Quantifying claims relating to cerebral palsy

Medical negligence partner, Richard Money-Kyrle, has been recognised by Legal 500 and Chambers Directory for his expertise in maximum severity claims for more than a decade. As a specialist in achieving high value awards for clients with cerebral palsy both in the UK and abroad, we asked Richard how he approaches the quantification of these highly complex but important claims.

How can compensation help a child with cerebral palsy?

The purpose of compensation is to meet the injured person’s lifelong needs which arise from their negligently-caused disability. In addition to paying for items such as care, adapted accommodation, therapies and specialist equipment, compensation can also replace the financial losses which arise from that disability, such as net loss of earnings from a lifetime of being unable to work. Depending on the injured person’s life expectancy, the sums needed to do this can run into millions of pounds.

In quantifying a client’s claim, our aim is to fully understand our client’s condition, both now and projected into the future, and to identify the additional needs that our client will need to have met, so that we can ensure they receive the necessary funding to meet those needs. We do this by working closely with our client, their family and experts skilled in each aspect of the client’s life where help is needed.

When do you consider the value of a claim?

It is not possible to obtain a compensation payment until either the defendant has made liability admissions or we have obtained a court judgment. Once we believe that liability issues are close to being resolved, we begin working with our client’s family to consider the injured child’s immediate needs. These generally include provision of private therapies, support with care and assistance and equipment needs, as well as either adaptations to the family home or a move to suitable accommodation.

Issues often arise with educational support and provision of therapies at school, so we also obtain a review of the Statement of Special Educational Needs/Education and Healthcare Plan (SSEN/EHCP) to consider whether the provision that our client receives is adequate at school and whether the school placement is appropriate for our client’s needs. Where additional educational support is needed but not forthcoming from the local authority, we obtain interim payments from the defendant to allow these needs to be met.

How do you consider the level of compensation in a cerebral palsy claim?

In order for the court to make a final award of compensation our experts need to be able to provide the court with a clear view of the injured child’s likely developmental trajectory, long-term needs and life expectancy. In most cases, it is not until the child has reached the age of at least seven years old that the medical and therapy experts are able to predict these factors with sufficient certainty.

In most cerebral palsy cases involving a child with a long life expectation, compensation is awarded both as a substantial capital sum, together with guaranteed, index-linked, annual payments for life. The capital sum will allow purchase and adaptation of a suitable property and is intended to be sufficient (assuming investment at low risk) to provide for future capital costs including equipment, therapies, holidays and associated costs. The capital sum also includes repayment of all expenses and losses incurred as a consequence of the child’s injury up until the date of trial, including an amount reflecting the additional care and assistance provided by close family members.

A specific part of the capital award relates to the injury itself and follows accepted precedent figures in cases involving similar injuries. The sum awarded for this aspect of the claim, known as ‘pain, suffering and loss of amenity’ or ‘general damages’, depends on the exact nature of the injury.

Compensation for the provision of future care and assistance arranged with a case manager is generally made by way of guaranteed, index linked payments for life. The advantage of this approach is to provide a family with certainty that there will be the necessary funds available to meet future care needs for the entirety, however long, of the injured child’s life.

What evidence is needed when valuing a claim?

The starting point is that evidence of all losses and needs must be produced for the court. Witness statements from family, friends, teachers and treating therapists are often of assistance. Specific expert evidence is obtained, as required depending on the client’s condition, from experts such as a paediatric neurologist, orthopaedic surgeon, ophthalmic surgeon, auditory physician, occupational therapist, speech and language therapist, educational psychologist, physiotherapist, accommodation expert, financial advisor, assistive technology expert and care expert.

Each expert prepares a report setting out their opinion from the perspective of their own discipline and these are discussed in conference with a barrister before the legal team then prepare a detailed final valuation of the claim for submission to the court and the defendant. The defendant’s legal team undertakes a similar investigation and, following service of evidence and consideration of evidence from both sides, there is generally a without prejudice meeting, involving the claimant’s family, between the legal teams at which the possibility of settlement will usually be explored. In the vast majority of cases these meetings and subsequent settlement discussions avoid the need for trial.

What sort of documents should a client keep to help with calculating compensation?

The more evidence that is available, the easier it is for the court to assess the award of compensation. Families are advised to keep copies of receipts of items bought and copies of utility bills to evidence the additional costs that have been incurred in looking after their disabled child. It is also helpful for families to keep a periodic diary to provide a record of the additional care that has been needed, including both daytime and night-time care.

Does a client need to wait until the end of a case to receive compensation?

No. In many cases, once the defendant’s liability for the injury has been established, we are able to obtain interim funds to allow the purchase and adaptation of a suitable property, recruitment of a case manager, carers and therapists as necessary to ensure the injured child and their family has all the support they need well before the final compensation award is made.

Will a client need to go to court?

Any agreed final settlement for an infant or individual without mental capacity to manage their affairs requires approval by the court. This takes place at a short hearing at which we present the court with details of the claim and the negotiations to allow the judge to consider whether the proposed terms of settlement are appropriate and in the best interests of the child.

Can a client get help with managing their compensation?

Where an injured person without mental capacity receives compensation from a claim, the Court of Protection appoints a deputy to help administer and manage the money, under the Court of Protection’s supervision. Boyes Turner’s own team of Court of Protection experts led by professional deputy, Ruth Meyer, work closely with our clinical negligence lawyers and our clients, to manage the Court of Protection administration, investment and reporting requirements associated with large sums of interim and final compensation, whilst ensuring that money is accessible to meet our clients’ needs.

Our Court of Protection team support client families in employing a case manager to assist in the day to day organisation of the provision of therapies, equipment and care packages. Case managers also liaise with the injured child’s school and generally help with the complex work of meeting the needs and requirements of a disabled child.

If you are caring for a child or young adult with cerebral palsy and would like to find out more about making a claim, contact us by email at cerebralplasy@boyesturner.com.