Case Study - Brain Injury at Birth
The People
S was born with severe brain damage because of a lack of oxygen for nearly 3½ hours before her birth. She was left with severe visually impairment, with profound developmental delay and epileptic. Her mother has had to bring up S on her own although her parents and family have been wonderfully supportive.
The Problem
There are many hurdles to overcome in cases such as this. We had to prove not only that the treatment S and her mother received at the hospital was sub-standard but also that that sub-standard treatment caused S’s injuries. Whilst the hospital initially accepted some fault, they later argued that as S would have suffered severe brain injury in any event they could not be held responsible for all of S’s injuries.
The Solution
With the support of legal aid, supportive evidence was obtained from a number of experts and the case was listed for a 4 week trial in the High Court in London. However, after the parties had exchanged their expert evidence we took the opportunity to raise formal questions of the hospital’s experts. Targeting what we considered to be an area of weakness in the other side’s position we asked whether the delay admitted by the hospital had “contributed” to S’s overall injuries. The answer given by one of the experts was that it had made in fact a “significant” contribution.
In certain circumstances someone who has suffered an injury can still recover 100% of their damages where they can show that the other side’s negligence has made a “material contribution” even if they cannot prove that “but for” the other side’s negligence they would have avoided all injury.
In the light of the concessions made by the other side’s expert we were able to persuade the lawyers that we were now virtually bound to win at trial and they eventually backed down and agreed to an interim judgment for S with damages to be assessed by the court at a later date.
These cases require the use of a number of experts from many of different specialist areas including occupational therapy/care, assistive technology, speech and language therapy, accommodation and educational psychology.
Following a round table meeting with the hospital’s legal team an “out of court” settlement was reached involving payment of a substantial lump sum as well as annual periodical payments for the whole of S’s life. This was equivalent to a traditional lump sum award of about £5million.
Who to contact
Marek Bednarczyk
Partner
Email
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