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Can I make a clinical negligence claim on behalf of my child?
Having a child who is undergoing medical treatment is a time of stress and worry for parents. Luckily in the UK the standard of paediatric care is very high, unfortunately however mistakes can happen, which can lead to devastating consequences.
If your child has suffered further illness or injury due to negligent medical treatment you can bring a claim on their behalf. True Solicitors outlines the claims process below:
In what circumstances can I make a claim?
If your child has suffered injuries or further illness due to negligent medical treatment it is possible for you, as the parent or legal guardian, to make a claim on their behalf.
As the person making the claim on the behalf of someone else you are legally known as the ‘Litigation Friend’. You are able to make a claim at any time after the negligence occurred, before the child’s eighteenth birthday. The usual 3 year limitation period does not begin to run until the child turns 18.
Once the child has turned 18, the limitation period does apply and the child has three years from this date to make the claim themselves.
Exceptions to this rule include instances where the child does not have the mental capacity to make the claim themselves, after the age of 18. This could be due to a pre-existing condition or due to the negligent treatment which has led to neurological damage. The limitation period in these instances does not apply and the Litigation Friend can bring a claim on their behalf at any time.
What type of clinical negligence claims affect children?
Common examples of clinical negligence claims which can affect children include:
- Undiagnosed sepsis
- Undiagnosed or misdiagnosed cancer
- Birth injuries, causing conditions such as cerebral palsy due to negligent treatment before, during or after childbirth
- Failure to diagnose congenital dysplasia of the hip (CDH)
What will happen when I make a claim?
- Initial assessment: The start of the claims process will involve an initial, no-obligation assessment of your child’s case. A member of our friendly team will call you to ask you a series of questions to establish what exactly has happened and to assess the likelihood of your case being successful. If we believe that you have grounds to make a claim we will advise you on the next steps.
- Explain funding options: If you decide to go ahead with your claim we will explain the different funding options available to you. Most medical negligence claims are handled on a No Win, No Fee basis, however if your child suffered a neurological injury before or during the first six weeks of life, such as cerebral palsy or Erb’s palsy, you could fund the claim using Legal Aid.
- Contacting the health service responsible: Your solicitor will then make contact with the health service provider responsible for your child’s medical treatment, to inform them of a claim being made against them. This will give the defendant the opportunity to accept or deny liability. If liability for the negligent treatment is admitted, we can endeavour to secure some compensation up-front. This is known as an interim payment and can be used to pay for much needed care costs, home and vehicle adaptations if needed, and rehabilitation treatments.
- Gather Evidence: Evidence is used to support your child’s case and to help your solicitor to quantify the claim. Your solicitor will collect medical reports and witness statements to form a detailed analysis of the case. An independent medical expert will also review the details of the case in order to give an informed opinion on the future impacts the negligent treatment could have on your child’s health and quality of life. They will also give their recommendations on what care and rehabilitation might be necessary to aid in their recovery.
- Settlement and Compensation: Claims follow the clinical negligence pre-action protocol, meaning that your solicitor will always try to settle your claim without the need to start court proceedings. However, if the healthcare service provider doesn’t accept liability, or fails to agree to the compensation settlement figure, we will then commence court proceedings. We will be with you every step of the way to support you should the claim go to trial. It is important to note that all personal injury claims for children need to go before a judge for an infant approval hearing. This is done to ensure that the child is awarded with a fair settlement amount, and this is required even when the defendant agrees to the final compensation sum.
How much compensation could my child expect?
The amount of compensation is dependent on a number of different factors including:
- The severity of your child’s injuries or illness which has been directly caused by the negligent treatment.
- The impact of the illness or injuries on your child’s further development and future quality of life.
The compensation can be used to help fund the following:
- Private medical treatment: which can help to speed up and improve recovery.
- Rehabilitation: such as physiotherapy which can aid recovery now and in the future.
- Household adaptations: if your child’s mobility has been detrimentally affected due to the negligent treatment you may need to make adjustments to your home and vehicle to help them to get around. This may involve building a ramp to the entrance of the home, or widening door frames to allow for a wheelchair etc.
- Expenses: Including travelling to and from medical appointments.
- Loss of earnings: Quite often the parents will need to take time off work, or they may even be forced to stop working altogether in order to look after their child. Compensation can be used to cover this loss of income.
- Care costs: It may be necessary to pay for private carers to help to look after your child, and to relieve the added stress on the family.
How will the compensation be paid?
Compensation obtained for children injured through negligent treatment will be held in trust for them until they reach the age of 18. It is possible for the family of the child to make applications to the Court to release some of the funds to benefit the child if needs be, prior to the child turning 18.
In cases where the child has suffered neurological damage, and lacks the mental capacity to manage their own finances as an adult, their compensation will be managed by an appointed Professional Deputy – usually a close family member. The Professional Deputy will manage their funds to make payments for things that will assist their everyday living, such as paying for carers, private therapy, accommodation and mobility aids.
How will the claim be funded?
Most medical negligence claims are handled on a No Win, No Fee basis, however if your child suffered a neurological injury before or during the first six weeks of life, such as cerebral palsy or Erb’s palsy, you could fund the claim using Legal Aid.