How do brain injuries occur?
Although the majority of the time, medical staff do a wonderful job and are often able to prevent a brain injury occurring, on occasions, the care they provide falls below a reasonable standard and a medical accident can occur. There are a number of situations when this can happen however some of the main ones are detailed below:
- Injuries during birth: These can happen to either the baby or the mother.
- Cerebral palsy (a condition where an injury to the brain results in that person not being able to control their muscles in the normal way, meaning they may not be able to walk, talk, eat, play or have difficulties learning and hearing) can be caused to babies as a result of poor management of a birth and the baby being starved of oxygen.
- An injury to the mother during birth may be caused for example by the failure to treat symptoms of pre-eclampsia resulting in her suffering a stroke.
- Surgical accidents: Injuries to the brain can occur if a surgeon makes an error when operating on or near to the brain. Errors made during other types of surgery can also result in brain injury. This could happen for example if a patient suffers a heart attack during surgery and this causes their brain to be starved of oxygen.
- Failure to treat: If a condition such as a brain tumour, haemorrhage, meningitis or epilepsy is not diagnosed or treated within a reasonable time scale, this can cause damage to the brain.
- Overdose of medication: Prescribing and administration of medication can go wrong if the dosage is incorrect and/or too high, the side effects can cause the brain to swell and as a consequence a brain injury can develop.
Depending on the severity and if a brain injury can be proved to have been caused by negligence, then the injured party may be entitled to make a claim for compensation. In cases where the injured party has suffered permanent damage and requires 24 hour care, a claim for compensation may be substantial.
What would I have to prove in order to be successful in claiming compensation for a brain injury?
The majority of clinical negligence cases are complicated and lengthy. In addition to obtaining an account from the injured party as to how they were injured, in every case, medical evidence needs to be obtained in order to establish that:
- The treating medical professional owed you a duty of care, and that they breached that duty of care (thus providing substandard care) and;
- That as a result of that breach of duty, you suffered an injury.
If both these elements can be proved, further medical evidence is then required in order to assess the injured party’s condition and prognosis for the future. This evidence will provide detail on the injured party’s needs and the treatment they will require as a result of the negligence. This evidence together with any information provided by the injured party can then be used to calculate the injured party’s compensation. This will include an award for the individual’s pain and suffering as well as expenses such as the costs of any care and/or treatment they require, adaptations to the house or vehicles etc. These expenses will take into account what may have already been paid and what will be incurred in the future. In addition, and if the injured party can no longer work, or will be unable to work to the same extent, the claim for compensation may also include a claim for loss of earnings including the loss of enjoyment that the individual may have gained from doing that particular job.
At Stephensons, our team of clinical negligence solicitors have extensive knowledge and experience in recovering compensation for victims of brain injuries caused by negligence. We will be able to provide you with all the advice you need about pursuing a claim for compensation and guide you through the process as efficiently as possible in order to achieve the best possible result for you.
What if the injured person does not have the mental capacity to pursue a claim for compensation?
It can often and unfortunately be the case that as a result of a brain injury, the individual is left so seriously hurt, that they no longer have the mental capacity to deal with their own affairs, which includes giving instructions to their solicitor. In these cases, (and if the injured party has not previously appointed an Attorney to deal with their affairs in the circumstances they lack mental capacity) what is known as a “litigation friend” will be appointed. This is usually a family member. If the injured party is successful in their claim, formal approval then needs to be sought from the Court of Protection (a court specifically set up to deal with the affairs of people who lack mental capacity) to ensure the award is fair from the perspective of the injured party.
At Stephensons, we will be able to provide you with all the advice you need about this and guide you through the process, should it be necessary to seek the approval of the Court of Protection.
Will I be able to receive an interim payment of compensation?
It is often the case that brain injury claims can take some time to conclude.This is because it is necessary to ensure all aspects of the claim are fully investigated, often with the involvement of more than one medical expert. We understand that during this period, the injured party may have a need for funds; especially if for example, they can no longer work as a result of the negligence. At Stephensons, we actively seek to secure payments upfront for our clients wherever possible.This is generally when the party at fault has admitted responsibility for the injury caused. These funds can provide important and much needed assistance paying day to day bills or with purchasing necessary equipment and treatment to help the injured party. Any payments obtained are then simply taken into account when any final award of compensation is later agreed and paid.
My child is 12 years of age and has been diagnosed as suffering from brain damage a few days after being born due to an overdose of medication by the hospital. Can we make a claim?
Although it is more than three years since the time the brain damage occurred, a child under 18 can bring a claim at Court at any time until their 21st birthday. However, if the severity of the brain damage is such that the client is considered to be a patient under the mental health regulations then there may not be such a time limit. It is important, however, that you contact a specialist Solicitor as soon as you think that you may have a claim.
My partner has brain damage as a result of a misdiagnosis of their condition. They are not able to bring a claim themselves due to mental capacity issues. Can I bring a claim on their behalf?
There are many clients who are unable to deal with their claims because they are under 18 years of age, due to their mental capacity or because they are out of the country for a while. We can appoint an adult to act as "litigation friend" and they can bring the claim on behalf of the client.
I am concerned about my child's welfare in the future when I am no longer able to care for them myself. Can I claim for someone to provide the care in the future?
Yes, if it is a direct result of the medical negligence. We will employ a nursing expert to assess your child's needs now and in the future so we can ensure that there is adequate compensation to fund their care requirements.