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It is reported that the annual cost to the National Health Service from litigation rose from £456 million in 2008 to more than £1 billion in 2012. The greatest single proportion of this is paid as compensation to successful claimants in brain damage at birth litigation.1 When considering the question of why parents litigate my perspectives are first those of a paediatric neurologist who has a special clinical interest in childhood disability, and second those of an expert witness who advises claimants and defendants in clinical negligence and personal injury litigation.
I have undertaken this latter role for approaching 40 years, in combination with my clinical and academic commitments, and I have prepared about 5000 expert reports. The majority of these have been concerned either with detailing the likely causation of brain damage and disability, or with detailing the likely prognosis, care needs and life expectation of disabled children and young people.
As part of my practice I examine most of the children on whom I report and, as part of my evaluation, I enquire, whenever I perceive it is reasonable and appropriate to do so, why the litigation is being brought. I cannot claim that this is in any way a rigorously scientific approach. Rather, a clinical impression has been obtained and this appears to be relatively stable and consistent in terms of the information that is provided. Informal conversations with colleagues who undertake medicolegal practice indicate that they have similar impressions as to the reasons why parents litigate.
Against this background, it is appropriate to make clear that there is a significant tension with respect to the paediatrician’s role in conventional clinical neurodisability practice when this is contrasted with medicolegal practice.
In the former situation paediatricians offer initial and continuing support to parents as they go through the …