No matter what age they are, if your child’s health is threatened by a serious or long-term condition -including birth defects – which affects their physical and mental health and abilities, then you are faced with a range of fears and uncertainties: Fears for your child’s future and for their long-term future care – particularly once you are no longer there; and uncertainties as to what you can do to cope with or manage this situation.
If you feel that medical negligence is or may have been a factor in your child’s condition, then there are steps you should take sooner rather than later. Under general Personal Injury legislation, there is a 2 year statute of limitations on taking cases from the time that you know about the condition. There is an exception from the two year rule for those under the age of 18 years at the time the negligent act which caused the injury took place. The time period of two years does not start running in this case until the minor has attained the age of 18 years and has become an adult in law. The two year period actually starts running at the end of the eve of the potential claimants 18th birthday giving that person until the eve of the 20th birthday to either settle the claim or to issue legal proceedings in a court of law. In the case of those who are mentally incapacitated the two year period does not start running until full mental capacity is regained meaning that in many cases time never starts to run and the potential claimant can start legal action many years after the alleged negligent incident. This exception is not always straight forward or simple.
From an outsider’s perspective, that may sound like plenty of time, but as any parent can confirm, it takes time to come to grips with both the knowledge of your child’s condition and the immediate and long-term changes it makes to your own life and to the life of your child. And in the meantime, you are coping on a day-to-day basis with a child who has, for example, cerebral palsy or brain damage, and the high daily demands upon your energy and personal resources which this involves.
The first hurdle is to get an accurate, independent and objective diagnosis together with an indication of the level and kind of long-term care which your child needs. Some parents find it hard to get all the information they need but long-term care should incorporate a supportive environment and access to the resources your child and family need. This may include medical care, the physical environment in your home, professional care, and educational resources.
It sounds obvious that you will need this kind of support but many parents feel a huge sense of guilt about looking for help with their own child, which often makes it harder for them to come forward and take a Personal Injury case in the first place. Once you have taken the decision, then your solicitor can help you through the process as follows:
1. Go through a full history of your recollection of events surrounding the birth.
2. Examine the medical records
3. Review the costs involved in taking a case
4. Estimate the compensation needed to provide long-term care for your child
The most important thing that your solicitor should do, is shoulder some of the burden, and carry some of it with you, in providing a compassionate and understanding service, focussed on your child’s and your families needs.
The Court process is not easy, and sometimes can feel deliberately obstructive. Only this week Justice Mary Irvine noted that a radical overhaul of how medical negligence cases are managed is needed, as parents of catastrophically injured children feel the litigation process is “cruel and disadvantageous”. Families of those bringing cases over brain damage feel “a huge sense of grievance. The court process does not give them what they expected at the start and delay is part of that,” the judge said in the High Court.
For further information, you can contact me, Deirdre Burke, on: 0402 2437008 or email me at Deirdre.Burke@dmburke.ie.