Where a child is harmed as a result of unacceptable medical care, this can have a devastating impact on the child and their family. The consequences can be far-reaching and lifelong. For the child, it may mean enduring further medical intervention, physical disability, or a delay in development, which can affect their education, social interactions, and future opportunities. The emotional trauma can also be significant, potentially leading to conditions like anxiety or depression.
For the family, the strain is multifaceted. There’s the emotional toll of caring for a child whose life has been altered by negligence, coupled with ongoing care requirements, and financial strain if a parent has to reduce their working hours or stop working altogether to provide care. Siblings may be affected. In some circumstances the family dynamics can change drastically, and relationships can become strained.
We understand that pursing a claim for medical negligence can be daunting or add another layer of stress, as the process can be lengthy and emotionally taxing. Yet, it’s a necessary step for many families to secure the resources needed for the child’s care and to provide security for their future.
What is Medical Negligence?
Medical negligence is where the care provided to a patient is unreasonable and has caused them additional harm. This can happen in a number of contexts and may involve private or NHS treatment.
The unacceptable care could be provided by a GP, hospital doctor, nurse, dentist, midwife or health visitor. For children this negligence can occur before they have been born, at birth or any time after that.
To succeed in a claim for compensation for medical negligence you have to prove both that the care was unreasonable (breach of duty) and that, but for the identified breach of duty, the outcome would have been different (causation).
Breach of Duty: the treatment or care fell below medically acceptable standards – in other words, the patient received care which, at the time in question, no competent or responsible medical practitioner in the relevant field of medicine would have given.
Causation: It is not enough to simply prove that the care was unreasonable, you also have to prove that the care caused identifiable injury and loss. There are cases in which the patient can prove that the treatment was unacceptable, but even if the best of care been given, this would not have made any difference because, for example, there was insufficient time for appropriate care to have an effect. There are cases in which an entirely different cause for the injury is found, which are unrelated to the negligence, (i.e. a non-negligent cause).
A patient who cannot prove that the identified negligence caused their injury will not win their claim or recover damages for their injury.
What is a Litigation Friend?
Children under the age of 18 cannot make a medical negligence claim themselves. They must instead have a ‘litigation friend’ to act on their behalf and make legal decisions for them, this is usually one of their parents or their legal guardian. The Litigation Friend must act in the child’s best interests.
Are there any Time Limits?
Children have three years from the date they turn 18 to issue proceedings. It doesn’t matter when the negligence occurred, as long as Court proceedings are started before their 21st birthday.
In addition, if the child does not have mental capacity to instruct solicitors when they turn 18, this limitation period does not apply for as long as the child lacks capacity.
If a child has unfortunately died as a result of negligent treatment, the family have until the third anniversary of the child’s death to commence a claim.
How is Compensation Calculated?
Every award for compensation is different due to the individual nature of each claim. Compensation can be made up of the following;
- Pain, Suffering & Loss of Amenity, (PSLA) – This is a claim for the injuries suffered and is calculated by reference to the nature and severity of the injury.
- Past Losses & Future Losses – This is made up of items such as care and assistance, travel costs, loss of earnings and pension and out of pocket expenses for items such as treatment, aids, equipment and adaptions to your home or car.
This is not a comprehensive list, and each case will be assessed based on the facts.
In some cases, it may not be possible to assess any long-term consequences of the injury until the child is older and it will be necessary to wait until the child reaches a certain age to obtain the relevant expert evidence.
Where possible, we will seek to obtain an interim payment to help meet the child’s ongoing care needs, purchase aids and equipment or access therapies until the full extent of their condition and prognosis can be determined.
What is an Approval Hearing?
Once a settlement has been agreed between the parties, it will be necessary to attend an approval hearing, where a Judge will assess if the compensation agreed is fair and reasonable for the child’s injuries. The purpose of the hearing is to ensure that the child’s claim is not under settled and that they are not under compensated in respect of their claim.
In many cases, the Judge will make an order as to how and where the child’s compensation is invested until they reach 18. The child’s birth certificate will have to be produced to the Judge at the hearing.
How Ison Harrison can help
Medical Negligence is a highly specialised area of law, and it’s important you instruct a solicitor who specialises in this area. You can contact our team of specialists today on 0113 284 5000 or at clinneg@isonharrison.co.uk
Our team will listen to your story and deal with your enquiry in a sensitive manner. If we believe that there are sufficient prospects to pursue a claim, we will guide you through the process and ensure that your child gets the compensation they deserve.
