How to assess children for personal injury claims
Communication is key when evaluating injured children, says Dr Mark Burgin
There is no medical reason why children would be any less vulnerable to an injury than an adult, or that their recovery would be any more rapid.
Younger children have less signs and symptoms, but there is no cut-off point where a claimant is 'too young' to claim.
The main barriers to an accurate assessment are in the area of communication and the expert needs to consider child, parent and expert factors (see box). Generalist experts will find the Diploma in Child Health Examination (DCH) from the Royal College of Paediatrics and Child Health useful for enhancing both paediatric clinical skills and knowledge.
In paediatric practice bone damage (for example, a greenstick fracture) is more common and ligament damage is less common than in adults.
Children may have significant pre-existing conditions such as hypermobility, fixed sustained posture and vulnerable growth plates.
Building trust
The expert examination of a child starts with observation, noting how the child moves and interacts with parents and engaging with the child claimant to build trust.
Attempting physical examination without engaging a child will be restricted as the child will not relax and may cry or move away.
- Babies and toddlers respond to play, and non-verbal communication.
- Young children respond to simple concrete language and age-appropriate culture, such as Peppa Pig or Minecraft.
- Primary school children can express preference and use simple visual analogue scales.
- Secondary school children have broader interests and some will be able to engage in a near-adult level.
Successful engagement with the child claimant will give information that may be inconsistent with the parent's history. Parents may state that the child recovered after a couple of weeks, but the child may indicate that they have continuing symptoms.
The parent may state that the child is 'putting on' symptoms, even where the expert's assessment is that the child is honest.
Another situation is where the expert finds areas of tightness or tenderness unexplained by any other injury in a 'recovered' claimant. Alternatively, parents may describe continuing behaviours as indicating continuing injury where examination is consistent with full recovery.
Medical conditions can be attributed by the parent to the accident because of temporal association but be medically implausible.
Many of these inconsistencies can be explained by recognised phenomena in children, for instance enuresis is a symptom of disturbed sleep, but does not indicate the cause.
Some children will remember nightmares with emotional content and can be questioned, but others do not appear to fully awake and have no memory of the waking.
Emotional distress can also be assessed by using visual analogue scales to allow the child to compare levels of stress in different areas of their life.
Further, the emotion that a child shows when talking about the accident and other areas of life can differentiate a memory (neutral) from an injury (distress).
Children with autistic spectrum disorder may have similar behaviours in response to both physical and psychological injuries.
Further evidence may be obtained from a review of the health visitor or school nurse records or from a non-verbal communication specialist such as an art therapist (HPC registered).
Frequent challenge
Opinions of experts are more frequently challenged by barristers in the paediatric field than any other and this fact can put off experts from working with children. Often a child could not be expected to remember or express the type of complex concepts that an adult would and this is one cause of the natural gaps in evidence.
The expert's opinion must combine the evidence available, the likely explanation of inconsistencies, likely natural gaps in evidence, pre-existing conditions, the mechanism of injury as well as taking medical mechanisms into account.
Where an inconsistency cannot be resolved, even if further evidence was obtained, the expert should give the court a range of opinion and should be prepared to offer an explanation as to why there is a natural gap in the evidence. SJ
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Barriers to assessing children
Child factors
Emotional – fear or shyness.
Educational – learning difficulties, speech delay.
Cultural – children’s TV, computer games.
Parent factors
Over protective – answering for child.
Misattribution – seeing a behaviour as an injury.
Disruptive behaviour – interrupting expert/child.
Expert factors
Language – age and culture appropriate.
Engagement – looking at and listening to child.
Summarising - repeating what the child has said.
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Dr Mark Burgin is a medical legal expert and has produced medical legal reports regularly since 2000
admin4dr.burgin@gmail.com