Coronavirus: information and updates

Claiming on behalf of a child

If you are making a claim on behalf of a child with a brain injury at birth or up to 8 weeks old, it’s likely they will be eligible for Legal Aid Agency funding. The child is the claimant, so your finances as parents are not assessed.

Check if you can get Legal Aid (GOV.UK)

Funding a claim

Your solicitor can explain the options for funding the initial investigation and potential claim.

Make sure:

  • your solicitor can help you apply for Legal Aid, Legal Expenses Insurance of a Conditional Fee Agreement
  • you know how the firm will charge you fees
  • you know the likely costs of an investigation and a full claim

If you have legal expenses cover with your house, car or other insurance, check your policy covers medical negligence claims for all householders.

Ask for a claim form as soon as you can, because some policies cover you only within 12 months of an event.

If you are a member of a union, check if you are entitled to legal help for you and your family.

Many firms will offer a Conditional Fee Agreement (CFA). This should ensure there is no financial risk to you if your claim is unsuccessful.

In complex cases, some firms will not apply for funding until they have assessed the medical records. Most of the time, they do not charge for that screening, but it is important to ask.

Stages to funding

There are 2 stages to funding:

  1. The initial costs of obtaining medical records, seeking expert reports and gaining a barrister’s opinion if necessary.
  2. The costs of the various stages leading up to and including a trial if the barrister thinks the investigation should proceed to a claim.

If you have unsupportive evidence, the funder is unlikely to support the next stage, without good reason.

Get a client care letter

You should receive a 'client care' letter. This will set out the fee structure and the firm’s procedures. If you feel unsure about how your case is being paid for or how much the bill is, ask your solicitor for an update. Your solicitor must update you regularly.

Preparing a report

Independent medical experts will use these notes and records, and a statement you give your solicitor, to prepare a report. Those expert reports will either support the claim or say that a claim is not sustainable.

If the reports support a claim, the next stage is to assess its value. This will use further expert reports from therapists and professionals.

By this point, your solicitor will have a view about:

  • whether this was clinical negligence and it caused disability
  • the possible amount of compensation

Evidence

Once you have agreed the source of funding, your solicitor will ask for copies of all the medical notes and records from the hospital and your GP.

These are both obstetric (held with the mother's records) and paediatric (the child's records after birth).

Your solicitor will check to ensure that the records are complete and in proper order. They will instruct independent experts to prepare reports who will need to access the records and radiology. You can also ask for a copy of your records.

Your clinical negligence action

This will look at 3 issues:

  • Breach of duty – whether the standard of medical care was below the expected standards and medical knowledge at the time of the alleged incident.
  • Causation – the link between the breach of duty and the impairment. Did the medical staff’s failures in care contribute significantly to the impairment?
  • Quantum – the amount of compensation based on meeting the needs of the injured person.

Obtaining expert reports

In a birth injury case, the independent experts will usually include:

  • a midwife
  • an obstetrician (a specialist in pregnancy and childbirth)
  • paediatric neurologist (a specialist in children’s neurological disorders)
  • neuro-radiologist (who will interpret scans and radiology and time when the injury occurred and what the injury is)

If the experts report that the medical treatment was to an acceptable standard, there can be no claim.

If they report that the medical treatment was below standard and so there was a 'breach of duty', matters can move forward.

Your solicitor should explain the reports to you in a meeting with a barrister and the experts. They will let you know whether they think you have a case and answer any of your questions.

Capacity

To bring a legal claim in their own name, a person must have the necessary mental capacity. If they lack that capacity or are a child (under 18),  another person can bring a claim on their behalf. This person is known as a 'litigation friend'. A child will need a litigation friend to bring a claim on their behalf. This will usually be a parent, who is responsible for giving instructions in the claim.

The litigation friend will choose and instruct the solicitor, acting in the injured person’s best interests. It is the injured person’s means that will determine whether they qualify for Legal Aid. If not eligible then they will be responsible for applying for alternative funding such as a Conditional Fee Agreement.

Letter of Claim

If the reports support a claim, your solicitor will write a letter called the Letter of Claim to the Defendant or their Solicitor (the person or body against whom you are claiming). This will include details of any likely allegations and the approximate compensation sought.

The defendant will have 4 months to respond, although sometimes will ask for an extension. This response may indicate the likely outcome of legal proceedings and possibly an early admission of liability.

If the defendant admits liability early on, it will avoid the need for a trial on that issue. Many cases are settled out of court, even when court proceedings have begun.

A split trial

Sometimes the trial will be split. Firstly, the trial will consider who is liable. It will consider compensation at a later stage, because:

  • It is difficult to decide the total amount of compensation if a child is still developing and their needs may change.
  • Until liability has been established, it is a waste of legal costs to consider the level of compensation.
  • If a split trial on liability is successful, you can receive an interim payment while the full value of the claim is investigated.

An advantage of a split trial is that it gives certainty.

How long does a negligence claim take?

Making a claim can be a long process. It depends on many things that your solicitor cannot control. These include the availability of experts to report and, where a claim goes to trial, the court timetable.

Settlement can also be delayed if there are unknown factors such as the final medical prognosis. Once liability is settled, it should be possible to agree interim payments to fund support such as care.

How long do you have to bring a claim?

Your solicitor should be able to tell you at your first meeting about the time limits for bringing a claim.

Normally you have 3 years from the alleged injury or date of knowledge of the injury. For a child, the 3 years does not start until age 18, so you may have up to 21 years to bring a claim if the injury happened at birth.

If the injured person has a significant intellectual impairment, whether or not from the injury, the limit of 3 years will not apply. So it's worth enquiring, even if the person is over 21.

It's best to start an investigation as early as possible, while things are likely to be clearer in your mind.

Assessment of damages

If you are successful proving liability, the next stage is for your solicitor to investigate quantum. That means the financial losses because of what has happened.

For a child with a birth injury, there are 3 elements:

General damages

This is the actual injury. It is sometimes referred to as Pain, Suffering and Loss of Amenity. There will be a lump sum payment for the actual injury.

Special damages

These include any quantifiable losses, for example, loss of earnings, care and expenses incurred because of negligence. Experts will quantify future expenses, such as care, equipment, transport, therapy and accommodation.

Costs

Your solicitor will also apply for the costs of the action from the defendants. If you have a Conditional Fee Agreement, you may need to make a contribution, which the Court has to approve to deduct it from the compensation in the case of a child.

Last reviewed by Scope on: 14/09/2021

Was this page helpful?

We're sorry to hear that.

Tell us how we can improve it

Need more help with medical negligence?

Opens in a new windowOpens an external siteOpens an external site in a new window