Hypoxic brain injury

Hypoxic brain injury FAQs

• What are the risk factors for hypoxic brain injuries?

  Generally, a hypoxic brain injury cannot be predicted, but there are some characteristics of pregnant women and foetuses during pregnancy and birth which increase the risk. These include foetal growth restriction, non-reassuring CTG, emergency caesarean section, meconium contamination, chorioamnionitis and placental abnormalities.

• What complications can arise from hypoxic brain injuries?

  Hypoxic brain injury usually results in both physical and cognitive problems, such as limb weakness and disturbances of movement, balance and co-ordination. There may be spasticity or rigidity with increased muscle tone or abnormal movements including tremor, speech and language problems, incontinence and executive dysfunction. The most severe hypoxic brain injury usually results in a catastrophic injury necessitating a 24- hour care regime as the injured person has no independent living skills.

• How do I know if I have a medical negligence claim for a hypoxic brain injury?

  If you have been diagnosed with cerebral palsy, via some form of radiological investigation such as MRI scan, which shows damage to the basal ganglia or watershed areas of the brain such as the hippocampi, subject to establishing that the condition was caused by either a failure to provide a reasonable standard of care in the antenatal, intrapartum or neo natal period, you can bring a claim for medical negligence. The most common cause of a hypoxic brain injury is a period of bradycardia during labour. This is where the oxygen supply to the foetus is compromised sometimes due to cord compression, and the foetus reacts with a reduced heart rate. The CTG trace will indicate when the bradycardia occurred and subject to whether it was a transient bradycardia in response to a contraction, or a “type 2” dip, immediate action is usually required to expedite delivery. If there is evidence to show that without good reason, a period of pathological bradycardia was not acted upon, there are usually good grounds for bringing a claim for the resulting injury.

• What evidence do I need to support my claim?

  The starting point is always the medical records, both Mum’s obstetric and the baby’s paediatric records. These should include the CTG trace and all the radiology, in particular any MRI scans. The records will be carefully reviewed to see whether they confirm the presence of a neurological injury and to assess how the pregnancy, labour and delivery were managed. Sometimes we also need to see the reports from any internal investigations such as route cause analysis or external such as a HSIB report. If there is reference to any internal protocols or guidelines, they will also need to be considered. However, the 2 most important pieces of evidence are usually the CTG trace and the MRI scan. Once we have the medical records, we need to obtain supportive evidence from experts in obstetrics, neurology and neuro radiology. Sometimes reports are also required from neonatology and neuro psychology experts.

  
  

• How do I claim compensation for a hypoxic brain injury?

  To succeed in a claim for compensation for a hypoxic brain injury, you have to prove that the only cause or the material cause, was negligent care. In this respect the duty is to provide a reasonable rather than gold standard of care. If we can establish that there were negligent failings in the care provided and that these failings, led to the hypoxic brain injury, you can claim compensation for the injury.  To pursue a claim, you will need to instruct a Solicitor and apply for funding which can include legal aid as that is still available for any neurological injury that occurs at birth or in the 8 weeks post-delivery. The other forms of funding include before and after the event funding. Once the supportive expert evidence has been secured, a letter of claim will be submitted, and the Defendant Trust then has 4 months to respond to the allegations that negligent care was provided which led to the hypoxic brain injury.  If liability is admitted, we need to obtain reports from quantum experts to assess the value of the claim. These will include care, accommodation, and therapy experts. Once all the quantum reports have been secured, a schedule of loss will be prepared and served on the Defendant with the quantum reports and this generally leads to settlement negotiations.

• How much compensation can I expect from a hypoxic brain injury claim?

  This depends on the extent of the injury and how it impacts on your day-to-day life. If you have a catastrophic brain injury requiring 24-hour care, the claim will have a significant value of many millions. If the hypoxic injury is less severe and you can self-care and work, the value will be significantly lower. Assessing the value of the claim is a forensic exercise analysing the evidence of numerous quantum experts and considering difficult issues such as life expectancy which impact on the future losses.

• How long do I have to make a claim after being diagnosed with a hypoxic brain injury?

  If you have the capacity to understand legal proceedings, there is a 3-year time limit for issuing proceedings. This runs from either the date of the negligence which caused the hypoxic brain injury, or if the presence of a brain injury is not known for some time, the date of knowledge of the brain injury. This date can be imputed on the basis that a reasonable person would have acquired knowledge by that date. However, in the case of a child, the 3 years runs from the date of the child’s 18th birthday and expires on the child’s 21st birthday. If the injured person does not have capacity, the time-period does not run during the period of incapacity. It is important to seek early legal advice on the limitation period.

• Can I make a claim on a ‘no win, no fee’ basis?

  Yes, as long as the no win no fee agreement is backed by a policy of either before or after event insurance to cover the costs of the expert’s reports and other disbursements such as court fees.

• Can I get legal aid funding for a claim?

  Legal aid is available for any neurological injury that occurs at birth or in the 8 weeks post-delivery, subject to meeting the means assessment.

• How long does it take to settle a hypoxic brain injury compensation claim?

  It depends on the extent of the injury and whether a final prognosis can be provided at an early stage. It is often the case that the full extent of the injury and the final prognosis is not known until the child reaches the age of developmental milestones, such as walking, self-feeding and starting school. Often the full extent of the injury is not known for a number of years. The expert neurosurgeon may also want to see whether the child makes any improvements in mobility and self-feeding (which are the 2 main factors in considering life expectancy) following a targeted care and therapy regime which is funded by an interim payment. It could therefore take in excess of 5 years to secure a final settlement but there will have been a number of interim payments made during the claim to fund the child’s needs.