Enable Law take a look at having to be your child’s voice when you don’t know what questions to ask.
Our client journeys
Being told your child has a disability will be very daunting. There is an awful lot that you will have to learn, new difficulties to deal with and worry for your child’s future. Having to be your child’s voice when you don’t know what questions to ask or who to turn to for help can be overwhelming.
We have created a guide setting out some helpful questions to ask your child’s doctor when they are first diagnosed with Cerebral Palsy We also have a guide to the questions to ask your child’s Occupational Therapist which you may find useful.
If you also have concerns regarding the medical treatment provided (either during pregnancy or following delivery) and whether this caused your child’s disability, it adds an even greater level of complexity.
In this article, we show you the journey our clients take from the time they first speak with us, through to a successful settlement and beyond. Unfortunately, there are a number of different outcomes which can arise when investigating claims and not all cases will be successful. For the purposes of the article we have assumed that the evidence is supportive of a claim and admissions regarding the treatment are made.
The initial call
People often find making the first call to a lawyer to be daunting. It might be the first time you have had to seek legal advice and you won’t know what to expect, what information you need to give, or what the process involves. Solicitors know how difficult the first call is and they will take you through the questions needed to help you with your claim.
One of the most common questions is how investigations can be funded. Most specialist medical negligence firms can offer no-win, no-fee funding arrangements and in certain cases you may be able to use the Legal Aid system for funding.
Expert evidence
Part of investigating the medical treatment you/your child received involves the opinion of medical experts. These experts will be carefully chosen to ensure they have the correct expertise and experience to report.
The first part of our investigations will focus on liability (i.e. whether the treatment was ‘negligent’ and, if so, whether this is likely to have caused your child’s disability). The experts will be instructed to review your child’s medical records (and mum’s maternity records if there are concerns regarding the care she received) and a witness statement from you setting out your recollection of events. The experts will be asked to comment on the standard of care which you/your child received and whether this met an acceptable standard. If they consider the care was substandard we then obtain expert opinion on whether it was more likely than not that this substandard care caused your child’s injury.
If the experts are supportive then we will put forward our allegations to the Defendant and request their formal response.
If the Defendant admits that the care provided was substandard and that this has caused your child’s disability, our job is then to investigate the impact this injury has and will have on your child and your family in the future.
If admissions are made, we can request an interim payment of damages. This is an early payment that can help to set up some of the therapy/care/adaptations your child requires before a final settlement is agreed. This will hopefully alleviate some of the financial pressure felt when trying to support a child with additional complex needs.
If the Defendant denies that they were responsible, this can also be very difficult to hear. This is when it becomes essential to have the support of our experts in continuing your claim. If they still agree that avoidable negligence took place, we can continue to fight for the answers and financial compensation you need.
To investigate the impact your child’s injuries will have upon their life, both now and in the future, we again refer to independent medical expert opinion. The medical experts will meet with your child to assess their needs and some of the areas covered by these appointments include care, occupational therapy, physiotherapy, speech and language. The number of experts required will depend on the nature and severity of your child’s injuries. The purpose of these assessments is to build a picture of your child’s current condition, future prognosis and what they need to enable them to be as independent as possible for the rest of their life.
The expert evidence lets us put a financial value on what the treatment, support, therapies, care, adapted accommodation and equipment will cost for the rest of your child’s life. Your solicitor will calculate all the expenses you have incurred as a result of your child’s injuries and the cost of all their future needs. A Case Manager can be recruited to put in place the therapies and any care regime that has been recommended by the experts. Clients often comment that with this additional help, they feel as though they can focus on and enjoy being a parent again with some of the additional stress of juggling therapies, appointments and being a full-time carer taken care of.
What comes after settlement?
There are several ways that a case can be resolved. The most common is by a Settlement Meeting. This is a meeting of both parties’ legal representatives to go through the strengths and weaknesses of each other’s cases. A lot of cases settle in this way. However, there are some cases which proceed to trial. When this happens a Judge will listen to evidence given by both parties’ medical experts and then decide on whether the case succeeds and how much compensation should be paid.
A financial settlement is likely to be made up of both a lump sum of money (which can be used, for example, to purchase a suitably converted property) and “periodical payments” (which provide an annual amount for the whole of your child’s life to cover the cost of care, case management and some therapies). Birth and brain injury cases claim the financial value of your child’s needs over their entire lifetime and are often multi-million-pound cases. The aim of the claim is to put your child, as far as is possible, back in the position they would have been but for the negligence. Of course, no amount of money can undo the injury that your child has suffered. However, achieving a settlement which ensures they are cared for, have suitable adapted accommodation and can achieve their full potential is of massive comfort.
Deputyship
The Court of Protection will need to approve any financial settlement which is reached on behalf of a child. As such large amounts of money are claimed, a Professional Deputy (usually a Solicitor) will likely be appointed by the Court of Protection. The Deputy will ensure your child’s funds are spent appropriately and are budgeted to last for their lifetime. A Professional Deputy will be accountable to the Court of Protection so you have the added reassurance that your child’s money will not be mismanaged.
A Deputy will work with you and your child to put in place all the treatment and therapy which was recommended by the experts and claimed in the case. They will liaise with you, the treating therapists, medical professionals, Case Manager, school and the local authority. This should hopefully alleviate some of your day to day pressures and stress. The Deputy can also arrange for specialist equipment to help your child to be purchased. The Deputy will act as the employer for any carers who have been recruited to help care for your child. If you need to move to more suitable accommodation, your Deputy will help to locate and purchase this property and/or arrange for your existing home to be adapted.
At Enable Law, we have a specialist team of Professional Deputies who provide a complete service for those who lack the capacity to manage their own affairs (such as children or adults without capacity). Our team fully understands the responsibility that such a role requires and are dedicated in ensuring that all practicable steps are taken to ensure they always act in the client’s best interests when safeguarding their financial affairs.
About the authors:
- Adele Wilde – Associate
- Claire Stoneman – Partner
Adele and Claire are members of Enable Law’s Medical Negligence team, and specialise in claims involving birth and brain injury. Claire is accredited by both the AvMA and Law Society Clinical Negligence panels.
Although we are grateful to receive support from a number of corporate sponsors, we do not endorse any specific organisation. If you are seeking legal advice, we encourage you to contact a number of experienced solicitors for an initial discussion before selecting a firm.
