Brain Damaged Girl Would Be Denied Access to Justice Under Government Policy
A specialist Medical Negligence Lawyer at Simpson Millar explains why a little girl left severely brain damaged by hospital negligence would be denied access to justice by Governments disgraceful policy towards victims of medical blunders.
"Three years ago I helped the family of a little girl win a multi million pound settlement for a failure to diagnose a rare blood disorder. The girl, three years old at the time of injury, suffered with (undiagnosed) Factor 13 deficiency, a type of Haemophilia, a condition that affects the bloods ability to clot. There are many different types of Haemophilia but Factor 13 is rarest, only occurring in 1 in 5 million births. If Factor 13 is not present in your body, an unstable clot will form. Eventually, this clot breaks down and causes continued bleeding. This continued bleeding is often associated with trauma and injury. The deficiency is usually picked up by blood tests when a child experiences unusual signs of excessive bleeding. If the signs are missed, and the condition not diagnosed, it can have devastating consequences as I found out when I acted on behalf of the little girl's family.
She appeared a normal, healthy little girl until the age of 3 when she fell off her bed at home and banged her head on the wall (every parents worst nightmare). At the hospital, a brain scan revealed she had a swelling on her brain that contained blood. This swelling was pushing her brain to the side of her skull. Sadly, brain damage occurred as a result of the swelling. She was left blind and brain damaged and will need care for the rest of her life.
The family originally approached me because they believed an avoidable delay in operating on the haematoma mighty have caused the little girl's brain damage. A medical report requested by me on the case cleared the hospital of any wrongdoing. It concluded that the Doctors had acted quickly to recognise the bleed and operated within an appropriate time scale.
One of the little girls treating doctors then conducted a simple blood test which revealed she had Factor 13 deficiency.
She was immediately put on drugs to prevent her suffering bleeds in the future.
Now that I had a clear diagnosis, I decided to look into the little girl's medical records again. I discovered that 11 days after her birth, her mother had taken her back to hospital because she was suffering from excessive bleeding from her umbilical stump, where the cord had been cut. After further research I discovered that this was a classic feature of Factor 13 deficiency. With an earlier diagnosis and appropriate drug therapy, the question arose as to whether the little girl would have avoided brain damage at the age of 3 when she fell off the bed and knocked her head? This is something I had to prove to make a successful case and win the girl much needed financial support. To further my investigations, I instructed a Consultant who specialised in medical care for newborn infants. That Consultant did not however come back with a positive report. It was his opinion that because the blood disorder was so rare, and only affected 1 in 5 million births, it would be inappropriate to criticise Doctors for not recognising its signs. Most Doctors, he said, would never see a case like this in the whole of their careers.
Not satisfied, I pressed on with my investigations.
I consulted another expert who concluded that the hospital was in fact negligent
in not diagnosing the Factor 13 deficiency If she had been given a simple blood test by a Specialist when her excessive bleeding was brought to their attention, she would have been given the appropriate drug therapy. This would likely have led to her avoiding the severe bleed that caused her brain damage when she fell off her bed.
Predictably, when I presented the case to the hospital Trust they denied responsibility. They said they could not be held responsible for not diagnosing a disorder that most Doctors would never see in their lifetime. Court proceedings were issued. The hospital fought the case almost to the steps of the Court but in a triumph for the little girl and her family, they settled out of Court only a couple of weeks before the Trial date. I was successful in securing a multi million pound damages award for the little girl. The compensation settlement provided much needed financial support and assistance for the little girl and her family who had been left at breaking point by her disability which necessitated a significant amount of care which was provided by the family.
This was a very difficult and challenging case. I was, after all, arguing that there had been a negligent failure on behalf of the hospital to diagnose a condition which was so rare it only occurred in 1 in 5 million births!
The claim was only made possible because the little girl and her family had the benefit of Legal Aid.
It is vanishingly unlikely that this little girl's case could be brought today because of the Governments disgraceful policy towards victims of medical blunders,
including injured children.
Legal Aid and Laspo
As of 1st April 2013, the new Legal Aid, sentencing and punishment of offenders (LASPO) bill came into effect. Amongst other reforms, the bill drastically changed the nature of Legal Aid and had significant implications for victims of medical negligence.
Prior to 1st April 2013, anyone who suffered injury or illness as a result of clinical negligence
may have been eligible for Legal Aid. Legal Aid ensured that those who did not have the means to pay for representation could still access legal support to investigate their medical negligence claim.
However, since the 1st April 2013 changes, the majority of people injured in medical accidents are no longer able to apply for Legal Aid to fund a potential medical negligence claim.
As of 1st April 2013, public funding was withdrawn for all adults, but also for children unless they met very strict conditions. The only exceptions are claims concerning neurological injuries (such as brain injury) to children which result in severe disability. These are still covered by Legal Aid, however to be eligible, the potential negligence must have occurred during pregnancy, childbirth or in the 8 weeks following.
The little girl in the above case would not be eligible for Legal Aid today. Her neurological injury did not occur during pregnancy, childbirth or in the 8 weeks following (she was 3 years old when she knocked her head and the injury occurred).
It is very unlikely that without Legal Aid this little girl's case would have been taken on today by any clinical negligence specialist and even if it had been it is again unlikely that the case would have progressed beyond the initial experts report which was not favourable.
The Government's withdrawal of Legal Aid from the majority of medical negligence cases means that deserving but borderline cases (including those cases which would be very challenging to run) will now fall through the funding cracks and consequently thousands of victims of medical blunders (including little girls like the one above) will be denied access to justice.
The Government has also recently increased Court fees for claims valued at £200,000 or more to a staggering £10,000!
Such a fee would have been payable in the above case. It would be a bold lawyer who would gamble a £10,000 Court fee on a case as challenging as the one described above.
This little girls case is just one of many examples in which victims of medical negligence will now be denied access to justice because of the Governments disgraceful attitude and policy towards victims of medical blunders.
The Government is now proposing to cap costs to a percentage of any damages recovered in claims valued up to £250,000. Such a cap can never work whilst hospitals and their lawyers continue to unreasonably fight claims which should be settled, often to trial. A cap will make it impossible for victims of medical blunders to find a lawyer to represent them because the costs recoverable would not be sufficient to cover the costs of the case if the Claimant wins and challenging and borderline cases will have absolutely no chance. This is just another example of the Governments relentless, unfair and completely unjustified attack on victims of medical blunders"