Paul v Wolverhampton NHS Trust

This is a case surrounding secondary victims which has implications for anyone going through a medical negligence claim for a birth injury to a child.

A very useful and informative podcast has been released explaining the implications of this.

All credit to the original poster and author.

How does this affect families?

As a mum giving birth to a child who suffers a birth injury, there is currently no compensation award for the financial losses they incur, they are secondary victims. Parents lose their careers, financial security, and pensions as a result of the damage incurred to their children and instead become lifelong carers.

Dads witnessing the event can sometimes claim a small amount for PTSD/shock, however, this ruling now means even that will now be difficult to achieve. Mums who themselves have been damaged have previously been able to claim small amounts for PTSD and personal injury, the PTSD element may now be difficult to recover.

What do parents receive?

There is very little consideration given to parents for their financial losses. There is past gratuitous care – an amount calculated by a care expert at a specific amount per hour (usually pence) at different ages of the child’s life. Care that is over and above the care given to atypical children. ie child under 5 needs 24/7 care anyway so no award. This is known as past care and is paid at the end of the child’s settlement and is part of the child’s award.

There is gratuitous care, an amount paid from the child’s fund post admissions or settlement based on hours of caring and recommended by the OPG to be based on minimum wage. Parents giving medication, changing tubes, etc.

A very kind and experienced KC responded to my questions for clarity on this matter:

iv.                 There is no prospect of a secondary victim being able to claim for the loss of career or general loss of earnings.  Such a development of the law would require an appeal to the Supreme Court and I think it almost certain that the Supreme Court would say that such a fundamental extension of the common law is not permissible and that it must be for Parliament to legislate to provide for a parent to recover damages in such circumstances.

within personal email from Clinical negligence KC 2023

What about the parents?

Typically parents’ driving force in bringing a claim is to ensure the future security of their child. Yes, they get to live in the adapted houses and a good Deputy understands and respects the importance of the parent’s role and how much they save the child’s award by having to and usually wanting to take on most of the care. Good case managers work well with the parents and give support when asked and needed. There is, however, a national shortage of carers, and even if 2 to 1, 24/ 7 care is awarded in the settlement, actually providing that care usually falls to the parents, especially when there is a no-show or illness or simply unable to recruit. It is not usually a choice of the parents but a case of doing what is needed for the love of their child. What is the alternative? Hopefully, at some point in the future, the important role of families will be better recognised in our cases.

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