How much is a NHS birth injury litigation claim worth for a Birth Injured Child? It depends on several factors and is assessed during Interim/Quantum.

I’ve tried to set out as simply as I can what factors will influence the amounts. The amounts allocated for certain sectors are called ‘heads of claim/loss’.

Your legal team will look at the most generous figure provided by their experts, and the defence at the least generous. So be prepared for the high you’ll get with your team’s figures, and the low, when the defence counter it.

How much is a Medical Negligence claim worth for a Birth Injured Child?

This very much depends on several factors, and are designed to compensate for financial and non-financial losses for life. The idea is to put the child back in the position ‘but for’ the injury. Which for us as families, is pretty laughable.

The value of a medical negligence claim is based on:

The pain, suffering, and loss of amenity, both physical and psychological
The out of pocket expenses incurred as a result of the negligence, both past and future

Because of this compensation is divided into two areas:

General Damages

Pain and Suffering; Compensation for physical and emotional suffering caused by the injury. A fixed value range is assessed using the Judicial College’s ‘Guidelines for the Assessment of General Damages in Personal Injury Cases’. For guidelines click here

Loss of Amenity; Damages for how the injury affects the child’s quality of life including the ability to participate in normal activities.

Special Damages

Compensation awarded for special damages is to cover any financial losses directly linked to the clinical negligence; these include

Loss of future earnings. Calculated on the expected educational achievement based on the parents level of education and earning capacity.
Medical and care costs; Medical treatments, surgeries, medication, and long-term care. It also accounts for future care needs; professional care, therapy, and equipment.
Cost of travel and accommodation; Funding for a house with sufficient space for carers and therapies plus a suitable vehicle with agreed travel costs.
Adaptations to the house; to better accommodate the child’s needs and disabilities.
Equipment and aids; to include wheelchairs, aids, and specialist equipment to help the child live more comfortably.
Educational support and specialist care; if the child needs additional tutoring or assistance to cope in school.

Other Factors

Those are the basic principles of compensation for damages, but other factors do play a part.

The severity of the injury
Medical experts will assess how the injury affects the child, how much care they will need for life, long term prognosis and so on.
The life expectancy of the child
Experts use standard life expectancy charts to assess life expectance. Such factors include mobility and tube feeding. Courts use the ‘Ogden Tables’ which allows very little leeway for individual cases and can be unfair to some claimants in my opinion. More information here and Further information here
The percentage at which the claim is settled
Most claims are settled out of court, either by the Trust admitting the claim or at mediation (ADR – alternative dispute resolution). Some are agreed on a percentage basis, with the Trust accepting a degree of blame, but also denying they are entirely to blame. So, they may agree on 70% negligence and the remaining 30% was just bad luck. The claimant can agree to this or risk going to court where they either win entirely or lose entirely. The legal team will know the strengths and weakness of a case and will advise accordingly. If a 70% negligence in agreed and the claim assessed in interim, only 70% of whatever figure is reached and agreed is awarded.
The discount rate
The Lord Chancellor reviews the discount rate every five years and it is set according to various scales. The discount rate is applied to future damages and at a basic level is designed so that the amount of compensation awarded, when invested, is enough to pay the claimant for care etc, but should not make a profit and should not fall short. Further information here
Interim Payments
Interim payments are usually made when the case is being quantified to cover costs such as care, adaptations, equipment, therapy etc. These are deducted from the settlement figure as they have been paid in advance of settlement.
Contingencies (Provisional Damages Award)
The court may account for future events such as the child’s condition deteriorating and therefore the level of care rising, for example, developing epilepsy. If this occurs then the additional money is available, and if it doesn’t, then the money isn’t provided. You must have a court order for a Provisional Damages Award.
Compensation Recovery Unit
Certain benefit payments most likely to affect children (DLA and PIP) can be reclaimed via the Compensation Recovery Unit (CRU), part of the Department for Work and Pensions. The defendant must inform the CRU of an award. A maximum of 5 years’ payments are reclaimed and this is taken from the compensation amount, although this is not noticeable to the claimant. It ensures that the claimant is not paid twice for the same injury. Further information here

The cost of litigation is covered by the Defence if the claim is successful. With a conditional fee agreement (no win/no fee) any costs are discussed and agreed at the outset with the legal firm, with claimants often paying nothing. However, it is too diverse an issue to make generalisations here.

It should be noted that not all birth injuries are covered by the NHS and therefore may not fully financially compensate the injured party. A case in point is that of private midwives. They must have indemnity insurance but their cover is usually not as as comprehensive as that of the HNS Insurance scheme. Another instance is where the injury occurs in a setting outside the hospital, such as a hotel, and not attributable to the NHS. In this case the cap would be the cap on that business’ liability.

Sources as listed above including a further Guide to Compensation from AvMA