Brain injury medical negligence claims

Brain injury negligence claims arising from medical negligence commonly involve mistakes in maternity, neonatal, anaesthetic or medical care which cause permanent damage to the brain and severe or catastrophic disability or loss of function. Brain injury can also be the result of negligent responses to medical emergencies, such as heart attacks, strokes, brain haemorrhage, infection and sepsis or trauma, which may lead to cardiac or respiratory arrest, vital organ failure or damage to the brain.

Scientific understanding of the full effect of brain injury negligence in some areas of healthcare is still evolving, but in certain cases may lead to brain injury compensation claims, such as the long-term subtle effects of brain injury, such as autism/ASD and ADHD, or brain injury caused by teratogenic drugs in pregnancy, such as sodium valproate.

The effects of a brain injury can vary from life-threatening or devastating physical disability, such as cerebral palsy, to more subtle or hidden cognitive, sensory or behavioural difficulties. Most people with brain injury experience a range of deficits and impairments which, combined, result in their unique disability and associated needs.

The effects of brain injury can include one or more of the following:

• physical disability and loss of function, such as gross or fine motor (movement) difficulties;
• difficulties with speech and language, feeding or swallowing;
• impaired cognitive or intellectual function and mental capacity;
• memory loss, personality and behavioural changes;
• sensory impairment, such as hearing loss, cortical blindness, or loss of smell and taste;
• neurological conditions, such as epilepsy, fits or seizures;
• coma, PVS (permanent vegetative state) or minimally aware state of consciousness;
• fatal injury (death).

Most medical negligence claims, including those which relate to brain injury, involve one or more of the following errors:

• failing to recognise and manage a patient’s risk;
• failing to advise patients about risk and obtain informed consent to treatment;
• delayed or wrong diagnosis;
• delays or failing to refer the patient for specialist review or hospital treatment;
• delays or errors in treatment, medication or surgical technique;
• monitoring errors;
• failing to carry out, chase up or correctly interpret tests, investigations and scans.

Mistakes in maternity care during pregnancy, labour and delivery which lead to brain injury claims often involve:

• delays and failures leading to HIE (hypoxia, asphyxia, oxygen deprivation); 
• hyperstimulation (oxytocin or syntocinon), VBAC and uterine rupture;
• traumatic injury from incorrect use of forceps or Ventouse suction;
• management of obstetric complications, such as:
  • pre-eclampsia, placental abruption and obstetric haemorrhage;
  • impaction of the fetal head;
  • vaginal breech delivery;
  • shoulder dystocia;
• complications of twin pregnancies, such as twin-to-twin transfusion syndrome (TTTS).

Newborn babies can also suffer neonatal brain injury as a result of negligence relating to: 

• intubation, resuscitation and ventilation (such as hypocarbia);
• cooling errors after HIE brain injury;
• meconium aspiration;
• neonatal collapse; 
• jaundice, leading to kernicterus;
• hypoglycaemia;
• hyponatraemia; 
• meningitis, sepsis, HSV (herpes simplex virus) or group B streptococcal infection (GBS);
• rhesus disease or haemolytic disease of the fetus and newborn (HDFN);
• VKDB – vitamin K deficiency bleeding.

Brain injury medical negligence claims for adults often involve healthcare mistakes relating to:

• infection, (meningitis, sepsis, HSV/encephalitis, TB);
• surgery, anaesthesia, ventilation, anaphylaxis, perfusion errors;
• delayed diagnosis and treatment of brain tumours;
• intracranial bleeding and subarachnoid haemorrhage (SAH), aneurysm;
• venous thromboembolism (VTE) ,embolism, thrombosis, blood clots;
• medical emergencies such as heart attack, respiratory arrest and stroke.

The amount of compensation that someone with a brain injury can claim depends on the type and extent of their injury and disability, their needs arising from their disability and their individual circumstances, so no two clients’ claims are ever exactly the same.

Our most severely disabled child clients, who have suffered cerebral palsy and severe neurological damage from birth injury or neonatal brain injury may, be totally dependent on others for their care and support with daily activities throughout their lives. They may be unable to walk, feed or look after themselves, or communicate with others. They may have impaired vision or hearing, or severe learning disability. Some may be physically disabled but have retained intellect which means they can study, work and live independently as long as they have support. Other people who have had a brain injury may appear independent but suffer from ‘hidden’ problems, such as memory and concentration, fatigue, sensory impairment or problems with behaviour. The impact of their injury may only emerge over time as they struggle with new situations, returning to school or work, or living independently.

Brain injury compensation claims are complex and must be handled by specialist solicitors with the expertise and experience to secure the compensation that will meet the individual client’s lifelong needs. Our medical negligence lawyers are top-rated specialists in severe brain injury and birth injury claims. We work with our client families and our experts to ensure that our brain-injured clients receive their full entitlement to compensation in the way that best meets their needs.

Depending on the injured person’s circumstances, their claim may include compensation for:

• pain, suffering and disability;
• costs of care and case management;
• costs of rehabilitation and therapies, such as:
  • physiotherapy;
  • occupational therapy (OT);
  • speech and language therapy;
  • hydrotherapy;
  • psychological counselling;
• costs of private medical treatment or surgery;
• increased costs of suitable accommodation or home adaptations; 
• loss of earnings and pension;
• adapted vehicles, specialist equipment and assistive technology; 
• support for special educational needs (SEN) (if a child);
• Court of Protection and deputyship.

We understand that the families of our brain-injured clients may worry about how their vulnerable child or young adult will manage a large compensation settlement.  Our clients are usually reassured to discover that there are many ways in which we routinely help protect our clients’ interim payments and settlements, to ensure that the money is used in the best way to meet their lifelong needs. Some of these ways include:

• asking the court to approve any settlement for a vulnerable client, to ensure that it is in their best interests;
• carefully negotiating settlements to ensure the best provision for the client’s lifelong needs, such as with guaranteed, index linked annual payments (PPO), so that money is always available for essential care;
• appointing a Court of Protection deputy to handle the legal requirements and administration involved in a ‘protected party’s’ compensation fund, and to provide quick access to appropriate funds when needed to pay for the client’s care and other needs arising from their disability;
• advising on personal injury trusts for clients who are not eligible for Court of Protection deputyship but want the protection of a trust to safeguard their money.

We can also help shield our most vulnerable clients from media reporting or others’ attention when they receive their compensation by securing a court order protecting their anonymity.

Learn more about how we protect our vulnerable clients or talk to one of our brain injury specialist solicitors.