Boyes Turner’s birth injury lawyers recently secured full compensation for two children with cerebral palsy whose families had previously been advised by their solicitors to abandon their claims. Both families contacted us for a second opinion several years after their claims had been closed. In both cases, our specialist re-investigation of their claims led to successful settlements providing the severely injured children with lifelong financial security. When you contact a solicitor for advice about making a birth injury claim for a child with cerebral palsy or neurodevelopmental disability, you rely on the solicitor’s assessment of the strength and weaknesses of your case based on available information, the current state of the law and medical knowledge relating to your child’s condition, and the experience and expertise of that solicitor. Many of these circumstances change over time and additional insight from an experienced birth injury solicitor can result in a fresh approach to a previously abandoned or rejected claim. So, when is a ‘no’ not a ‘no’? If any of the following circumstances could apply to your child’s case, maybe it’s time to seek a free, confidential second opinion from our specialist birth injury solicitors. Were you properly advised about your choices in labour? Recent case law has emphasised that the principles governing informed consent during medical treatment apply to maternal choice during childbirth. Doctors are required to give the mother details of reasonable alternative treatments, so that she can make informed choices about her care. Her right to make informed choices is not changed or diminished by being in labour, such as having the choice between continuing with a difficult labour to see if a normal delivery can be achieved or opting for delivery by caesarean section. If both options are reasonable alternatives for the circumstances of her care, then both should be offered to the mother, so that she can decide. The recent case law has made clear that this shift from paternalistic medicine to patient autonomy and choice is not a new development. Maternal informed consent and choice in labour applied to births which took place as far back as 1996. Read more about Susan Brown’s case of CNZ -v- Royal United Hospitals Bath NHS Foundation Trust in which she secured a $45 million settlement for a young woman with severe disability from cerebral palsy caused by birth injury after her mother was initially denied a caesarean section during difficulties in labour. Could new medical understanding help prove ‘causation’ in your child’s birth injury claim? If your child’s claim was abandoned or rejected owing to difficulties with proving that their condition was caused by negligent maternity or neonatal care (medical causation), recent developments in medical understanding could open the way for a successful claim. Unlike breach of duty (negligent actions or omissions), which is judged according to the accepted standard of care at the time of the treatment, causation is proven with the help of medical expert opinion based on what is known now about the causes and development of the child’s brain injury and disability. This means that, even though the factual birth history has not changed since you were advised to abandon your claim, a new investigation would be based on updated medical knowledge which could help you prove causation. In recent years, we have used ‘state-of-the-art’ medical expertise to help many families prove causation in successful claims which involve: cerebral palsy and neurodevelopmental disability from periventricular leukomalacia (PVL) and premature birth; neurodevelopmental and behavioural disability from autism, ASD or ADHD in childhood or adolescence arising from hypoxic birth injury (HIE) which was apparently cured by cooling; apparent full recovery from mild HIE birth injury, with later development of learning disability requiring support for special educational needs (SEN). Could recent developments in the law help you re-open your child’s cerebral palsy birth injury claim? Recent developments in the way the courts approach birth injury claims now make it easier for us to obtain compensation for severely disabled children in complex cases. This means that where a child’s brain injury arises from a combination of non-negligent and negligently caused problems during pregnancy and birth their claim no longer fails if it is not possible for medical experts to separate out the functional disability that was caused by the negligence from the disability that arose from non-negligent causes. For example, an unborn baby may suffer chronic partial hypoxia (oxygen deprivation) as a result of a problem which occurred naturally in the later stages of pregnancy, but negligent delays in delivery then result in an additional acute profound period of hypoxia in the final minutes before birth. As long as the negligent injury has caused at least some significant functional disability, the child is entitled to compensation for 100% of their birth injury disability. You may hear this legal approach to compensating these types of complex claims described as material contribution for indivisible harm or injury. In addition, Susan Brown’s recent case of CNZ -v- Royal United Hospitals Bath NHS Foundation Trust helped further clarify the court’s approach to compensating children whose disability was caused by acute profound hypoxia in the minutes before birth, ensuring that every minute of hypoxia suffered is now assumed to count towards the causation of their cerebral palsy disability. Can I ask for a second opinion from a specialist birth injury lawyer after a rejected or abandoned claim? If your child has cerebral palsy or neurodevelopmental disability which could have been caused by mistakes and failings in maternity or neonatal care, we always recommend that you seek free, confidential advice from our specialist birth injury lawyers, even if your claim has been rejected or abandoned elsewhere. Your child could be entitled to substantial compensation which could help pay for an adapted home, therapies and essential help with care. Our client families come to us at all stages of their children’s development, ranging from immediate concerns in the neonatal (newborn) period to teenage and young adulthood, when the impact of their disability on their future life is becoming clear. An experienced specialist solicitor with proven expertise and understanding of birth injury can often provide greater insight into the best route for a successful claim. Our solicitors often succeed in ‘second opinion’ claims owing to our experience in complex cases, our strategic approach to claims and our robust challenge to denials and defensive tactics by NHS Resolution. Our close working relationship with our clients’ families and our trusted independent experts also results in higher and more individually tailored compensation settlements. What is the time limit for seeking a second opinion in a cerebral palsy birth injury claim? You can seek a second opinion and new investigation of a potential cerebral palsy birth injury claim from our birth injury lawyers as long as court proceedings in the case have not previously been issued and then discontinued or lost at trial, and the limitation period has not expired. Where the young adult does not have mental capacity, the usual limitation deadline (21st birthday for a child) does not apply. In rare cases where a severely injured child’s claim has failed or has been significantly under-compensated as a result of negligence by a previous solicitor, we can advise on whether the child could still be entitled to compensation via a professional negligence claim. If your child has cerebral palsy or neurological disability as a result of medical negligence, or you have been contacted by HSSIB/MNSI or NHS Resolution, you can talk to a solicitor, free and confidentially, for advice about how to respond or make a claim by contacting us.
