Litigation and neurodisability.

The desire to obtain explanations and redress for the impairments that are a consequence of neurological disability is unsurprising, and so far as the parents of disabled children are concerned is a component of their adaptation. One manifestation of this seen frequently in North America, Britain, and Australia but less extensively elsewhere, is that legal claims for damages are made by parents on behalf of their offspring. Individually these run into millions of pounds or dollars and their cumulative total, if it were satisfied, comprises a significant proportion of national health care budgets. Whilst it is an understandable view of some health professionals that they have no wish to be involved in any way in medico-legal practice it is, nevertheless, a fact of western life that litigation will not go away; hence, we need to be aware that there are resulting implications both for practice in general and also for individual children and their families. If cerebral palsy (CP) is considered at the individual level the first implication has to be that if, as is generally accepted, 80 to 85 per cent of children with CP do not have a perinatal derivation for their disability, then 15 to 20 per cent do, and that therefore this is the group which is primarily the source of ‘brain damage at birth’ litigation. The analysis of liability (whether there were appropriate standards of professional care) and aetiology (now called causation by the lawyers) are the core elements in establishing whether a suit for damages is viable. Moreover, and whether health professionals like it or not, the legal test here is what is termed the balance of probability, i.e. to determine whether is it more than 50 per cent likely that particular events or actions occurred. This sits very uncomfortably indeed with the concept of scientific or statistical certainty and is a major source of conflict between lawyers and doctors, including those who are liability and causation experts. It should be emphasized however, that it is wholly legitimate for medical experts when reporting to lawyers to conclude that the cause or timing of an individual child’s disabilities is unidentifiable, even on balance of probability in the present state of knowledge. It is nevertheless impressive that the scrupulous quality of enquiry brought by many lawyers to individual cases is now spreading to perinatal risk management practice, although it is hitherto very far from universally applied even in tertiary units in Britain. How helpful it would be to the parents of many children who are subsequently demonstrated to have disabilities if, for example, very high risk groups of children, e.g. those who are of very low birthweight and those who have sustained a neonatal encephalopathy, were routinely analyzed within a multi-professional context? In a minority of such circumstances, culpable fault would be found but this might be an appropriate price to pay for beneficial modifications of practice. Whether or not a successful claim for damages is brought on E diorial