Have I left it too long to claim childbirth medical negligence compensation for an Erb´s Palsy injury my son suffered at birth if he is already two years old?
Eoin P. Campbell, LL.B., Solicitor
Editor in Chief
Answer:
When a child is the injured party, they have two years from their eighteenth birthdays in which to make a claim for childbirth medical negligence compensation in Ireland. This is because minors – children under the age of eighteen – cannot by law instruct a solicitor or make claims for a personal injury in their own right.
Had it have been you – as a mother – who had sustained an injury attributable to medical negligence at childbirth, you would be time-barred by the Statute of Limitations from making a compensation claim for childbirth medical negligence but, as it is your son who suffered the injury, you still have the option to claim compensation for childbirth medical negligence on his behalf.
However, before initiating a childbirth medical negligence compensation claim, it is important to determine that medical negligence happened during the delivery process and that your son´s condition could have been prevented with a better level of care. It is also important to establish that your son´s condition is permanent, as some Erb´s Palsy injuries heal by themselves and you would not wish your son to undergo corrective surgery if it were unnecessary.
In order to determine childbirth medical negligence and the permanence of your son´s Erb´s Palsy injury, it would be advisable to speak with a medical negligence solicitor. The solicitor would arrange for a specialist physician to review the relevant medical records made during and after the birth of your son and ascertain that your son´s Erb´s Palsy injury was attributable to childbirth medical negligence.
Thereafter, the solicitor would apply to the District Court to enable you to represent your son in a childbirth medical negligence compensation claim acting as a “next friend”. A “next friend” has to be prepared to cover any financial liability should the compensation claim for medical negligence at childbirth be unsuccessful, so your solicitor will also discuss the potential cost of a claim for childbirth medical negligence compensation with you before any further action is taken.
Childbirth medical negligence compensation claims are not processed by the Injuries Board Ireland as they are most frequently resolved by medical opinion rather than tangible evidence and, should you accept the role of “next friend”, your solicitor will prepare the strongest possible compensation claim for medical negligence at childbirth and dispatch it to the negligent medical practitioner who was responsible for your son´s Erb´s Palsy injury.
It is quite common that liability will be admitted by the negligent medical practitioner and a settlement of compensation for childbirth medical negligence negotiated between your solicitor and the medical practitioner´s insurers; however, you will still be required to appear in court to have the settlement of childbirth medical negligence compensation approved by a judge.
The process of making childbirth medical negligence compensation claims may take over a year depending on the extent of your son´s injury and the care he may require in the future and, therefore, in order to provide you with the funds to pay for physical therapy for your son and possible corrective surgery as soon as possible, it is recommended that you speak with a medical negligence solicitor at the first practical opportunity.