The disabled teenager's dilemma: Am I too old or too young to bring a claim?

The parent’s dilemma: my child has cerebral palsy - do I cope or question?

Living with severe disability can be stressful. It’s only natural that parents who have experienced a difficult birth or neonatal injury to their child often try to set aside their feelings of anger, loss and confusion by ‘moving on’ and focussing on caring for their disabled child.

Is it better never to question whether life could have been different, or to fight for the truth and risk the anguish that comes with knowing that a child’s brain injury should have been avoided? Every parent we act for has grappled with this question and come to their own courageous conclusion. For some the courage is in coping. For others it is in the decision to risk knowing the truth in the hope that there is a possibility of financial help for their child. For the parent in this situation there is no right or wrong decision, nor is there an easy way out.

Whether a parent comes to us in the days following a traumatic birth, after a cerebral palsy diagnosis in the child’s infancy or after 16 years of coping alone with the increasing financial, physical and emotional demands of disabled family life, we understand what it has taken to get here and admire their courage both in coping and in coming forward for help.

The teenager’s dilemma: my life, my disability – but is it my decision?

We are often approached by, or on behalf of, mentally capable teenagers with severe physical disability. We are struck by the stoicism and strength of character in these young people who, whilst honouring their parents’ life choices and recognising the hardship they have faced, nevertheless have questions of their own about the cause of their disability.

Having come through childhood with help from supportive parents, teenagers with cerebral palsy and other severe physical disability start thinking about asking for help when considering the next stage in their lives, such as living away from home, studying at college or university, socialising as an adult with friends or finding accessible work. Their transition from childhood to adulthood and the realisation of what is needed to help them move from dependence to independence, is often the turning point at which they want to take back from their parents the decision to investigate the cause of their own disability. But can they?

How does the law, the claims process and Boyes Turner support young people who have been severely injured through negligence and want to make a claim?

If you are under 18 and are disabled as a result of negligent medical treatment, you will understandably have lots of questions about whether you can take legal action. We have put together some FAQs which discuss how we navigate a claim on behalf of our younger clients. You can find out more about your own situation, by talking to one of our friendly, experienced lawyers, or by email at cerebralpalsy@boyesturner.com.

Can I bring a claim myself if I am under 18?

The courts regard any person under the age of 18 as a child or ‘minor’, so until you reach 18, you are unable to pursue a claim yourself. However, in these circumstances, a ‘litigation friend’ can apply to the court to represent you and make decisions about your case. Litigation friends are also used to support adults who lack the mental capacity to manage their case. These are known as ‘protected parties’.

Someone can become your litigation friend either by applying to be one or they may be appointed by the court.

Examples of who can be a litigation friend include:

• a parent or guardian;
• a family member or friend;
• a solicitor;
• a Court of Protection deputy.

The court will check that the litigation friend is suitable. This means that their interests do not conflict with yours and that they can make decisions about your case in a fair and competent way. During proceedings, the court will ensure that your litigation friend is performing their duties properly. They can be replaced by the court if necessary.

Once you reach the age of 18 and are capable of managing your own affairs, the litigation friend’s appointment ends. We prepare a statement telling the court and everyone involved in the case that you have turned 18 and that the litigation friend no longer acts on your behalf and advise where documentation should be sent in future.

Is there a time limit for bringing a claim?

Generally, in medical negligence claims, a claim must be brought within three years from the date of the injury. However, for minors it is three years from the date you reach the age of 18 and become an adult, i.e. your 21st birthday.

There are exceptions to this rule, notably for those who are mentally incapable of managing their affairs, but also in other exceptional circumstances. We always advise that you contact us as soon as possible to find out whether you have a claim (to ensure that essential evidence is still available) but also to check with us even if you are older or if you are not sure about whether your limitation deadline or time limit has expired.

Will the claim interfere with my life?

We find that the more input we can gain from our client, the easier the claims process is for them and the better the final outcome. Therefore, we encourage our clients to update us regularly about their current medical condition, changes in circumstances and any expenses they incur relating to their injury.

We also understand that life goes on outside the litigation process, and our clients face wider difficulties on a day-to-day basis which means it is not as easy to provide regular updates as it sounds. Our approach is to guide our clients sensitively through the claims process in order to take as much of the stress involved in the legal claim off their shoulders as possible. Therefore, our team will always work to fit around your schedules and communication preferences, and are happy to answer any questions you may have at any stage of the process.

As a teenager, you may be studying for exams or busy with school or university and therefore not have time to be directly involved with the claim. You may wish only to be involved in key stages in the claim, such as settlement discussions, or recognise that you have an injury as a result of negligence but not wish to know the ins-and-outs of the actual claim as it progresses, and that is okay. Litigation friends, as mentioned, are there to make any necessary decisions on your behalf throughout the claim and act in relation to your best interests. This provides peace of mind that your parent or trusted adult can liaise with us on your behalf to achieve the best outcome possible for you and your future, while you can continue to focus on everyday life.

What kind of support from others might I need for my claim to succeed?

Medical Records

If you have suffered an injury at birth, our investigations will require us to have access to your mother’s medical records in addition to your own. In this situation, we need the mother’s permission in order to apply for her obstetric records.

Witness statements

Witness statements are vital in any claim for an injury caused by clinical negligence. As well as your own account, we will usually ask your parents or other primary carers to support the claim with their own recollections of the events that led to your injury and to provide evidence of past costs and gratuitous care they have provided for you in relation to your injury.

If my claim is successful, can I and my compensation be protected?

Following settlement, we understand that our clients sometimes worry about how their privacy and compensation will be protected. At Boyes Turner, we are specialists in handling maximum value compensation claims for seriously injured and vulnerable clients and work closely with the courts and the Court of Protection to protect our clients’ anonymity and financial security.

In a recent post we answered the frequently asked questions: What is anonymity and why might I need it? What is an approval hearing? What are the advantages of a Deputyship or Personal Injury Trust?

How can a claim help me cope in the future?

During the valuation of your claim, we take time to consider and instruct relevant experts who can comment on any future needs you may have. This way, we can make sure these needs are provided for financially, by interim payments, lump sums and lifelong, index linked, annual ‘periodical payments’ (PPOs) which can make a big difference to everyday life.

This may include funds for specific purposes such as:

• Care
  
  As a result of your injury, you may require ongoing support. Your compensation award can therefore take account of the costs involved in paying for professional carers.
   
• Case Management
  
  A case manager is employed to co-ordinate a person’s therapy and support needs. This can especially be helpful, for instance, when you move out of your family home as it allows for support while maintaining your own independence.
   
• Aids & Equipment
  
  Another way of keeping your independence can be through the use of specialist aids and equipment. Equipment can range from household additions, such as specialist furniture or bathing equipment, to assistive technology, such as communication aids, and can play a big difference in adapting to everyday life after your injury. Compensation can be used for the purchase, replacement and maintenance of aids and equipment, as well as other associated costs.
   
• Treatment & Therapies
  
  If you need ongoing therapy or medical treatment to help manage your disability, the costs of this can also be covered by your compensation.
   
• Adapted accommodation and vehicles
  
  Adaptations can be made to your home to ensure it fits your needs, such as: installation of a through floor lift, accessible and safe outdoor space, accessible wet rooms/showers, ramps and widened doorways. This can also include the cost of specialist vehicles you may need.
   
• Loss of earnings/pension
  
  At a young age, it can be hard to predict your future career, and what career you would have had, if you not had been injured. The careers of your family members may be used as guidance to calculate a financial sum as part of your compensation for any earnings or loss of pension you may suffer as a result of your injury.
   
• Deputyship costs
  
  In cases where you are unable to manage your own financial affairs, a Court of Protection appointed deputy will manage the compensation in your best interests on your behalf. The costs involved in this can also be claimed as part of your compensation.

At Boyes Turner we are committed to helping severely injured people access their legal entitlement to compensation to regain their mobility, independence and quality of life, to whatever degree that is possible for each individual. We support brain injured and disabled clients of all ages and their families through the claims process with compassion and professionalism. Our specialist lawyers are nationally acclaimed for their expertise and are loved by their clients for their approachable, friendly and focussed support. Our track record of successful claims speaks for itself.

If you or member of your family has suffered cerebral palsy or other severe disability and you would like to find out more about making a claim, contact us by email at cerebralpalsy@boyesturner.com.