Can I bring a medical negligence claim for my child?

24 June 2019

Bringing a legal claim on behalf of a child who has been injured because of medical negligence can seem a daunting prospect. 

 

Here we answer some of the first questions that parents have when thinking about bringing a claim for their child.


How does a child bring a legal claim?

Like anyone else, a child can bring a claim for compensation if they have been injured or disabled as a result of negligence, including clinical negligence by hospitals, doctors and other health professionals who have provided them with treatment. 

Children can also bring claims where their injury arose as a result of negligent medical treatment received by their mother before they were born, including events during their birth.  (For example, where a baby is deprived of oxygen during birth and suffers disabilities such as cerebral palsy.)

For practical purposes, when bringing a claim the child will require a “Litigation Friend”.  The Litigation Friend is a person who acts in the child’s interests and manages the claim on their behalf.  As solicitors, we take instructions in the case from the child’s Litigation Friend, who is usually (but not always) one of the child’s parents.

How soon can a claim be brought?

There is no requirement to wait until a child reaches a certain age before bringing a claim.  We are frequently instructed to investigate claims on behalf of babies and young children. 

Are there time limits for bringing a claim?

In respect of medical negligence claims in England and Wales, the usual three year time limit for bringing a claim (described as the “limitation period”) does not begin until the child reaches the age of 18.  There is then a further three years within which the claim can be formally commenced.

However, if the child does not have mental capacity to give instructions in a claim once they reach the age of 18, the limitation period does not start to run (unless they later gain mental capacity) and, so, they can bring a claim at any time.  This is particularly relevant for people who have suffered neurological injury and are unable to manage a claim on their own behalf, even as an adult. 

What happens to the compensation?

If a claim is successful and compensation is obtained by a child, the money has to be protected for them.  In cases where the child is likely to have mental capacity as an adult, it is common for the compensation to be held by the Court and paid to the child once they reach the age of 18.  Applications can be made to the Court to release some of the funds to be used for the child’s benefit in the meantime.

Where a child will not have mental capacity as an adult, a Professional Deputy is usually appointed to manage the child’s funds and make payments out to meet their needs, which can often include: purchasing suitable adapted accommodation, paying carers, obtaining equipment and private therapies.

The Medical Negligence and Private Client teams at Kingsley Napley regularly act for children in clinical negligence claims for compensation and, thereafter, as Professional Deputies managing the financial affairs of children and disabled people throughout their lifetimes.

About the author

Suzanne Farg specialises in clinical negligence and has experience of a wide range of claims including those relating to complex injuries (such as neurological damage and cerebral palsy) and claims against private healthcare providers.

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We welcome views and opinions about the issues raised in this blog. Should you require specific advice in relation to personal circumstances, please use the form on the contact page.

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