October 4, 2019

Litigation – Experiences and views of parents of children who suffered brain injuries at birth

We have taken a detailed look into the PhD research study of Dr Dawn Benson, Sociologist and a senior lecturer at Northumbria University, which examined the experiences and views of parents of children who suffered avoidable brain injuries at birth and have subsequently been through the litigation process.

Dawn‘s son Michael was injured at birth as a result of clinical negligence and she has used her own personal experiences and the experiences of the other participants to answer the question ‘why do parents of children who are avoidably harmed in the birth period pursue claims for clinical negligence?

The research includes some very moving, thought provoking and poignant quotes from the parents involved which gives a real insight about the effect a clinical negligence claim for compensation has on a family.

As clinical negligence solicitors, we found this research study incredibly emotive. It is invaluable for clinical negligence lawyers to read to assist them in their understanding of why the parents pursued litigation in the first place and how they are feeling during the legal process itself. By understanding more about this we can tailor our approach and advice to ensure that some of the concerns identified are minimised or avoided.

Why the parents pursued litigation

In the study, the main reason parents gave for initiating litigation was to get an explanation about what had happened to their child, as well as what would have prevented the injury from occurring. This strongly accords with the reason given by many of our clients.

It was interesting to see that the study highlighted that, as time progressed, the focus did sometimes shift away from the notion of getting answers towards ensuring that the child had financial security for the future. In our experience this shift ties in with a realisation on the part of the parents that sometimes they are not going to get the full answers they had hoped for and the dawning realisation of the practical and financial needs of the child, such as the amount of care and equipment required.

A parent in the study stated:

“They didn’t admit liability for it for seven years. And it wasn’t really until a long time down there that it kind of… I’d got over that huge anger and thought, you know, actually we need this because they only thing that keeps me awake in my exhaustion at night is, God, what’s going to happen to her when I’m dead…”

Within the study it was shown that there was no one clear reason why parents pursue claims for clinical negligence, more a combination of both emotional and practical factors which included:

  • wanting answers about what happened, finding out the truth – they could see through inconsistencies and lies and often sensed a cover up;
  • protect others – make sure it does not happen again;
  • being angry and wanting resolution;
  • wanting to be financially independent of the state for support services.

The research shows that litigation often fails to satisfy claimants in respect of some of the above.

A parent in the study stated:

“Unfortunately whilst litigation provides some general timelines of events, parents generally fail to gain resolution as they usually want dialogue with the individual professionals and the organisations which are responsible for the systems and structures that the professionals were working in”

Making contact with a solicitor

Making contact with a solicitor was highlighted as a significant step in the process of regaining a sense of control in their lives after the birth injury event.

Half of the families interviewed in the study found solicitors through the charity AvMA (Action against Medical Accidents).

AvMA have been praised highly by the families and have been described as:

“a source for gaining practical advice from compassionate people” and the help they offered was described as “critical in helping them to take control of things, mostly by locating a solicitor with experience of such claims.”

 What parents said about the litigation process

Clinical negligence lawyers know that being engaged in litigation is extremely stressful for clients. In cases involving injured children the parents already have the stresses associated with caring for an injured child and so this together with the litigation is considerably tough. It was therefore useful to consider the following thoughts on the litigation process highlighted by the study:

  • The litigation team provide much needed reassurance that they were doing the right thing;
  • Parents found that in their interactions with professionals they often needed to protect their own autonomy;
  • The process was like living in a goldfish bowl;
  • Parents rely on deputies for guidance about how they can use the award to maintain their lifestyle choices.

These points can be seen as a useful message to clinical negligence lawyers and can help us see what we can do to make things better for the parents at the various stages of the process and how the way we react can impact on how a parent is feeling.

A particularly extreme example of this is a quote from the study in which, on conclusion of a case a lawyer said:

“Oh, hello, lovely to see you. Congratulations”. The parent recounted “And I just felt it was so inappropriate, because, really, what congratulations – they’ve admitted that somebody was wrong and ruined my life…”

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