In order to claim compensation for a brachial plexus injury during childbirth, it has to be demonstrated that your child has suffered a long-term or permanent injury that “at the time and in the circumstances” could have been avoided with greater care. Some brachial plexus injuries may not be avoidable, and this article explains some of the circumstances in which it may be possible to claim for brachial plexus injury compensation.
Brachial plexus injuries occur in thousands of births each year. Many of the injuries heal naturally within a few weeks with no long-lasting impediment. However, if you child´s condition has failed to improve – or only improved marginally – it may be possible to claim compensation for a brachial plexus injury compensation against the hospital at which your child was delivered provided it van be shown that your child´s injury was attributable to medical negligence.
In order to establish medical negligence, a solicitor will request access to your medical records and those of your child, and have them reviewed by an independent medical expert. What happens next depends of the strength of evidence that is compiled, the results of an internal hospital investigation and whether or not the hospital (or NHS Trust) is willing to accept liability for your child´s injuries.
How Brachial Plexus Injuries Occur
The brachial plexus is a group of nerves that run from the top of your child´s spine into their arms. They effectively control upper arm movement, but can also be responsible for the perception of touch in the upper arm and control your child´s ability to grip. When brachial plexus injuries occur, the most frequently identified symptom is the affected arm hanging limp or into the body.
In order to claim for brachial plexus injury compensation, it has to be established how the injury occurred. In some instances, a mother´s contractions may cause brachial plexus injuries, or significant force may have been required to prevent a more serious injury – i.e. asphyxiation – if a shoulder has been lodged behind the mother´s pelvic bone during delivery (shoulder dystocia). In these circumstances, it is unlikely that a claim for brachial plexus injury compensation will be successful.
When significant force has been used without justification, when birth-assisting tools could have been used but were not – or were used incorrectly – or when an emergency situation such as shoulder dystocia could have been foreseen and prevented, it should be possible to claim compensation for a brachial plexus injury – if the nerves in your child´s brachial plexus were stretched or torn, and the injury fails to heal within a reasonable amount of time.
Making a Claim for Brachial Plexus Injury Compensation
In order to make a claim for brachial plexus injury compensation, you will have to be assigned their “litigation friend”. This is straightforward process which just checks that there are no conflicting issues (for example if the father of the child assisted with the delivery and made the errors that resulted in an injury) and allows you to instruct a solicitor on behalf of your child.
Provided that sufficient evidence of negligence has been accumulated to support a claim for compensation for a brachial plexus injury, your solicitor will write to the hospital or NHS Trust with a “Letter of Claim” The “Letter of Claim” informs the NHS Trust that you are claiming compensation for a brachial plexus injury and requests a response from the Trust within ninety days.
If the NHS Trust concedes liability for your child´s injury, your solicitor will enter into negotiations with the NHS Litigation Authority to resolve your claim for the maximum amount possible. If liability is denied, your solicitor will discuss the option of court proceedings with you. This is usually a last resort, and often the issuing of court proceedings encourages the NHS Trust to reconsider their position with regard to liability – resulting in an out-of-court settlement.
How Much Compensation for a Brachial Plexus Injury
The settlement of compensation for a brachial plexus injury will be determined by the extent of the injury and whether or not your child´s condition could be improved with specialist treatment. Children suffering from some brachial plexus injuries – Neurapraxia, Neuroma, and Klumpke´s Palsy for example – can recover the full use of their arms with just physical therapy.
Even children suffering from the Erb´s Palsy condition can sometimes recover limited use of an arm after “nerve transfer” surgery. Consequently how much compensation for a brachial plexus injury can vary considerably; although settlements should take into account future medical expenses for ongoing specialist care, any future loss of income if the child´s mobility is limited, and the emotional trauma you have experienced due to medical negligence.
When the settlement of compensation for a brachial plexus injury is agreed, you will have to attend court to have the settlement approved. This is because it has to be seen that the settlement is in your child´s best interests. Thereafter, the settlement is paid into an interest-bearing account managed by the court, which you will be able to access on request for your child´s education and medical requirements.
Legal Advice about Brachial Plexus Injury Compensation
Although your child´s brachial plexus injury may heal naturally or by physical therapy in the near future, it is always in your best interests to discuss your legal options with a solicitor at the first practical opportunity. For this reason we have established a Medical Negligence Advice Bureau, which you are invited to call if you have any questions about making a claim for brachial plexus injury compensation.
Our solicitor will be able to provide helpful and impartial advice about claiming compensation for a brachial plexus injury – without any obligation from you to proceed with a claim or advance your enquiry any further. Our service allows you to concentrate on caring for your child, while we investigate whether there is a claim for brachial plexus injury compensation which may be worth your while to pursue.