Sadly, despite the excellent standards of today’s medical professionals, many of the cases of Erb’s Palsy that still occur could be prevented.
At Ison Harrison we understand that it can be extremely difficult to learn that your child has suffered an injury and to deal with the emotional and financial strain of raising a child that requires additional care and aids to help them live independently with what can be a permanent disability.
We have represented many children with Erb’s Palsy and secured significant settlements. This provides them with security, knowing that they have the funds they will need to make up for the things they cannot do, need help with or need costly equipment for to maintain their independence.
For a claim to be successful it has to be established that the medical care provided to the mother and child fell below a reasonable standard (breach of duty) and that, as a result, that child has suffered a brachial plexus injury (causation) which otherwise would have been avoided.
Bringing a claim on behalf of your child can be extremely daunting and our job is to guide you through what can, at times appear to be a complex process.
In order to investigate a claim medical records will be requested and witness statements taken from the mother and anyone else who was present at the birth and any other relevant time. If it looks like the case will proceed medical experts will then be instructed. Once experts have reported back on breach of duty and causation it is sometimes necessary to speak to a Barrister and other experts to look through the details of the claim.
If the experts consider that the care received fell below an acceptable standard, and that this has caused the brachial plexus injury then a ‘Letter of Claim’ will be sent to the potential defendant detailing the claim, and setting out the relevant allegations of negligence and giving them four months to respond formally with a ‘Letter of Response’
If the defendant admits liability, a judgement against them can be made and the next step is to gather evidence in order to value the claim. If the claim is disputed then formal court proceedings will begin. If this happens it is common for the case to be dealt with by way of a “split trial”. This means that the issue of the potential value of the case will be put to one side and the issue of liability will be dealt with first. If it is found by the court that the defendant is liable for the injury then steps will be taken to value the claim. When Judgement is entered we would also ask for a payment on account of damages to pay for past losses and immediate future thearapy and care.
There are three elements to consider when valuing a claim: General Damages, Past Losses and Future Losses.
General Damages: This is the compensation for the fact of the injury, the pain and suffering experienced and the inability to live and enjoy life. The amount is assessed by the Court in accordance with an established formula.
Past Losses: This is the compensation for expenditure and financial losses that have been incurred as a consequence of the injury, and would not otherwise have been incurred. It will be necessary to prove these items and so it is important that you try to keep a record of all these items and keep receipts (or any other documents) that might help to prove them. This can include care provided by a family member and travel and parking costs. Keeping a diary of extra care provided which is due to the Erb’s palsy is a practical way of keeping track. Getting used to keeping receipt and putting them in one place is another.
Future Losses: Compensation is intended to try to put the injured person in the position they would have been in but for the negligently caused injury. By compensating (for example) for the cost of therapy, equipment, transport and care, it can help to maximise both the quality of the injured person’s life and their potential to live as full and independent a life as possible.
It is difficult to predict at the outset how long a case will take to conclude but you should be kept up to date throughout and advised of anything which may delay matters. Cases cannot settle until the full extent of the injury has made itself known. It would therefore be unusual for a case to settle before a child is 7 years old.
Our Clinical Negligence Team
Our clinical negligence team is headed up by James Thompson, a Partner of the firm and an experienced Solicitor who is respected throughout the legal industry. James is responsible for a specialist team of highly-qualified and experienced clinical negligence professionals. Our staff take great pride in adopting a client-focused and sensitive approach.
Erb’s children will often qualify for legal aid and we are one of the few firms in the country still authorised to undertake legal aid work in clinical negligence claims.
We work with the Erb’s Palsy Group, a national charity which offers support and information to families affected by Erb’s Palsy. James Thompson is the only Solicitor in the North that the Erb’s Palsy Group recommend. Erb’s cases can be extremely complex and they should not be attempted by inexperienced lawyers. It is therefore vitally important when considering whether to pursue a claim you consult a specialist lawyer with the skill, knowledge and expertise to ensure you or your child’s case is investigated, pursued and progressed to the right conclusion.
James Thompson is also a Director and Trustee of the Little Hiccups Charity, a parent-led support group for families with children with disabilities.
If you have any further questions please contact James Thompson directly for free advice on 0113 284 5066 or james.thompson@isonharrison.co.uk. If for any reason James is not available when you call, you can speak with a member of his team and they will arrange a mutually convenient time for him to speak with you.
