Child Medical Negligence Claims

Children sometimes end up in hospital when they suffer illness or injury which can put them at risk of suffering additional injuries due to medical negligence.  Children can also be born with injuries due to substandard medical treatment or care.

Our pediatric medical negligence team have acted for many children, in personal injury claims, child abuse claims and clinical negligence claims. It can often be very stressful for the parents of an injured child to cope with the aftermath of the injury and to deal with the litigation at the same time as dealing with day-to-day issues such as caring for their child.

Cases involving the death of a child can be devastating and we recognise the need to provide support and empathy as well as straightforward and sensible legal advice at such a time. We are very experienced in dealing with these types of claims.

Making a Medical Negligence Claim as a Child

Children are entitled to pursue claims against their GP, the hospital responsible for providing them with care or, if the medical treatment was private, the individual doctor or clinic concerned.

Children may also be in a position to bring a claim under the realms of the Fatal Accidents Act 1976 if they lose a parent or parent(s) due to substandard medical care, or in an accident.

Claims relating to children are very different to those relating to adults. Children are not deemed to have the capacity to pursue a claim and a Litigation Friend must be appointed to bring the claim on their behalf. The Litigation Friend is a person who conducts proceedings on behalf of a person who does not have capacity due to being a minor or vulnerable, (i.e. a person who has a brain injury or mental health disorder).

A Certificate of Suitability as to Litigation Friend must be signed by the person who is the Litigation Friend before proceedings can be issued on behalf of the child.  It is quite usual for the mother of the child to become the Litigation Friend but it can, alternatively, be the father of the child. If the child does not have parents or a suitable family member who is willing and able to act as Litigation Friend, the Official Solicitors office can be approached to see if they are willing to be appointed as Litigation Friend on the child’s behalf.

The Litigation Friend will make all the legal decisions in the case on behalf of the child.

If a child is a teenager then they can be deemed to understand what is happening and can attend meetings in relation to their case with the Litigation Friend.

Osbornes Law act for many child abuse victims and Stephanie Prior is experienced at taking witness evidence from children who are 15-17 years of age, even if the Litigation Friend is the Official Solicitor’s office.

Limitation

Children have a lot longer in which to pursue a claim under the Limitation Act 1980. The three-year limitation period starts on the date of their 18^th birthday and expires on the date of their 21^st birthday.

However, It is always prudent to pursue a claim as soon as possible after the negligent medical care/accident as the medical records, doctors’ records, nursing records and other relevant records will be more difficult to trace the longer it is since the events, especially if the treating doctor has retired or moved hospital. This also makes it harder for the Defendant to obtain witness evidence and may make it difficult for the case to be pursued.

Settlement

Settlement of any case on behalf of a child must be approved by the court. If a case settles prior to the issue of proceedings then proceedings will have to be issued in court so that an approval hearing before a judge can be fixed.  The purpose of the hearing is so that a judge can review all the evidence and make sure that an appropriate settlement has been reached between the parties on behalf of the child. The judge can then enquire further if he/she has any issues with the settlement figure or the expert evidence, before approving the settlement on behalf the child.

The child’s monies will be invested in accordance with expert financial advice, if so required, and unless the child requires ongoing medical and/or nursing care and treatment the monies will be released to them on their 18^th birthday. It is usual in smaller value claims for the monies to be invested by the Court Funds Office and the child will have to contact the court on their 18^th birthday to obtain access to the funds. It is therefore imperative that if the child and his/her family move home after settlement of the claim and before their 18^th birthday, they notify the Court Funds Office of this.

In larger value claims relating to brain or spinal injured children, provisions will be made for monies to be released to the child’s Litigation Friend for the cost of care, equipment, therapies etc. A Professional Deputy and/or lay Deputy will be appointed to deal with all issues pertaining to the settlement monies and the Court of Protection will also be involved and will have to approve all applications made to the court by the Deputy before any monies are released by the court for the child.

Advice can also be sought in certain cases, in relation to setting up a Personal Injury Trust and this will protect the child’s welfare benefits if they are in receipt of these.

Our Promise to You

• We will review your child’s potential claim by advising you on the NHS complaints procedure or other alternative procedures if your case does not relate to NHS care and treatment.
• We will not charge a fee for our time in reviewing your case.
• We can assist you with any issues that you may have regarding the complaints procedure or that you encounter in obtaining copies of your medical records.
• We will advise you of the best course of action in respect of your child’s case.