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How do you put a value on a brain injury resulting in cerebral palsy?

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Figures produced by NHS Resolution earlier this year showed that failures in maternity care had led to 1,200 children being permanently brain damaged over the last decade. This is a shocking figure and hard to comprehend, as is the difficult task of trying to put a value on the claim that arises from the failures in care.

Amy Greaves, a specialist clinical negligence solicitor in our Birmingham office, looks at how these claims are valued.

How are claims valued?

The reality is that it is impossible to compensate a child for the devastation caused by the brain injury and no amount of money is ever enough. However, a compensation award can assist the child and their family in providing for the child’s needs arising from the disability.

It is impossible to say at the outset of a case what the value of the case is as this depends on the extent of the injury suffered, what input the client needs to have an independent life as possible and whether the Defendant has accepted liability. As solicitors we require the assistance of expert witnesses to assist us in determining some aspects of a client’s claim.

Every case is different and has to be individually assessed, but generally, the following losses will be claimed in cases where a client has suffered a brain injury at or around the time of their birth.

Care

Children who have suffered a permanent brain injury at birth usually require significantly more care throughout their life. In a clinical negligence claim, we include the additional care a brain injured child requires compared to a non-injured child of the same age. We look at the care the child needs now and what they will need in the future for the rest of their life. A care expert will assess the needs and set out the costings of this for a commercial care team to provide, enabling family members to resume their usual roles and to ensure the client has independence.

Care payments are usually paid on a yearly basis to ensure that the client’s care needs are met throughout their life. This is known as a periodical payment and can reassure parents that the child will be cared for appropriately for their lifetime.

Accommodation

Although a client may have adapted their home to make it more suitable, it is unlikely they will live in a home that entirely meets their needs. A brain injured client should be able to access all parts of their home in the same was a none-injured person. For example, if a client is permanently in a wheelchair, they should be able to manoeuvre freely between rooms and once within a room they should be able to move around without obstacles or restriction. Such access is over and above the usual ramps and rails that will be available through local authority funding and grants.

An accommodation expert will be instructed to identify suitable plots of land or properties that can be purchased and adapted to meet the client’s needs. Values in accommodation claims can vary quite significantly depending on where the family live.

Therapies

A brain injured child will often need the input of a number of therapies throughout their childhood and their lifetime. This will often include physiotherapy, occupational therapy and speech and language therapy. It can also include play therapy and input from a neuropsychologist.

Again, experts in their relevant field will assess the child and determine what level of support they are likely to require. This is costed on a private basis and those costs are included in the claim.

Equipment and transport

Technological advances mean there are frequently new products becoming available that assist a brain injured person in becoming more independent. These can range from automatic curtains/blinds and doors to computer technology to assist someone with speaking. A client is also likely to require adapted transport to enable them to travel safely if they require a wheelchair.

The costs of purchasing and maintaining these items are calculated and included in any clinical negligence claim.

Loss of earnings

A child who has suffered a permanent brain injury at birth may not be able to work, or work to their full potential. This is likely to result in a difference between what in fact they are likely to earn and what they would have earned, had they not suffered a brain injury. This loss of income is included within the claim.

The injury itself

The claim will include a sum for the brain injury itself to reflect an acknowledgement that the client has suffered a significant injury that should have been avoided. This aspect of the claim is more difficult to value as there is no easy way to appropriately assess the impact a brain injury has had on a person. We use guidelines and previous reported cases to assess the appropriate level in each individual case.

If you are concerned that your child has suffered a permanent brain injury due to circumstances around their birth, please do contact us with regards to a potential claim.

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Disclaimer

This information is for educational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. © Shoosmiths LLP 2021

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