subject: Cerebral Palsy Claims Solicitors Warn About UK Government Proposals [print this page] Cerebral Palsy Claims Solicitors Warn About UK Government Proposals
Cerebral palsy claims solicitors contend that UK lawyers would not be prepared to run many such claims on a "no win - no fee" basis, with the result that claimants, sometimes with very severe disabilities, would be left with no compensation if the UK's coalition government's plans to remove public funding go ahead.
Kenneth Clarke, the Justice Secretary, claims that funding by conditional fee agreements, "CFAs", will fill the void created by the planned withdrawal of legal aid.
Solicitors point out that, whereas the vast majority of personal injury cases succeed, National Health Service Litigation Authority figures reveal that only at most half of clinical negligence cases do.
The main reason for this is that thelegal test for clinical negligence is such that if the defendant doctor can produce a reasonably qualified doctor to support the treatment that was given, or can refer to a leading textbook, the doctor is likely to be able to successfully defend the claim. Furthermore to win,the claimant must also prove causation of loss on a balance of probabilities which is frequently difficult.
Another problem is that expert evidence is very costly in cerebral palsy claims. Many are complex injury claims, where reports from large teams of experts are usually required and in total average around 42,000.
Once legal aid is obtained a medical report is obtained from an obstetrician and sometimes also a midwife on whether negligent mistakes were made by their counterparts. If positive a report from a paediatric neurologist is obtained on whether that mistake caused the cerebral palsy, rather than some other cause.
Additionally a report from a neuroradiologist on a child's MRI brain scan can help to establish causation.
Quantum of successful cerebral palsy claims can run into many millions. Reports are obtained from many experts including nursing, computer, employment and housing experts.
If the government also implements recommendations put forward by Lord Jackson, successful claimants will not be able to recover from defendants the cost of expensive insurance policies to cover these disbursements if they lose their cases. Solicitors are neither bankers or insurers and to expect them both to fund disbursements at this level and to risk losing this sort of money if the claim fails is clearly nonsense.
Accordingly any UK parent with a child with a possible cerebral palsy claim would be well advised to apply for public funding immediately.
