The Benefits of Periodic Payment Orders for Children with Cerebral Palsy
In order to provide for the current and future needs of a child with cerebral palsy as a consequence of medical negligence a well thought out combination of a lump sum award and periodic payments are required. As cerebral palsy solicitors we have represented a significant number of clients in recent years. An issue of significant concern to us in advising the parents of a child with cerebral palsy is that adequate provision should be made for the needs of that child for the duration of the child’s lifetime. Find out more – what is cerebral palsy? To date a lump sum methodology i.e. a lump sum award has applied. The methods used for calculation of damages are somewhat archaic in relation to lump sum awards. The approach in relation to the lump sum calculations for cerebral palsy claims is appropriate in relation to the certain types of damages.
Types of Lump Sum Awards in Cerebral Palsy Claims General Damages i.e. damages for pain and suffering endured by the child due to his/her cerebral palsy condition Loss of Earnings. The normal approach is to quantify what would be the loss of earnings for the duration of that person’s expected working lifetime in circumstances of a catastrophic injury like cerebral palsy. This particular approach is still appropriate in situations where there would be no differentiation in terms of earnings/losses as time progresses i.e. you can predict, with an equal degree of certainty today, as to what is the appropriate level of compensation in five or ten years time. Past Care Costs. These costs have either been incurred or alternatively the care has been provided by a family member who may have had to give up a promising career to care for their child with cerebral palsy. The commercial value of that care can be quantified less a deduction for natural love and affection i.e. what one would normally undertake in respect of your child.
Accommodation Requirements. It is critical that a child with cerebral palsy should be living in a safe and suitable environment. Consequently a lump sum award is appropriate. Into the future there will be additional repair and re-modification costs associated with maintaining that environment and ensuring it meets the needs of the child as he/she grows older. In this regard those costs can be quantified to some extent at a fixed figure per annum.
Cerebral Palsy Claims & Periodic Payments. Outside of the damages outlined above, and in our experience as cerebral palsy solicitors, lump sum awards are inappropriate in the extreme. With this in mind we have outlined below where we feel Periodic Payments Orders are the only options. Children with Cerebral Palsy utilise IT support for the purposes of communications, daily interaction and indeed entertainment. Supports that are available today are far beyond what we could have imagined some 5 years ago. Parents of children with cerebral palsy are often mesmerised by the IT benefit to be delivered by utilising iPad apps. A cautionary tale; today’s technology will inevitably be obsolete within a short period of time and quantifying the cost of new technology to enhance the life of a child with cerebral palsy is a guessing game. Endeavouring to calculate the cost of IT requirements for a period of 20-25 years is unquantifiable. It is impossible to quantify these future costs on a lump sum basis. Yet the ability of the child, and in later years as they progress to adulthood the capacity to interact with society will be determined by the latest technology. This is where periodic payments are critical to the future well being of the child.
Nursing Care Costs. Yet again this is impossible to predict with any degree of exactitude as to what are the future care requirements of a child with cerebral palsy. One can guesstimate as to what the needs will be in five, ten or more year’s time. However it is purely a guess based upon a professional opinion at a particular moment in time. Unfortunately many of these medical opinions indicating future care requirements have turned out to be inaccurate. A child or adult cerebral palsy situation can deteriorate as time progresses for a variety of medical reasons. In those circumstances, the level of care can increase to a level that has not originally been envisaged or quantified as part of the original methodology for determining lump sum payments. It is for that reason that care costs should be quantified on the basis of a two year period by way of Periodic Payment Orders.
Aids and Appliances. The aids and appliances that are available and required today will inevitably change as time progresses. Consequently, our ability to adequately predict the costs to be incurred in terms of provision of aids and appliances for the future is problematic in the extreme. It would be better to build in those particular developments and requirements into an aids and appliance package that allows for periodic payments to meet the needs of a child or adult with cerebral palsy.
Cerebral Palsy Litigation.
This article is not intended to be a complete synopsis of the value aspect of a cerebral palsy claim. It is provided for the purposes of indicating what we see as a consequence of our years of experience and the inappropriateness of Lump Sum Payments. Furthermore, we believe that the preferable option for all cerebral palsy claimants is a combination of a Lump Sum Award and Periodic Payment Orders. The ability to construct such a situation is dependent upon the experience of the legal team involved. Any agreement will be required to be drafted in a manner that adequately protects the current and future needs of the child or adult. The agreement needs to take onboard the needs and requirements of a child for the duration of his/her lifetime, which can be for a period of up to 40 years and more. A distinction needs to be made between capital and income type expenditure to the extent that each and every aspect of that expenditure is identified and the determination is made as to whether it is appropriate for a Lump Sum Award or alternatively a Periodic Payment Order. If a particular category of damages is miscategorised or it is inappropriately addressed, then that scenario can cost the child hundreds of thousands of euro in terms of entitlements either to damages or alternatively services. If you wish to obtain advice in relation to any aspect associated with a cerebral palsy claim please feel free to contact one of our cerebral palsy solicitors at 01 87 444 22 or click here to email us.
Cerebral Palsy Resources & References
Central Remedial Clinic