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If your child or teenager has autism spectrum disorder (ASD) or attention deficit hyperactivity disorder (ADHD) and needed ‘cooling’ after their birth, their condition could be the result of a birth injury. If the injury and need for ‘cooling’ was caused by mistakes in the care that the mother or baby received, your child may be able to claim compensation.
Children and teenagers with ASD or ADHD caused or exacerbated by hypoxic injury to their brain around the time of birth may have difficulties which affect their ability to learn, work, socialise and be safe around others, or live independently in adult life.
An ASD/ADHD compensation claim can help provide the necessary support to enhance the child’s development and the teenager’s growing independence, reducing their vulnerability whilst enabling them to live fulfilling lives.
Autism is a developmental disability which affects around 700,000 adults and children in the UK. Autism affects people in different ways and to different degrees across a wide spectrum, which is why it is sometimes called autism spectrum disorder or ASD.
Common challenges associated with autism or ASD include difficulties in communication, social interaction, patterns of behaviour and flexibility of thinking. Some children with autism also have sensory difficulties (hypersensitivity to noise or touch), problems with coordination and learning disability.
Attention deficit hyperactivity disorder or ADHD is a neurodevelopmental disorder that affects 2.6 million adults and children in the UK. Children with ADHD are often restless or hyperactive, or have difficulties with concentration and attention, and may act on impulse without first thinking about the consequences of their actions. Some people with ADHD may also have anxiety, problems with sleeping, and learning difficulties.
Until recently most doctors believed that autism/ASD/ADHD were caused mainly by DNA sequencing and were primarily genetic conditions. In recent years, medical and scientific understanding of the causes of ASD / ADHD and other neurocognitive disorders has moved on and continues to develop rapidly.
Recent scientific studies have identified that other factors can also influence why some family members develop ASD / ADHD traits, whereas other members of the same family with very similar DNA do not. In some cases, the difference is a birth injury.
Many doctors and medical scientists now believe that that a hypoxic injury to the baby’s brain around the time of birth can trigger autism and/or ADHD in children who would not otherwise have developed the condition, or would have had it more mildly, despite any genetic predisposition.
This means that some children only develop autism/ASD or ADHD traits because of a birth or neonatal injury to their brain. A lack of oxygen (hypoxia) around the time of birth, a stroke or a severe infection affecting the newborn baby’s brain can all cause a child to develop ASD / ADHD traits later in their childhood or teenage years.
If the injury was caused by medical or maternity negligence, the child can make an ASD/ADHD birth injury compensation claim.
Hypoxic birth injury is damage to the brain that is caused by a lack of oxygen, such as during delays in delivering a baby with heart rate abnormalities or fetal distress.
This kind of birth injury is also known as birth asphyxia or hypoxic ischaemic encephalopathy (HIE). It causes severe and often permanent damage to the baby’s brain and is commonly associated with severe disability and cerebral palsy.
Hypoxic birth injury is often treated by whole body cooling, ideally within six hours of birth.
For many years, the NHS has routinely treated newborn babies who have suffered hypoxic ischaemic encephalopathy (HIE) during their birth with therapeutic hypothermia or ‘cooling’.
Babies who have suffered moderate or severe HIE from lack of oxygen during birth are at risk of developing permanent disability. Cooling can significantly reduce that disability but it must be started as soon as possible and no later than six hours after the birth, and very carefully managed to safely cool the baby’s body temperature to between 33.5° and 34.5° C for a period of 72 hours.
Cooling reduces brain swelling and intracranial pressure, slows down brain cell metabolism, reduces the damaging compounds released by the brain cells after a hypoxic event and increases the repair of brain cells, reducing the extent of the damage to the developing brain.
For many babies with severe neonatal hypoxia, cooling has prevented the severe physical disability or cerebral palsy that could be expected from their brain injury, enabling them to meet their milestones and develop physically with only minimal (or no) obvious disability. However, over time, it has become evident that some of the children who avoided severe physical disability from their birth injury as a result of their neonatal treatment with cooling later develop attention and behavioural problems which are diagnosed as neurocognitive disorder such as autism or ADHD. It is possible that before cooling treatment was available, in most cases the link between children’s birth injuries and their later development of autism/ADHD was not recognised because many of the ASD/ADHD traits that might have been caused by their birth injury, such as difficulties with communication, were masked by their severe physical disability.
Scientific understanding of these conditions is still developing but currently our medical experts advise that unless there is strong evidence to the contrary, the ASD/ADHD traits which develop in later childhood and teenage years can be attributed to the child’s hypoxic birth injury.
Babies who have had other types of brain injury, such as from a stroke or meningitis, can also go on to develop ASD/ADHD or similar neurodevelopmental and neurocognitive disorders which severely affect their development and behaviour.
If your child has autism or ADHD and needed cooling after their birth, their condition may have been caused by a hypoxic birth injury or neonatal brain injury.
If the brain injury was caused by negligent mistakes in the maternity or neonatal care, your child could be entitled to substantial compensation.
Parents and families of babies who have received cooling after hypoxic birth injury or HIE may not be warned about their child’s risk of neurodevelopmental disability from autism spectrum disorder (ASD) or ADHD later in childhood or teenage years.
If your child was cooled following a birth injury and you are concerned about autism or ADHD, you should contact us for free, confidential advice as early as possible.
Compensation from a birth injury ASD/ADHD claim ensures that the child or teenager has the necessary support to meet all their additional needs arising from their neurodevelopmental disability.
The type of help and support that can be provided, and the difference that compensation can make, depends on their age and state of development when we start the claim. The sooner the family come to us, the greater the difference we can make to their child’s development and their ability to live independently in later life.
Each child or teenager’s condition and its impact on their life will determine their individual needs and the help that can be achieved from their compensation. In most cases, the claim will include provision for a case manager to work with the family to coordinate the care, supervision and support that the young person needs now and throughout their life to be active and participate in a way that is safe for themselves and others around them. Ultimately, this could mean living semi or fully independently in their own or their family’s home or in supported residential care.
For younger clients who come to us earlier in childhood, compensation can help pay for:
For teenagers and young adults, additional help is aimed at reducing the impact of their vulnerability:
Depending on the extent of any additional physical disability or learning difficulties caused by their birth injury, the claim may also include compensation for:
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Nov 2023
Medical negligence is when a medical professional, such as a doctor, midwife, or nurse, or other healthcare practitioner is negligent if they act in a way that falls below any acceptable standard of care.
If someone is injured as a result of medical negligence, they are entitled to compensation for any injury that was caused and for the financial consequences of that injury.
Medical negligence claims that involve severe injury and disability should always be handled by specialist medical negligence solicitors. It takes experience and skill to successfully prove that medical negligence has caused a patient’s injuries, and to secure the highest levels of compensation.
Anyone who has suffered serious injury or disability as a result of negligent NHS or private medical care can make a medical negligence claim for compensation. Special rules apply to children, adults with mental incapacity, and claims arising from a fatal injury/someone’s death.
Children and teenagers under the age of 18, or anyone with mental incapacity, must make their claim via a ‘litigation friend’. This is usually a parent or guardian in the case of a child, or a partner or other adult family member in the case of an adult with mental incapacity. The solicitor handling the claim takes instructions and works closely with the litigation friend whilst ensuring that decisions are made in the best interests of the child or mentally incapable adult who is making the claim. You can find out more about making a claim for a child.
Some important decisions, such as agreements to settle a child or mentally incapable adult’s claim, must be approved by the court. Arrangements must also be made to safeguard the child or mentally incapable adult’s compensation, whether from an interim payment, lump sum settlement or agreed future payments. Depending on the claimant’s circumstances, this may be done by paying the money into a Court Funds Office account until the child is 18, by appointing a Court of Protection deputy or setting up a personal injury trust. You can find out more about Court of Protection deputyship and personal injury trusts.
If the claim is for bereaved family members and dependants after medical negligence caused someone’s death, the claim must be made by the deceased’s personal representative (executor or administrator of their estate) on behalf of all who are entitled to compensation as a result of the death. You can find out more about making a fatal injury medical negligence claim here.
The NHS has a responsibility to provide its patients with a safe and acceptable level of care. If a patient is seriously injured or their condition is made significantly worse as a result of negligent NHS care, the patient may be entitled to claim compensation.
Compensation can help meet the costs of care, therapies, equipment and home adaptations that are needed when an NHS mistake causes injury or disability that permanently affects the patient’s life.
We are experts at helping clients receive the compensation they deserve from the NHS. We understand the concerns that patients and their families sometimes have about claiming against the NHS. You can read our answers to many of the most common questions on our NHS claims page or speak to one of our solicitors about your own claim by contacting us.
Whilst we cannot guarantee that any particular claim will settle out of court, we take great care in investigating and preparing each claim that we take on. Our clients’ claims usually settle successfully without the need for a contested trial.
Occasionally, cases can only be concluded by a formal court hearing, such as where:
Where our client’s claim is complicated by any of the above, we may advise our client that for the case to proceed, it must go to a court hearing. Our caring and highly experienced medical negligence solicitors and barristers ensure that our clients are always kept informed and supported.
Even in non-contested cases, there will be occasions when the case is brought for shorter hearings before the court, such as after a settlement for a child or brain injured adult without mental capacity takes place. In these cases, the lawyers for both sides present the agreed settlement to the court for the judge’s approval.
Each claimant’s compensation is calculated in accordance with mandatory rules based on their individual circumstances.
Compensation for medical negligence should put the injured person back in the position that they would have been in if the negligence hadn’t happened, in so far as money can.
In a medical negligence claim, the amount of compensation depends on:
Compensation for medical negligence usually includes a sum for the injury, and sums to compensate for financial losses and the cost of meeting the needs that arise from the disability.
Our medical negligence solicitors ensure clients receive their compensation in the way that is best suited to meet their needs.
Depending on our clients’ injuries, individual circumstances and needs, we can recover compensation to pay for:
Where medical negligence caused someone’s death, compensation may be claimed by the deceased’s dependants and on behalf of the deceased’s estate. Compensation in a fatal injury medical negligence claim can be paid for:
There are three ways to fund a medical negligence claim, legal aid, no win no fee, and legal expense insurance.
A medical examination is usually needed to assess our client’s injury. Where our client has suffered multiple injuries or both physical and psychological injuries, they may need to be examined by specialists in each area. This is important to make sure that our client’s injuries are fully assessed and understood, so that they can be properly compensated.
If a medical examination is needed, we instruct the specialist and make the arrangements. We ensure that they have access to our client’s medical records and are aware of the background to the claim. The hospital or doctor against whom the claim is being made may also ask for our client to be examined by their medical expert.
The law states that, in most cases, someone who has been injured as a result of medical negligence has three years from the date of the negligence which caused the injury to issue court proceedings. If they fail to issue court proceedings within that time, their claim will be statute barred, meaning that they lose their right to bring a claim.
There are the following exceptions to the three-year rule:
Regardless of your time limit, we recommend that you contact our medical negligence solicitors as soon as you can, even if at that stage you are only considering whether to make a claim.
By contacting us early, it avoids later problems with deadlines and allows us to advise you on how to collect and preserve essential evidence. This enables us to ensure you have the best chance of securing your entitlement to full compensation for your claim.
If a baby, child, or teenager under the age of 18 makes a claim for compensation for injuries caused by medical negligence, their claim is made on their behalf by a ‘litigation friend’. This is usually a parent or guardian.
As the child’s solicitor, we have a responsibility to make sure that all decisions relating to the claim are made in the best interests of the child. To do this, we work very closely with the child’s family. Some important decisions, such as settlement agreements or the amount of money that is allocated to a child in a claim involving more than one claimant, must be approved by the court.
We are specialists in helping families obtain full compensation for children who have been very severely injured, leaving them with permanent disability and lifelong specialist needs. Our expert children’s claims service includes a dedicated Court of Protection team who help our clients protect, budget and access their compensation via deputyship and trusts, and an SEN team to ensure that their special educational needs are met. Find out more about how we help families, children, and teenagers with children’s claims.
If you think that you or a family member have received negligent medical treatment or have experienced malpractice, we recommend that you speak to one of our friendly, experienced clinical negligence claim solicitors as soon as possible.
You can contact us by telephone or by email. Your enquiry will be handled confidentially and preliminary advice in relation to pursuing a claim will be given free of charge.
Our medical negligence solicitors will ask you to tell us briefly what has happened, advise you about the limitation deadlines (time limits) which apply to your claim and whether we are able to help you investigate your claim.
Once our initial investigations have taken place, we will notify the defendant (hospital or doctor) of your intention to pursue a claim and invite them to respond, giving them an opportunity to admit liability, before court proceedings are issued.
If liability is admitted, we will enter judgment and apply for an interim payment as soon as possible to meet any urgent needs that you may have as a result of the negligently caused injury.
If liability is disputed, we will discuss with you the further steps that we need to take to progress your claim.
Our extensive guide on making a medical negligence claim explains the whole process, if you require any further information.
The duration of a medical negligence claim depends on the individual circumstances of the client’s case. The claim is likely to take less time to conclude where:
Circumstances which make the claim more complex and therefore take longer to resolve include:
Our medical negligence solicitors work hard to secure early admissions of liability and substantial interim payments so that we can begin to alleviate financial hardship and provide essential care, respite, specialist equipment, therapies and home adaptations long before the claim has settled. With liability judgments secured and interim funds in place, the individual and their family are able to focus on rebuilding their lives whilst we concentrate on valuing and negotiating settlement of the claim.
Compensation is carefully structured to ensure the best provision for the injured person’s needs. Our clients often benefit from different types of compensation, including:
Where healthcare is found to be (legally) negligent, then the claimant (the person making the claim) must prove that their injury was caused or significantly worsened by the negligent care.
This is important because the patient may already be very ill when they receive negligent medical care. In those circumstances, they must prove that their injury (and its financial consequences) would have been avoided or greatly reduced if correct treatment had been given. This aspect of the medical negligence claim is known as ‘causation’. Causation must be proven, even if negligence is admitted, for the claim to succeed and compensation to be awarded.
Negligence and causation must be proven by supportive opinions from medical experts. We instruct experts in the same field of medicine as the negligent care to tell us whether the care that was given was of a reasonable standard. If negligence is proven, we ask medical specialists in the type of injury suffered, to confirm whether our client’s injury was caused or made worse by the negligent treatment, or would have been reduced or avoided with correct care.
In a medical negligence claim, compensation will only be paid for injuries and loss that we can prove were caused by the healthcare provider’s negligence. Once we know what mistakes were made, the next step (causation) is to identify the extent of the injury or disability that was caused by those mistakes.
Proving causation in complex medical negligence cases requires both medical expertise and understanding of the law. We often succeed in claims where NHS Resolution (the NHS’ defence organisation) has denied ‘causation’. You can read more about how we overcome difficulties with causation in complex birth injury cases.
Our medical negligence and personal injury teams have been nationally recognised for over 20 years because of their expertise, empathy and commitment to securing maximum compensation for our clients.
This has been a horrendous time for us, losing our daughter and then losing her husband but Boyes Turner have been our rock through it all and helped us to carry on and take care of our daughter’s two girls. They were very understanding and professional.
