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Clinical Negligence Solicitors

Making a Cerebral Palsy Clinical Negligence Claim (19 April 2016)

Date: 19/04/2016
Duncan Lewis, Clinical Negligence Solicitors, Making a Cerebral Palsy Clinical Negligence Claim

The month of March marked cerebral palsy awareness month. In raising awareness of this life-changing disorder, Leah Kesby of the Duncan Lewis Clinical Negligence department tackles how a claim for cerebral palsy, as a result of clinical negligence, can be brought.

Cerebral palsy is a neurological injury that affects 1 in 400 births and an estimated 1,800 children each year; making it one of the most common disorder amongst children.
Cerebral palsy is a permanent and incurable disorder that affects a person's ability to control their muscles as a result of abnormality or damage to the developing brain. It affects the motor area of the brain's outer layer which deals solely with muscle movement. As a result, an individual's movement, balance and posture are affected.

The abnormal development or damage can be a result of interruption of the normal development of the brain (from the likes of infections, genetics or fevers); bleeding of the brain (commonly caused by strokes) and Asphyxia (a severe lack of oxygen to the brain). This could occur during pregnancy (prenatal stage), immediately before or after birth (perinatal stage) or after birth (postnatal stage).

The different types of cerebral palsy are determined by the extent and location of the movement disorder. They include spastic (stiffness of muscles and awkward movements), athetoid (uncontrollable writhing or jerking movements), ataxic (balance and depth perception) or a mixture of all three. The level of severity and extent will differ for each individual. Children with cerebral palsy are at a higher risk of developing other conditions that affect other areas of the brain causing intellectual disability, delayed growth and development and other impairments.

It is important to understand that not all cerebral palsy cases are as a result of clinical negligence. In fact, the majority of cerebral palsy cases are seen to be non-preventable; however there are a small minority of cases that could have been prevented had certain risk factors (such as signs of foetal distress, complications during labour and delivery, delay in delivery, low apgar scores and jaundice to name a few) been picked up earlier, managed or avoided. It is in these minorities of cases where a claim for clinical negligence may arise.
A claim for clinical negligence arises where a medical professional (i.e. doctor, midwife, nurse etc.) has acted in such a way that no other reasonably competent medical professional would have acted in that particular situation. As medical opinions differ, if a particular practitioner is relying on a reasonable body of medical opinion to prove that he was not negligent, that medical opinion must be seen to be logical and reasonable. It must be shown that the medical professional's actions constituted a negligent act (which is a higher requirement that proving a poor standard of care) that resulted in a substantial injury (in this case cerebral palsy).

The main difficulties that solicitors face when bringing these claims are, firstly, proving that the medical professional's action constituted a negligent act (known as 'liability') and secondly, that there is a link between this negligent act and the injury suffered (known as 'causation'). In some cases, there may have been negligence but no injury as a result; in others, there may have been an injury yet no negligence; whilst in others, there may have been negligence and an injury but no causation. It must be emphasised how important it is to ensure that there all elements of the claim are satisfied in order to be successful – this is why clinical negligence claims are extremely difficult to bring. Particular issues arise where there are a number of factors other than negligence which occurred that could have solely caused or contributed to the injury that were not the fault of the medical practitioner. On this basis, it makes it extremely difficult to bring a claim for cerebral palsy hence why there have been few successful reported cases.

In the case of Dawn Chappell (as personal representative of Callum Lee Chappell) v Newcastle upon Tyne Hospitals NHS Foundation Trust [2013] EWHC 4023 (QB), the Claimant was born with cerebral palsy on 5 March 2000 after being delivered by C section after a difficult labour. It was argued by the Claimant that he had developed cerebral palsy as a result of synoticnon being overused during labour and that there was a failure to stop using synoticnon when the CTG was pathological, resulting in him being starving from oxygen. The Defendants position was that the Claimant's injury was a result of an infection that the mother had caught that had been passed on to him through delivery causing him to suffer from neonatal meningitis. Unfortunately, the claim was dismissed on the basis that there was no liability or causation proved by the Claimant and that it was more likely that his injury was a result of infection.

On the other hand, cerebral palsy claims can be very successful and rewarding to obtain a positive outcome for the Claimant, with most settling before trial. In MacMillan Goncalves (by his father and litigation friend, Antioni Goncalves) v Newham University Hospital Trust [2010] unreported (QB), the Claimant, who was the second twin, was born with cerebral palsy as a result of starvation of oxygen. The Claimant was born 37 minutes after his elder twin by an emergency caesarean section after it was identified that he was in a breech position, had an abnormally low foetal heart rate and was failing to progress during delivery. After expert evidence from paediatricians and neuro paediatrics, it was thought that the Claimant had been starved of oxygen for a total period of around 20 minutes. The court held in the Claimant's favour stating that had he been delivered within 10 minutes of this period, he would not have sustained cerebral palsy.

A further hurdle that solicitors and claimants must meet when bringing a claim for cerebral palsy clinical negligence is that it must be brought within the specified time limitation period. The general rule is that a claim for clinical negligence must be issued at the court within three years from the date of the negligent act or three years from the date of knowledge of the negligent act. There are however exceptions that can apply to cerebral palsy claims. The first being that in child cases, the limitation period does not start running until the child turns 18 years old. This means that the three year time limitation period would expire on the child's 21st birthday. The second exception is that if it is held that the Claimant (the individual with cerebral palsy) is seen to not have mental capacity to bring the claim, time limitation would not start running until they retain mental capacity. Medical evidence is usually required on the latter point in order to be satisfied.

Another factor that individuals bringing a cerebral palsy claim should be aware of is the funding options available. In effect from 1 April 2013, Legal Aid funding for clinical negligence claims was limited to claims where a baby has sustained a neurological injury either during birth or in the first 8 weeks of life. Alternative funding arrangements are, however also open for these types of claims such as "no win no fee" arrangements.

Lastly, it is important to understand what can be achieved if a clinical negligence claim is successful. Unfortunately, a successful clinical negligence claim will not assist in policy change, nor can it force a hospital to change its practices. Understandably, this may be a disappointing outcome to some whose agenda it is to ensure that what has happened to them does not happen to another further down the line. This of course does not prevent parties from lobbying to the government for change.

What a successful outcome in a clinical negligence claim can do though is offer those victims compensation and an apology from the hospital. It will also hopefully assist with a better standard of living not just for the injured child but for the family too including providing care and assistance with a support network for all involved and funding for lifelong care, required treatment and therapies needed.

About the Author Leah Kesby

Leah Kesby is a Trainee Solicitor currently undertaking her first seat in Clinical Negligence. Leah's particular interest for cases involving birth injuries stems from her involvement working with disabled children which she does in her spare time. Additionally, she has a younger brother who was born with a disability and therefore has a strong understanding of the difficulties and pressures families with a disabled child face.


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