The significance of time factors in cerebral palsy litigation

Objective: to demonstrate the significance of the lengths of time taken to initiate and conclude litigation concerning cerebral palsy.

Design: documentary analysis of 142 closed legal files (92 Scottish; 50 English) relating to births from 1980-1996. Claim outcome, and the dates of birth, legal notification and conclusion of the claim, were analysed using Microsoft Excel.

Setting: health service legal offices in Scotland and England.

Findings: successful claims were raised more quickly (on average two years compared with 3.6 years for unsuccessful claims). They also took longer to be decided (six years compared with three years). On average the children of successful and unsuccessful litigants were, respectively, 7.8 and 6.6 years old by the time the claim was decided. Over the period studied there was a steady reduction in the length of time taken to initiate litigation, although successful claims were on average raised more quickly. Overall success rate was 27%.

Conclusions/implications for practice: most cerebral palsy claims do not satisfy the requirements of the law of medical negligence. Lengthy periods of time are involved irrespective of outcome: while successful litigants continue to sue more quickly, their claims take longer to be resolved. The extensive period from birth to closure of claim, and uncertainty over the legal outcome, may cause significant distress for practitioners and parents of children with cerebral palsy. Knowledge of the likely duration of the legal process can help practitioners and the families involved to come to terms with this important feature of litigation. Health service claims managers may also be helped in terms of understanding the more likely duration (and therefore cost implications) of cerebral palsy claims. For successful litigants there are questions about the justice of having to wait, on average, nearly eight years for compensation.