Slow justice for Danielle

Why has it taken 13 years of legal battle to force a hospital to pay for its errors? By Mary Braid
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The Independent Culture
The best thing is, now I know that when I die she will be looked after." Sally Murphy, 39, is talking about her daughter Danielle, now 15, as she flicks through a large scrapbook of press clippings and photographs, yellowed with the years. There is Danielle as a baby, Danielle the growing child, and Danielle at a string of fundraising events. These raised pounds 24,000 to send her to Hungary's Peto Institute for brain-damaged children, where she learned, finally, to walk.

The scrapbook is a monument to generosity. There are letters from children who gave up their pocket money for the appeal, and from the old lady who made a gift of pounds 5,000 in memory of her own brain-damaged son. The book is also a testament to motherly love and a 13-year struggle for justice.

The struggle will end next year when Danielle receives a multi-million- pound compensation payment from the Merseyside hospital which the Court of Appeal found to be 90 per cent to blame for her cerebral palsy. It is another big payout, like that awarded last month to Sam Mansell, 11, who won pounds 3.3m after suffering brain damage at birth.

But why did Danielle's claim, like Sam's, take so many years to settle, arriving too late to help with vital childhood therapies, or to ease the burden on her mother? Is this really the best the system has to offer?

Mrs Murphy's story begins with a pregnancy that was trouble-free. When she went into hospital on Christmas Day the medical staff, in tinsel and party hats, said she was so advanced that she would deliver within the hour. Four-and-a-half hours later she was still waiting.

"I remember being left for ages on my own," says Mrs Murphy, at her home in Caerphilly. While we talk, Danielle, who is moderately mentally as well as physically impaired, listens.

"And the pain was different from that with my first child. It would come on strong, then just die down. Eventually a doctor looked in, and then suddenly it was panic stations. When Danielle was born, she was not breathing."

Danielle was 10 months old before a doctor bluntly told Mrs Murphy what she had already guessed, that the baby had cerebral palsy. By then, Mrs Murphy's friends' children were almost walking. Danielle was being left behind. So was her mother. "I don't know if it was because other mothers were embarrassed, or if I became withdrawn, but I lost all my friends."

Seven months later, the legal battle began. Mrs Murphy had always believed that medical negligence was to blame for Danielle's condition, but those early months were dominated by caring for a disabled child, and there was so much to come to terms with. Many parents delay before consulting a lawyer. Others never make an appointment at all, convinced that doctors will not break ranks to support their stories.

Nicola Castle, the solicitor who represented both Danielle and Sam, currently has 50 cerebral palsy cases on her hands. She says that it takes about 18 months to establish whether there is a prima facie case for going to court. Medical negligence is hard to prove, and more than half the cases are dropped at that stage.

Legal action takes on average a further four years. The wheels of justice turn slowly, and the country's top doctors can also take a year to complete crucial court reports. Every lawyer wants to use the same tried and tested experts.

Mrs Murphy's case dragged on even longer because the health authority fought it all the way, even forcing the case to the Court of Appeal. The lawyers are now hammering out the level of compensation with Ms Castle. If that cannot be agreed, the case will have to go back to court. Mrs Murphy is understandably exhausted. "Danielle needed this money years ago," she says. "I am angry for her, because it is she who has suffered."

Yet she is a defender of the present system - although she feels that it should be improved. For Danielle's claim would never have reached court under current Government proposals to reduce the legal aid bill by introducing conditional fees ("no win, no fee") in medical negligence cases.

Experts predict that without legal aid, lawyers will take on only those cases they feel sure they will win. Mrs Murphy's case, like many others, was borderline. According to conditional fee expert Kerry Underwood, the risk of losing a medical negligence case is 10 times higher than for personal injury. Without legal aid, he says, the cost of initial investigations and expert reports can be prohibitive for both client and lawyer.

The cost of insuring against losing the case is also too high, especially when most claims result in payments of a few thousand pounds, not millions. He advises lawyers not to touch conditional-fee medical negligence cases with a barge pole.

Faced with the potential PR disaster of disabled children being denied justice because their parents are poor, the Government has shelved the controversial proposal, but only temporarily. The Lord Chancellor, Lord Irvine of Lairg, has promised to look at it again.

But assaults on the current system are also coming from other government quarters. Earlier this year the Health Minister, Frank Dobson, in a tirade against escalating medical negligence costs, accused lawyers of milking the NHS of funds.

As deference for doctors wanes, suing is becoming popular. While the General Medical Council has asked doctors to report colleagues who put patients' lives at risk, Ms Castle believes that doctors are increasingly willing to blow the whistle on their colleagues. But John Hickey, of the Medical Protection Society, has claimed that medical negligence costs are rising by 15 per cent a year, not because medical standards are poor, but because solicitors are advertising and "putting ideas into people's heads".

Mr Underwood describes Mr Dobson's remarks as "outrageous". If standards were up to scratch, he says, lawyers would not have to get involved. Although Ms Castle says she feels deeply sorry for some of the overworked doctors she takes to court, their mistakes can be catastrophic for patients. Mr Underwood believes the answer is a "no fault" liability scheme by which compensation would be paid from an NHS budget to anyone injured as a result of medical treatment, negligent or otherwise.

But both conditional fees and no fault liability are rejected by Scope, the national cerebral palsy charity. The first would prevent the poor seeking justice, says Richard Parnell, Scope's research manager. Only 12 to 15 per cent of brain-damaged children are believed to have been injured during birth, with as few as 2 per cent sustaining their injuries due to negligence. The second option, Mr Parnell argues, would mean a fixed amount of money being spread too thinly to make a significant difference to anyone's life.

Since awards are largely calculated on what it will cost to provide care for life, Scope argues that the big payouts expose the inadequacy of the services currently provided for most people with brain damage.

As things stand, however, parents who bring legal action are being put through the mill. Mrs Murphy says she had no choice but the path she took.

Without the compensation, she would still have raised a daughter with a wicked sense of humour and an understanding of her own condition. That understanding shames society, for Danielle says she knows adults stare at her not because she is beautiful, as her mum insists, but "because I am handicapped".

Lack of money did not stop Mrs Murphy raising a fighter in the face of such prejudice. When another child recently ridiculed the way she walked, Danielle told her she would be worried if she was as fat as she was.

But the pending award is crucial to the realisation of Mrs Murphy's dream of a secure and independent future for Danielle. How much bleaker the future would have been, if she had accepted the medical advice that Danielle's condition was "an act of God".

Now Mrs Murphy, her partner Glyn, Danielle, and her sister and brother can move from a house with stairs to a roomier bungalow adapted for wheelchairs.

A computer to help Danielle to communicate is already installed, and speech therapy, which is not provided by the local authority, is planned. Now there will also be space for daily physiotherapy for Danielle, and money for a part-time carer to relieve the strain on the family.

Still, Mrs Murphy shakes her head at those who compare the compensation - which must last Danielle her whole life - to winning the lottery. "I would give every penny back just to be able to send Danielle on her own to the shops to spend a pound coin."

And there is lingering disappointment, too, for she was fighting for more than money.

"I needed them to say it was their fault. I wanted them to say `sorry', but they haven't. I would have liked an apology for Danielle."

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