The claims process

We understand that many parents of children affected by cerebral palsy find the thought of making a claim quite daunting.  This summary is intended to provide an overview of some of the key stages in the claims process. It is important to remember that the specific investigations, steps and timescales depend on the individual circumstances of each case. The best way to find out what to expect if you are considering making a claim, or to ask questions about your own case, is to talk to us.

Have you been contacted by NHS Resolution?

If you have been contacted after the birth of your child by NHS Resolution, HSIB or (from April 2023) MNSI, you should contact us immediately for free, confidential advice.

If you have been contacted, it is because certain types of harm, including severe brain injury to babies from HIE from maternity and neonatal (newborn) care, are automatically reported by NHS trusts to NHS Resolution under the Early Notification (EN) scheme.

NHS Resolution is the NHS’s defence organisation whose purpose is to defend the NHS against medical negligence claims and reduce the number of claims and the amount of compensation that is paid to injured patients. If NHS Resolution contacts you and asks you to talk about your birth experience, they are doing so to help them prepare to defend any potential claim. Their published reports suggest that in the vast majority of cases, the EN scheme does not result in earlier full admissions of liability (responsibility) or substantial interim compensation payments to the families. In fact, in more than half of our successfully settled cases NHS Resolution initially denied liability.

It is vital that you seek independent legal advice from solicitors who are specialists in securing birth and neonatal brain injury compensation for patients before responding to NHS Resolution. Your child may be entitled to substantial compensation. 

Have you been contacted by HSIB or MNSI?

From April 2023, the work of HSIB’s maternity investigations programme will be carried out by the Maternity and Newborn Safety Investigations Special Health Authority (MNSI). Maternity and neonatal safety incidents involving severe brain injury to babies, including those which have been notified to NHS Resolution, may be investigated by MNSI.

We strongly recommend that parents or families who have been contacted by HSIB or MNSI after the birth of their baby contact us immediately for free, confidential advice. Your child may be entitled to substantial compensation.

Do I have to make a formal complaint to the hospital before making a cerebral palsy compensation claim?

No, the injured child’s family does not have to make a formal complaint to the hospital before considering making a claim. If the hospital has carried out its own investigation the child’s family should be able to obtain a copy of the hospital’s investigation report. If you believe an investigation is taking place, we can obtain a copy on your behalf along with the relevant maternity and neonatal medical records.

Can I make a claim for a child who suffered brain injury but hasn’t had a diagnosis of cerebral palsy?

It is not necessary to wait for a diagnosis of cerebral palsy before making a claim for a child whose brain was injured as a result of negligent care during or after their birth. The diagnosis of cerebral palsy is not applied to all types of brain injury disability. We treat each client as an individual and carefully assess the impact of their disability on their own life in the investigation and valuation of their claim. We have secured compensation for children and teenagers with a variety of different types and levels of brain injury disability caused by negligent maternity and neonatal care.

Is funding available for cerebral palsy compensation claims?

If you have been contacted by NHS Resolution, HSIB or MNSI, or are thinking about making a cerebral palsy claim, you can contact us here to speak to one of our experienced solicitors, confidentially and free of charge.

Boyes Turner’s clinical negligence team have access to a full range of funding options for our client families who are making a cerebral palsy claim, including Legal Aid and no-win-no-fee conditional fee agreements (CFA). We discuss with each family the specific needs for funding their child’s claim and advise them on what’s best for them in a way that is open, clear and easy to understand.

Are there time limits for making a cerebral palsy claim?

Children who have suffered a brain injury which will affect their mental capacity into adulthood have no deadline for starting their claim.

Children whose mental capacity has not been affected by their injury must issue proceedings to start their claim formally with the court before they reach the age of 21. This is because the 3-year ‘limitation’ deadline, which applies to adults with full mental capacity, does not start to run until the child is 18.

It is important to understand that if the child’s mother also suffered her own physical or psychological injuries from negligence during the birth, the 3-year deadline applies to her claim.

The investigation and gathering of evidence that must take place before a claim can be issued can take a considerable length of time. If you are considering making a claim at any time in the future, we recommend that you contact us for advice as early as possible, so that we can advise you about any deadlines and how to preserve any evidence to safeguard your right to claim.

We welcome enquiries from teenagers and young adults with cerebral palsy whose parents chose not to pursue a claim in their early childhood, but who now wish to investigate their own claim. We understand the emotional challenges that their families experienced in making their decision, and also the needs and concerns of the young person as they face the challenges that lie ahead.

Compensation can be a lifeline to support further education and independent living and working. Where we have been able to obtain relevant medical records and other evidence from the pregnancy and birth, we have helped many teenagers and young adults with cerebral palsy, and their families, achieve this transition.

Investigating a cerebral palsy claim

Once we have agreed to help a child’s family or a young adult investigate their cerebral palsy claim, and funding is in place, we focus our investigations on proving that the healthcare provider (usually the NHS) was responsible (or liable) for causing the injury. This stage involves gathering evidence which usually includes:

• working with the family and any other witnesses to prepare witness statements setting out their recollections and factual evidence;
• obtaining the mother’s and child’s medical records from all those who have been involved in their care, such as hospitals, community midwives, GPs, ambulance service;
• instructing medical experts to advise on whether our client received negligent care, and if so, further experts’ reports on whether the negligent treatment caused the child’s brain injury and disability;   
• meeting with a barrister and our experts to discuss the strengths and weaknesses of the claim, so that the barrister can prepare the formal letter and/or particulars of claim;
• sending a formal letter of claim to NHS Resolution or the healthcare provider’s medical defence organisation.

NHS Resolution must then answer the claim in a letter of response which will either deny or admit liability for the child’s injury. If NHS Resolution admit full or partial liability at any stage in the claim, this can sometimes reduce the length and scope of the investigation.

If liability is denied, but we believe our client has a strong case based on our experts’ opinions and our own experience, we issue court proceedings. This sets in motion a series of steps which lead up to a trial at which the judge will hear the factual witnesses’ and medical expert’s evidence and make a ruling on liability.  

If we have to issue proceedings because NHS Resolution has denied liability in their letter of response, this does not automatically mean that the case will go to trial. In our experience, NHS Resolution and other medical defence organisations often wait until proceedings have been issued and we have demonstrated that we have medical expert evidence to prove our client’s claim before admitting liability or negotiating settlement.

Admissions of liability, judgments and interim payments

As soon as NHS Resolution admits liability for our client’s injury, we ask for a substantial interim payment. We also issue proceedings, if we have not already done so, and ask the court to enter judgment in our client’s favour. We then work with the family, a Court of Protection deputy and a case manager to use the interim payment to help meet the child’s urgent needs, such as for additional care, therapies, specialist equipment and more suitable accommodation.

At this stage there is still a lot of work that must be carried out before the claim can be valued and prepared for settlement, but interim payments enable us to begin making a difference straight away.

If the child is still very young it may be necessary for the case to be adjourned (put on hold) until their growth and development allows their future disability and needs to be predicted.  It can take time for some children’s full potential (and ability to access technology and education)  to become apparent. For others, more subtle aspects of the child’s disability may not appear until they are at school or have fully developed. This time of waiting is important to ensure that the final settlement takes into account the child’s additional needs arising from their disability throughout their life.  In the meantime, we ensure that the child’s immediate needs are properly met using interim payments.

At key stages throughout the claim the child will need to be assessed by our own and the defence team’s experts. 

As soon as our medical and educational/neuropsychological experts can give a confident prognosis, we ask experts in other disciplines, such as care, case management, accommodation needs, therapies, specialist equipment, education and transport, to assess the child’s future needs. This helps us value the claim before meeting with the defence team to negotiate settlement.

During negotiations we aim to secure maximum value settlements which are paid in the best way to meet the child’s lifelong needs. For many this will involve a combination of a lump sum and guaranteed lifelong annual payments (PPOs) to cover the cost of care for the rest of their life.

The child’s settlement will then be approved by a judge at a short court hearing. The child’s compensation will usually be managed via Court of Protection deputyship and their privacy protected by an anonymity order.