An outline of the claims process
There is a set process and time limit for making a medical negligence claim, and brain injuries are no different. If your brain injury has been caused by medical negligence, an outline of the process is below. The process differs slightly for brain injuries caused by an accident.
Contact a lawyer
It seems obvious, but the first step in making a claim is to contact a specialist brain injury solicitor for advice. It is essential to use a solicitor who regularly handles brain injury cases to ensure they understand the complexity of the claim and the impact the injury has had on your life.
Funding a potential claim
If your claim has merit, the first thing to discuss with your lawyer is your options to fund your claim. The majority of claims of this nature are taken on a no-win, no-fee basis, but there are other options available, for example, legal expenses insurance or private funding.
Legal aid is a type of public funding available via the Legal Aid Agency for children who suffer from brain injuries resulting in severe disability, which arises during pregnancy, childbirth or the eight-week post-natal period.
We are one of a select number of law firms that can offer legal aid as a funding option if your child has suffered a brain injury caused during pregnancy, birth or within eight weeks of birth.
Obtaining your medical records
Once the funding method has been agreed, the next stage is to request your medical records to see your treatment history. Our in-house experts will review your medical history in detail to establish whether you have a claim.
Expert medical opinions
It will be vital to have the opinion of a medical expert to confirm there has been a breach of duty and show the areas where the treatment you received was sub-standard. In the case of brain injuries, it is almost always necessary to seek the expert opinion of more than one medical expert to prove your claim successfully - this could be a neurologist, neuropsychologist, neuropsychiatrists and physiotherapists.
The claim value
Once we have the expert opinions from the medical specialists, we can start to assess the actual value of your claim, taking into account your 'general damages' awarded for your pain and suffering and your special damages, which relate to your out of pocket expenses.
Setting out the details of your claim
Once we have all the information and details from the medical experts, we will draft a 'letter of claim'. This is the formal approach to the defendant setting out the details of the allegations and the claim. The defendant will have four months to investigate and respond to the letter of claim in a formal 'letter of response'. Their response may admit liability or contest some or all of the allegations.
The letter of response
Depending on the defendant's response, it may be possible to move straight to settlement discussions if they admit full or partial liability. The settlement process involves both parties agreeing on a settlement value. This process often involves further medical evaluation, input and expertise to determine the lifetime needs and potential expenses that the settlement should cover.
If the defendant contests the allegations, we will consider a further letter of response, including the intention of going to court.
The majority of claims do not make it as far as trial. Instead, the court tries to outline a timetable to enable both parties to resolve matters themselves.
As with all medical negligence cases, there are strict time limits on claiming compensation for a brain or head injury, usually three years or three years from the date of knowledge, which is the date you first became aware of the issue. Therefore, you must seek immediate legal advice from an expert as soon as you know of a problem.
The time limits for babies who suffered a brain injury as a result of a mismanaged birth are different. The child's parents or guardians have until the child's 18th birthday to claim on their behalf. If the child has the capacity to claim themselves, once they have reached their 18th birthday, they have three years to make a claim.