​Compensation for brain injury victims of clinical negligence

I was recently approached to offer an opinion on the average level of compensation awarded in clinical negligence claims where the individual has suffered a brain injury and this got me thinking, is there an average? So I thought I would set out the types of brain injury we often encounter and the levels of compensation.

The starting point is the fact that brain injury associated with clinical negligence can take many forms. However, it is only the avoidable aspect of the brain injury in respect of which individuals can claim compensation.

Examples of the types of brain injury clinical negligence claims we see here at PotterReesDolan include:

• child brain injury associated with delays and negligence during labour and delivery;

• brain injury associated with delayed diagnosis and treatment of bleeds on the brain (such as subdural haematomas);

• misdiagnosis of brain injury, such as a bleed or aneurysm which leads to inappropriate treatment; and

• delay in diagnosing and treating any other number of serious conditions which leads to brain injury (such as delay in treating cardiac conditions etc).

Where an individual has sustained an avoidable brain injury, i.e. without any negligent delay in diagnosis or treatment they would have made a full or near full recovery, then they can recover compensation for two things. The first aspect of compensation is called general damages, this is an amount of money awarded to an individual to represent the injury itself and the general effect the brain injury has on a person.

The figure for general damages is taken from past cases and guidelines known as the Judicial College Guidelines. The level of compensation awarded for general damages is between £1,650 for very mild brain injury with recovery in a few weeks all the way up to £307,000 for very severe brain injury impacting on all aspects of the individuals life and will be permanent.

The second aspect of compensation is called special damages. This is an amount of compensation to reflect to specific losses to that person. This element varies so much from person to person as no two people are exactly alike so no two people have the exact same level of need and loss even with potentially the same mechanism of brain injury. Special damages will compensate people for things such as their loss of earnings, potential need for alternative accommodation, need for care and need for therapies.

Clearly someone who was working and is relatively young with a high level of need for care and therapies will be awarded more compensation than an older person who was already retired and perhaps only needs someone to look in on them from time to time. Compensation is not a windfall, it is there to meet a person’s specific needs so where the needs are more compensation is higher and where the needs are less compensation is lower.

There are also other factors which will influence the amount of compensation someone may be awarded for a brain injury caused by clinical negligence such as whether the individual had any other conditions before the brain injury which may have lead them to retiring early for example or even where a claim may not be successful if run all the way to court. In those circumstances the risk of going to court and not recovering any compensation can lead to a lower amount of compensation being considered a good outcome for the individual.

Over the last 12 months Helen Dolan, head of the clinical negligence team, has secured several significant settlements for individuals who suffered avoidable brain injury:

• £5.6 million (gross) for a young woman in her 20s who suffered a brain injury following a delay in being treated for a cardiac attack.

The figure is given as a gross amount as the claim settled for £2.6 million as a lump sum with the rest being paid on a yearly basis for the rest of her life to ensure she will always be able to pay for the care and therapies she needs;

• £2 million for a woman whose GP failed to diagnose a brain haemorrhage.

The lady in question was retired and her partner, who was also retired, cared for her meaning she only needed private carers a few times each day. The figure also reflected the risks associated with the case as it was not as clear cut and there was a risk that if the matter went to trial she may loose and recover nothing;

• £11.7 million (gross) for a child who suffered brain injury in the form of cerebral palsy due to errors made during her birth which meant she was deprived of oxygen during labour and was born in a poor condition.

Without the errors she would have been born earlier and would not have suffered any injury. This figure is very significant as the child will need specialist care and therapies for the rest of her, she will never be able to work, will be in a wheelchair for life and will always need a lot of support. The figure is again described as gross as there was a lump sum with the rest being paid yearly. An aspect of the compensation also reflected the level of additional care her parents had to provide her with due to her disabilities over and above what an average child would require;

• £8.25 million (gross) for a child who suffered brain injury after a delay in paramedics getting to him and giving him oxygen when he had a seizure at 3 years old.

The child is now significantly disabled and will be reliant on others to care for him for the rest of his life.

As special damages are specific to the person and their need it is impossible to give an average level of compensation for brain injury relating to clinical negligence, as can be seen from the above details the amounts vary greatly, however it is important that anyone who has suffered a brain injury which may be related to clinical negligence has specialist solicitors who will fully investigate not only whether they have a claim but also exactly what their losses are and what they will be in the future to make sure they are adequately compensated.

Hannah Bottomley is a clinical negligence solicitor with PotterReesDolan. Should you have any queries about clinical negligence issues and wish to speak with Hannah or any other member of the team please contact us on 0161 237 5888 or email Hannah on her profile page.