Compensation for still-birth and brain-damaged babies

Sandra Patton, Ashtons Legal

Sandra Patton, Ashtons Legal - Credit: Archant

Legally Speaking with Ashtons Legal

I have represented the families of children who have been brain damaged at birth for over 20 years.

Their motivation for making a claim is to give their child what every parent wants for their children, a good quality of life, a happy life, safety and the security of knowing that their child will be okay when they have gone.

The law in this country gives people the right to claim damages if injury is caused by someone else’s negligence. No doctor can be criticised in court unless the court finds that he or she has fallen below a reasonably competent standard of care.

The law also requires that, if possible, damages put the injured person in the position they would have been but for the negligence. Sadly that is never possible where a baby suffers life-changing brain damage. In such cases, the law will compensate and get as close to that outcome as possible; so, for example, if the child cannot walk, it will provide life-long costs of wheelchairs and adapted vehicles, if the child requires physiotherapy to prevent further, painful and debilitating deformities, the law will provide for those costs to be met by those responsible for the injury.

Jeremy Hunt’s announcement recently of a new voluntary compensation scheme for parents whose babies are damaged at birth is said to have the dual purpose of making hospital staff more willing to be open about their errors and take steps to improve, and of speeding up claims for families.

Sadly, in my experience there are staff who are open about mistakes and those that are not so why should a voluntary scheme that still permits families to sue make any difference to that? As to speeding up claims, Jeremy Hunt states that the average claim on behalf of a baby takes 11½ years - the only circumstance in which a claim may take this long is if it is in the hands of non-specialist solicitors or if the child has to reach a certain maturity before their life-long needs can properly be assessed.

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In my opinion, the real aim of this policy is to cut costs.

It is inconceivable that, if a family chooses the voluntary scheme, they will be compensated as they would if they pursued a legal claim, so we await the details with some interest.

Sandra Patton

Head of Medical Injury

T: 01603 944921


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