally commence proceedings.
Where the person concerned does not have capacity a claim may be brought at any time. It should, of course, be remembered that cerebral palsy involves a wide spectrum of disability and some Claimants will have capacity even though they have a diagnosis of cerebral palsy, and for those Claimants the claim will typically commence before their 21st birthday. Date of knowledge and/or the Court’s discretion may also extend the limitation period.
There are a number of reasons why someone may not pursue a claim in the early years. Typical examples are where treating doctors at the time have given an incorrect, but convincing explanation of what happened, or where parents have been told that it was “just one of those things”. For others, there is simply no time or energy to consider litigation, given the considerable needs of a disabled child. Or there may be only a gradual realisation of the extent of the injuries.
Is the claim out of time?
What are the challenges for those who do wish to pursue a claim, 10 or even 20 years or more after the event?
The first step is to establish whether or not the claim is out of time. For cases involving children who are not yet 21 years old, or who do not have capacity, this is unlikely to be a problem. That said, those who do have capacity and are nearing their 21st birthday will need all work expedited as there are usually significant lead-in times for obstetric and neonatal experts to report.
Those who are over 21 years old and have capacity will need advice on whether date of knowledge or the Court’s discretion may apply to extend the usual time limits.
The question of capacity in itself may not be clear cut, and evidence may be needed to determine this.
The next step is to consider the evidence which a Claimant would need in order to investigate and, if so advised, bring a claim.
There are three main types of evidence in clinical negligence cases: medical records, witness evidence of fact and expert evidence. I will look at each in turn and the impact on each of the passage of time.
Key records in any birth injury claim include the antenatal and labour records. Under the NHS Code of Practice for record management, maternity records (including obstetric and midwifery records) must be retained for 25 years after the birth of the last child. Often, the child’s neonatal records are important in the assessment of the cause and timing of birth injury. The Code requires all types of records for children and young people to be retained until the patient is 25 (or 26 if they are 17 when treatment ends), or 8 years after their death, if sooner. In some circumstances, record may be kept longer still.
In broad terms, then, the passage of time, at any rate for about 25-30 years, should not impact too adversely on being able to investigate and bring a claim as far as this key part of the evidence is concerned. Of course, from time to time, records do go missing, or may be incomplete, but this can occur for recent births too, and there are various strategies which a solicitor would have for dealing with this.
Factual Witness Evidence
The focus here is on facts. What happened? What did witnesses see or hear or do? What do they remember? Each witness of fact is asked to prepare and sign a witness statement setting out their recollections.
For the cerebral palsy Claimant, this will usually comprise the recollections of the pregnancy, labour and birth from mum and dad and perhaps other family or friends too. For the Defendant statements are prepared by the doctors and midwives who were involved at the time. Here, the passage of time can make a difference. Witnesses may simply have forgotten what happened, and when. Witnesses may be impossible to trace, or they may even have died.
My own view is that, depending on the issues in the case, a lack of witness evidence may not make much difference to the ability to investigate and pursue a claim. For the Claimant’s family, certain facts are likely to be indelibly etched on the mind, and many of the facts which they have forgotten may simply not be relevant. For the treating staff, they will tend to see so many patients that there is often very little that they can add to an account beyond that which is in the medical records, whether the birth was two years ago or 20 years ago. Where a treating doctor or midwife cannot be found, there can be no explanation from them of the reason as to why certain actions were taken or not taken. To some extent this can be covered by the expert evidence, but potentially, the lack of witnesses for the defence may make the claim harder to defend. Generally speaking, (although there are, of course, exceptions) cerebral palsy claims tend not to hinge on witness evidence, and a long passage of time may not cause insurmountable hurdles.
Now this area can present some challenges in the “older” cases. Clinical negligence claims involve consideration of the proper standard of care at the relevant time (ie around the time of birth) rather than the standard of care provided today. You will typically need to identify an expert who ideally was themselves already a consultant at the time of the delivery, or in the case of midwifery evidence, a senior midwife. The expert will need to be able to give an authoritative opinion supported by literature which also dates to the relevant time. If the birth was several decades ago, the expert may be nearing retirement or, indeed, may be newly retired. The expert will need to be adept at presenting evidence at the highest level. The pool of suitable obstetric experts is relatively small, and it potentially gets smaller depending on how far back you are having to go.
Expert evidence from neonatology and neuroradiology on the cause and timing of injury is not, however, restricted to the state of knowledge at the time of birth. In this respect, the Claimant may get the benefit of later developments in science and medicine.
In many respects, therefore, the challenges for “older” Claimants, can often be successfully overcome. The oldest cerebral palsy claim which I have dealt with was one in which the Claimant, Soufyan, was nearly 20 years old when his parents sought legal advice. For more information on Soufyan’s story take a look at the video below:
For further information, please contact Bridget Hughes or call our clinical negligence team on 020 7814 1200.
Skip to content Home About Us Insights Services Contact Accessibility