The dangers of early settlement in child brain injury claims
I have for many years represented children who have unfortunately sustained a brain injury through the fault of another person.
Many have been under the age of 5 when they sustained the injury. All these clients have had one thing in common. The nature of their injuries were such that it would have been easy for anyone without experience in brain injury to conclude they had made an excellent recovery and move to a swift settlement of the claim. That is all too easily done particularly when the injury has been sustained at such a young age. Often other injuries have been sustained, such as fractured limbs, and it is commonplace for children to recover very quickly from these injuries. The brain injury can be forgotten. Once the child has made it through the acute recovery phase and are back walking and talking, most will be relieved.
However the big risk is to ignore the pervading nature of brain injury and to ignore the fact that difficulties can arise as the child develops. If a claim has been concluded then problems for the solicitor may arise with allegations of negligent under-settlement. This risk is very evident in a matter I took over some 10 years ago now. My client was a baby (aged 4½ months) when he sustained the injury. He seemed to be making an excellent recovery. His family had little insight into his brain injury and felt his problems were part of growing up. An offer in settlement was made which, on the face of it, seemed attractive. His legal team advised acceptance. The expert team (who were not child brain injury specialists and who had been jointly instructed) felt my client who was then aged 8 years old had made an excellent recovery and supported settlement.
Fortunately the litigation friend had experience in such cases, felt uncomfortable with the recommendation and therefore sought a second opinion. They were right to do so. I took over the claim. My experience told me that the claim could not settle. I moved away from joint instruction and instructed experts with the necessary experience in acquired brain injury in children. They supported my view that early settlement was not appropriate. A wait and see approach was required with rehabilitation and support as my client developed through his formative years. My client is now 17 years old, approaching his 18th birthday. He has significant cognitive and behavioural problems arising from his injury. He resides in a specialist school setting (funded through his claim) and to date he has received interim payments to fund his rehabilitation which are more than double the offer made in settlement of his claim when he was 8 years old.
Sadly, it is unlikely my client will be capable of independent living or employment and he will require a deputy of the court of protection. His overall settlement is likely to be at least 10 times the original offer made. This client was lucky he had a litigation friend who had experience of such claims. Others are not so lucky and many cases will have been under settled with the claimant the person who ultimately suffers. The key to any child brain injury claim is to ensure the right lawyer and right expert team are instructed, along with a generous dose of empathy and patience.