Solicitors Guide to Understanding Birth Injury Claims

Posted on: 14 mins read
Kate McCue

Medical Negligence Associate Solicitor

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If you or your child has experienced birth-related injuries due to medical negligence, you may be entitled to seek compensation for the physical and emotional toll it has taken on your lives. At Simpson Millar, we understand the profound impact of birth injuries on both the child and mother. Our dedicated Birth Injury Solicitors are here to guide you through the process of making a claim, offering expert advice and support to help you attain the justice and compensation you deserve.

We understand the physical and mental effects of birth injury on the child and mother. We offer a Free Claims Assessment and can support you through the whole claims process. We always aim to make it as stress free as possible. According to the National Institutes of Health, up to 45% of new mothers experience birth trauma, and a percentage of those go on to have lasting effects.

Our Birth Injury Solicitors will speak to you in simple, easy to understand language every step of the way. We’ll use our expertise to advise on all aspects of your case and maximise your compensation. Making a claim can give you a sense of justice and can help to drive process changes to try to avoid other people going through similar experiences, and if nothing else, help you and your child’s life get back on track.

What is a birth injury claim?

Even a natural birth can have issues if midwives or doctors fail to monitor the condition of the mother and baby properly, which sadly leads to devastating results. Birth injuries happen for a variety of reasons. Minor injuries like bruising and swelling do happen, but severe cases can have long lasting effects.  

Although healthcare professionals are trained, things can still go wrong. Medical malpractice causing a birth injury might include:

  • Any mismanagement during the delivery of the baby
  • Failing to intervene in labour if the baby is in distress
  • Failing to record or check medical history
  • Failing to spot or correctly identify conditions in the mother or child
  • Delays in diagnosis or treatment
  • Any other oversight that puts your baby at risk

If it can be proved that a healthcare professional or institution has performed below the standard of care, you could have grounds to make a birth injury compensation claim.

NHS Early Notification Scheme

You may have been referred to the NHS Early Notification Scheme (ENS) – this NHS scheme investigates brain injuries to children at birth. It was developed to try to speed up the investigations into what caused your child’s injury so you have the answers you need.

You can still get independent legal advice if you’ve been referred to the ENS, we will ensure that you’re properly informed about what will happen through the process.

Examples of Medical Negligence in Childbirth

There are many different types of injuries to the mother and baby that can occur from medical negligence. We’ll explore each of these in depth, but we should stress that while these are generalised and not specific, you shouldn’t push yourself to read on if discussion of these topics makes you uncomfortable. Please look after yourself and your mental health.

Injuries to the mother can include:

  • Perineal tears
  • Wrongly performed episiotomies
  • Fissures
  • Injuries resulting from a C section

Injuries to the baby can include:

These injuries can commonly occur through errors in judgement, incorrect medication or delayed / incorrect diagnoses.

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What child birth injuries can I claim for?

When a child is injured during labour or immediately after being born, ensuring that it doesn’t happen to another parent is extremely important.

If your child suffered an injury during birth as a result of medical negligence, you may be entitled to compensation and rehabilitation support. An injury or condition due to a failure of care during childbirth could include:

  • Brain injuries
  • Muscular and physical injuries
  • Injuries during delivery
  • Infections

Medical negligence during childbirth can have many lasting effects on the child. These can include:

  • Brain injuries, such as Cerebral and Erb’s Palsy. These often result from trauma during birth, such as a lack of oxygen through asphyxiation or a shortage of oxygen due to a delay in performing a Caesarean section
  • Muscular and physical injuries, such as Shoulder Dystocia, Klumpke’s Palsy and Brachial Plexus Injury
  • Injuries during delivery, such as bone damage, lacerations, fractures and stress-related injuries. These may be caused by obstetric staff mishandling the mother and baby, applying forceps incorrectly or administering the wrong medication
  • Injuries that arise from infections or develop during pregnancy and should have been identified by a medical professional, such as meningitis; group B strep; folic acid deficiency; spina bifida; anaemia.

In detail: What Are the Types of Birth Injuries to Babies?

There is a range of possible injuries, conditions and illnesses that can occur as a result of substandard care during childbirth. Among them are cuts, fractures and injuries caused by using instruments to deliver your baby, injuries caused by shoulder dystocia and brain injuries caused by a lack of oxygen.

Common examples include:

Cerebral Palsy

Cerebral palsy is a condition that affects movement and coordination. It is caused by damage to the developing brain, usually before or during birth, but occasionally in early childhood. This damage can affect different areas of the brain and result in various forms of cerebral palsy. 

The most common form is spastic cerebral palsy, where the muscles are stiff and rigid, making movement difficult. Other types include dyskinetic cerebral palsy, which affects muscle tone and causes involuntary movements, and ataxic cerebral palsy, which affects balance and coordination.

Erb's Palsy

Erb's palsy is a condition that occurs when the nerves of the brachial plexus, a network of nerves that control movement and sensation in the shoulders, arms, and hands, are damaged. It typically affects newborns and can be caused by a difficult delivery or traumatic childbirth. 

As a result, a child with Erb's palsy may have difficulty moving their arm or hand, or experience numbness or weakness in that area. While some cases of Erb's palsy can resolve on their own with time and physical therapy, others may require surgery or other treatments to restore normal movement and function.

Klumpke's Palsy

Klumpke's Palsy is a type of paralysis that affects the muscles and movement in the forearm and hand. This typically occurs when the nerves that control these areas are damaged during birth or traumatic injury.

Should You Complain to the NHS First?

While you don’t have to complain directly to the NHS in order to make a medical negligence claim, it can be worthwhile, particularly if the nature of your case isn’t entirely clear cut.

Our Medical Negligence Solicitors can advise on whether a complaint is suitable in your particular case and assist you with pursuing your complaint through the NHS Complaints Procedure.

If either you or your child has suffered a birth injury because the standard of care you received fell short, it’s important to get legal advice from an expert in the field. We have the expertise and the experience to ensure your claim is treated fairly and with sensitivity, so you can get the compensation you’re entitled to.

Can you claim for birth injuries to the mother?

Medical negligence during childbirth can also have serious consequences for the mother. Possible injuries that can result from clinical errors include:

  • Third or fourth degree Perineal tears – Although common, if not treated properly can lead to long standing problems, such as pain and psychological damage
  • Retained products of conception – In the tragic event of a miscarriage, there is the risk of tissue remaining in the uterus, which can lead to bleeding and infection
  • Nervous shock following a traumatic birth – Post-labour nervous shock can arise due to improper care following what has been a traumatic birth. This may result in psychiatric damage and mental illness.

You might also qualify for compensation if your child died shortly after birth due to the negligence of healthcare professionals. But, you can only claim compensation for medical negligence during childbirth within 3 years of the date of the incident, or from the date on which you became aware of its effects.

What are the causes for a traumatic birth?

The birth of a baby is usually one of life’s most joyful events, but the delivery itself can be one of the most traumatic. This can be for many reasons, such as:

  • Medical emergencies
  • Not having procedures explained to you before they’re carried out
  • A fear of feeling alone and out of control
  • Fearing that you or your baby will die
  • Pain management during the delivery
  • A poor bedside manner from treating clinicians
  • The speed of your labour

Medical Emergencies

Births are unpredictable, so it’s inevitable that medical emergencies will sometimes happen. But if an emergency happens and you don’t understand what’s happening, or it’s not correctly explained to you, this may cause trauma, as you may feel you have no control over what’s going on.

Lack of Consent

This can manifest in several different ways, but is most commonly experienced when procedures are not properly explained, or something happens that leaves you feeling treatment was administered, but not with your approval.

If the procedure was painful, or you did not fully understand what was being done at the time, you may feel as though you lost control of the situation.

Speed of Labour

It is usually accepted that a long labour can be extremely traumatic due to the pain, sleep deprivation, and other negative factors that come with long births. But a quick labour can also be traumatic and in the worst cases, lead to injury for the mother or the child. 

Often, things will move so quickly that in those circumstances, you will feel out of control and not understand what stage of labour you are in. And if the labour began at home, there may be trauma and fear that you might not reach the hospital on time.

What can add to this is the general preconception that a quick labour is a ‘good’ labour, and that you are ‘lucky’ and the birth itself is a positive experience, when in reality, it can be the exact opposite.

 

How Much Compensation Could I Receive For A Birth Injury Claim?

Compensation is split into 2 categories, General Damages and Special Damages.

General Damages

General damages are intended to compensate for your pain, suffering and loss of amenity – the latter refers to the way your quality of life has been affected. It’s also important to note that pain and suffering can be either physical or psychological.

There are guidelines which state how much compensation should be awarded for general damages in severe injury cases like brain damage. There are brackets of compensation in each of the 13 chapters of the Judicial College Guidelines, ranging from a minor injury healing in 7 days attracting a compensation award of just a few hundred pounds to a severe brain injury attracting an award of anywhere between £224,800 and £400,000 compensation.

For example, as a general guide:

Injury Type

Minor

Moderate

Severe

Very Severe

Brain damage

-           

-           

£219,070 to £282,010

£282,010 to £403,990

Serious pelvis and hip injuries from birth

 £12,000 to £20,000

 £30,000 to £65,000

£75,000 to £100,000

£100,000 - £165,000

Special Damages

The second component of compensation is in relation to Special Damages for past and future financial loss incurred as a result of the injuries you’ve sustained. This can include claims for loss of earnings, pension loss, the cost of long-term medical treatment, intensive rehabilitation you need to help you recover, past and future care and support and adaptations to your home and car.

We understand that dealing with the consequences of medical mistakes when you have just delivered your baby can be hugely distressing, but our friendly and supportive team have lots of experience in this area, and will be happy to discuss how we can help you.

If you have any concerns about the care you received during your birth, please get in touch with our expert Medical Negligence Solicitors.

How to Claim For a Birth Injury

You should get independent legal advice from an expert in medical negligence if you or your child suffered an injury because of medical negligence during childbirth.

These cases can be especially complex and distressing, but our legal experts will give you the specialist experience and empathy you need.

If we think you have a case, we’ll work to make sure your birth injury compensation claim is treated fairly and that you get the compensation you’re entitled to.

Taking legal action can seem stressful, but you can leave the hard work to us. We’ll keep you updated every step of the way while you focus on your family.

Medical negligence birth injury claims can be complex cases which rely on several independent experts to carry out a thorough investigation. As such, the claims process can take a long time to reach a final settlement.

But rest assured that once we take on your case, we’ll take care of the difficult tasks. From arranging appointments with independent medical experts, to dealing with the other side and their Lawyers.

Why Should I Claim Compensation?

We understand that the idea of taking legal action against the NHS can be unsettling. But this will enable you to fund any care or rehabilitation needs you or your child may have now or in the future.

Additionally making a medical negligence claim can lead to a spotlight being shone on clinical practices in the NHS and can lead to processes being improved and strengthened. As a result, it may help other people avoid going through the same type of trauma that you’ve experienced.

Is there a Time Limit on Making a Birth Injury claim?

If you are over the age of 18 and have the mental capacity to bring your claim you will have 3 years from the date of the negligence (or 3 years from the date when you knew there was a problem) to pursue a claim.

If you are claiming on behalf of a child then you are entitled to bring the claim on their behalf up to their 18th birthday. Thereafter the injured child will have 3 years in which to start their claim. The exception to these rules are where the child or adult does not have capacity to bring their claim. In that instance the time limit is stayed until capacity is regained (if ever).

In the unfortunate cases where the mother or child passed away as a result of negligence the time limit is 3 years from their date of death. Our Medical Negligence Solicitors can advise you further on these time limits and how they impact your particular case.

Who Pays Compensation For Medical Negligence at Birth?

It’s good to know your birth injury compensation won’t come directly out of a hospital’s budget as NHS Resolution has a budget to deal with all medical negligence claims directly. Private healthcare providers have their own insurers to handle negligence claims.

What is the Birth Injury Compensation Claims Process?

  1. Get in touch for a free claims assessment
  2. We’ll explain everything you need to know: including the NHS complaints procedure and anything that applies to your case
  3. We’ll collect evidence: we’ll work with independent medical experts to assess whether your care was substandard and caused avoidable harm
  4. We’ll apply for an interim payment if possible
  5. Child settlements: The court will need to approve any settlement of a claim involving a child and it may be in your child’s best interests to not settle the claim early so medical experts can review how their needs change as they grow
  6. Setting up a personal injury trust: Our court of protection team can offer you advice on setting up a PI Trust and appointing a deputy to manage the trust for you.

How Simpson Millar Can Help You

Our Birth Injury Solicitors have many years of experience, handling difficult and demanding cases with sensitivity and understanding. Our expertise has allowed us to ensure that mothers and their children receive the compensation and rehabilitation support to which they are entitled.

In order to claim compensation for a birth injury, you need to be able to show that your injuries were the result of being born, or the child birth itself, which we at Simpson Millar can help with.

Our Personal Injury Solicitors have a strong track record of helping victims of birth injury get the compensation they are entitled to. For example:

£12 million compensation awarded in damages

£3,650,000 Compensation for Medical Negligence Birth Injury

£150,000 Compensation for Medical Negligence Birth Injury

Doctors, surgeons and medical professionals have a special responsibility and duty of care to their patients, and on the occasions where this is found to be lacking, action should be taken to improve this quality of care. If a child is injured during labour or immediately after being born, ensuring that it doesn’t happen to another parent, as well as securing the financial means to manage any resulting condition, is extremely important.

We’re Simpson Millar and we are known for delivering trusted, expert advice quickly and clearly. We’re always here for you, just call us on 0808 239 6043.

References:

PubMed Central. (2018). A Meta-Analysis of the Effectiveness of Epidural Anesthesia for Cesarean Section. [Online] Available at: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6193358/

PubMed Central. (2006). Episiotomy and obstetric outcomes. [Online] Available at: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1595040/

NHS. (n.d.). Episiotomy and Perineal Tears. [Online] Available at: https://www.nhs.uk/pregnancy/labour-and-birth/what-happens/episiotomy-and-perineal-tears/

Judicial Council. (n.d.). Personal Injuries Guidelines. [Online] Available at: https://judicialcouncil.ie/assets/uploads/documents/Personal%20Injuries%20Guidelines.pdf

NHS Resolution. (n.d.). Homepage. [Online] Available at: https://resolution.nhs.uk/

NHS Resolution. (2023). NHS Resolution Annual Report and Accounts 2022/23. [Online] Available at: https://resolution.nhs.uk/wp-content/uploads/2023/07/4405-NHSR-Annual-Report-and-Accounts_Rollout_A_Access2.pdf

Kate McCue

Medical Negligence Associate Solicitor

Areas of Expertise:
Medical Negligence

Kate joined the Clinical Negligence department at Simpson Millar in January 2023 after previously working at Chris Kallis Solicitors in Plymouth. Kate qualified as a solicitor in 2004 and has developed extensive experience in both Personal Injury and Medical Negligence.   

Initially Kate started working as a Defendant Solicitor for firms such as Bond Pearce LLP and DAC Beachcroft Claims Ltd. This has allowed Kate to develop a tactical advantage to her cases, using the experience of how a claim is dealt with from a Defendant’s perspective. 

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