If I make a claim for a cranial injury to a baby during birth, will I be required to go to court to recover compensation or are out of court settlements made for this type of injury?
Litigation is not always necessary in order to make a successful claim for a cranial injury to a baby during birth, although proceedings may have to be issued in order to force a settlement from the HSE or a hospital’s insurance company. However, there are a number of reasons why a claim for compensation for a cranial injury to a baby during birth may have to be resolved through litigation.
In contrast to a car accident for example, when one negligent third party causes injury to another driver, claims involving medical negligence* are rarely as clear cut. There is often an element of doubt as to whether the actions of a medical professional constituted negligence under the circumstances, which allows a defence to be made against a claim. This does not mean that a claim is likely to be unsuccessful; only that the strength of the case must be ascertained before the case is initiated to ensure it has a good probability of success.
When compensation for a cranial injury to a baby during birth is claimed, the amount of compensation necessary to cover a lifetime of medical care can be substantial. As with any personal injury* claim, when the compensation amount being claimed is considerable, court action is usually necessary in order to resolve the case, and almost certainly to recover the maximum entitlement to compensation.
Regardless of whether a settlement can be reached by direct negotiation with the HSE/insurance company for the hospital, the courts will always need to be involved at some point in cranial birth injury claims. This is because although a parent or legal guardian usually makes the claim – as a ‘Next Friend’ – a compensation claim for a cranial birth injury is always made on behalf of the child.
Before a claim for a cranial injury to a baby during birth can be made, an application needs to be made to the courts to have a parent or legal guardian (or other responsible adult) accepted as a ‘Next Friend’, and a judge must authorise this appointment.
If litigation does not prove to be necessary and a settlement for the compensation claim for a cranial birth injury is agreed, a judge will be involved for a second time to assess whether the compensation being offered is appropriate, and if it will cover all aspects of a child’s injuries; including the cost of future medical treatment.
You should not be discouraged about making cranial birth injury claims because court action may be necessary as if you use a medical negligence* solicitor to prepare and pursue the claim, your involvement will be kept to the minimal possible level. You will then be able to concentrate on caring for your baby, while your solicitor deals with the legal aspects of the case.
It may also be possible to come to an arrangement about legal costs and fees, and even to receive a proportion of compensation before the claim is resolved, although this will need to be discussed beforehand with your chosen solicitor.
What is important is for you to seek legal advice promptly and to arrange for an investigation of your case to be conducted. You will find out if you are eligible to make a claim, the strength of your case and how much compensation can be recovered before you have to make a decision about pursuing the claim.