Though it can be wonderful, childbirth can also be very stressful, particularly if there have been complications in the pregnancy. Doctors and midwives involved in childbirth are expected to provide the basic standard of care during this process (at least). If these standards are not met, then mistakes could happen and the mother, child or both could be seriously injured. In this article, we are looking at the process of birth injury claims.
What Are Birth Injury Claim Payouts?
It is important to point out that both mother and child can suffer injuries during the birthing process that are not avoidable. For medical negligence, we are looking at the injuries that should not have happened. If a mother or child is unfortunate enough to be affected by an avoidable birth injury, then they may be entitled to receive compensation if the injury was caused by the negligence of medical staff.
Avoidable birth injuries can have severe, life-changing effects on a child or mother. Therefore, any compensation received for such injuries could help a lot with coping with them.
In this guide, we’ll explain what you need to know about making a birth injury claim. We’ll explain how birth injuries may occur through negligence by medical staff. We will also explain the type of injuries which could occur if something goes wrong during childbirth. Additionally, we’ll look at potential compensation amounts for this type of claim and whether time limits apply for starting a claim like this.
To speak to our advisors for free about birth injury claims, you can contact Medical Negligence Assist today. You can contact us online through either our live chat service or with our claim online form. You can also phone us on 0800 652 3087
Select A Section
- What Is A Birth Injury Claim?
- Duty Of Care In Obstetrics And Midwifery
- Injuries To The Mother During Childbirth
- Traumatic Birth Injuries To A Child
- What Causes Childbirth Injuries?
- Birth Trauma And Post-Traumatic Stress Disorder
- Birth Injury Claims Compensation Calculator
- Is There A Time Limit On Birth Injury Claims?
- Check If You Are Eligible To Make A Birth Injury Claim
- No Win No Fee Birth Injury Claims
- How To Make Your Birth Injury Claim
- Child Birth Injury Statistics
- Read More Guides
- Birth Injury Claim FAQs
A compensation claim may potentially be possible for a birth injury if it can be proven that it was caused due to negligent behaviour by medical professionals or a hospital involved in the childbirth.
While delivering a baby, the hospital and staff involved (including doctors and midwives) owe the mother and child a duty of care. As part of their duty, the medical staff should take all reasonable steps to uphold the minimum standard of care (at least) while delivering a baby.
Any mistake by medical staff which reasonably could have been foreseen and/or prevented could be considered an act of negligence and a breach of their duty of care. If other healthcare workers of the same profession would’ve avoided the actions that caused you injury, it may be that your healthcare worker was negligent.
Such negligence could cause birth injuries to the mother or child (or both) which could have severe and even life-changing consequences.
Generally, a duty of care is imposed on healthcare providers in situations where it is “reasonably foreseeable”. This applies to midwives, nurses and other healthcare professionals. Once a medical professional accepts a patient they then have a duty of care to them.
Midwives, who are specially trained to care for mothers and newborns around the time of childbirth, are expected to follow the Nursing and Midwifery Council (NMC) Code. It sets the standards of conduct, training, ethics and performance for midwives and nurses.
Issues during childbirth can cause a range of injuries to the mother which can potentially be very severe. While it’s normal for recovery time to be expected following childbirth, complications can make the process much longer. In particularly serious cases, birth injuries can have a permanent effect on a mother.
Examples of potential injuries a mother could suffer during childbirth include the following:
- Anaesthetic errors
- Bowel and bladder injuries caused by errors during caesarean (C-section)
- C-section trauma
- Delay or misdiagnosis of pre-eclampsia or another condition that affects childbirth
- Failure to diagnose and therefore prevent preterm birth
- Failure to arrange a timely C-section when necessary
- Injuries caused by forceps or vacuum delivery
- Injuries caused by suturing (stitching)
- Nervous shock following a traumatic birth
- Perineal lacerations or tears or internal damage
- Placental abruption, where the placenta separates early from the uterus
- Postnatal infections
Problems during childbirth can cause different types of injuries to the child being born. Which injuries could occur depends on what type of issue may develop. Any incorrect treatment or other forms of negligence during their birth can lead a child to develop severe and even permanent injuries. These could include the following:
- Brain injuries
- Broken bones
- Cerebral palsy
- Fractures or cuts (which may be permanent)
- Muscular injuries, such as brachial plexus or Erb’s palsy
Medical negligence is a very complex subject. Some injuries that happen at childbirth cannot be prevented and therefore are not classed as medical negligence. A doctor may act completely professional and in line with the duty they owe their patients and still, injuries can occur.
Cerebral Palsy and Erb’s Palsy explained
Cerebral palsy and Erb’s palsy are among the most serious conditions which could develop in a child if there are issues during their birth.
Cerebral palsy refers to a group of lifelong conditions which can affect movement, muscle tone and posture. They can occur if a child’s brain is damaged just before, during or just after birth is complete. Symptoms of cerebral palsy may not be obvious just after a child is born. They usually become more noticeable during the first 2 or 3 years of a child’s life.
There’s currently no cure for cerebral palsy and the condition usually has a significant impact on a child from early on in their life. Children and adults with the condition usually receive regular care from medical professionals.
Erb’s palsy is an injury that disrupts the movement of a child’s arm after birth. It can occur if an infant’s neck is stretched to the side during a difficult delivery. A network of nerves near the neck which influence the arm could be harmed, leading to arm weakness and loss of motion.
Full recovery from Erb’s palsy may be possible for a child, but it could take up to a couple of years. A doctor will need to regularly examine the recovery process and the treatment will depend on the severity of the condition.
If you’d like to find out more about making a birth injury claim, read on or get in touch with our advisors.
There are different potential errors that could be made by medical professionals during the different stages of childbirth. Examples of the types of avoidable errors which could lead to birth injuries for the mother or child include:
- Failure to identify, prevent or treat infections (such as meningitis)
- Failing to notice dangerous conditions (plus possible distress) for the mother or child
- Incorrect mishandling of medication
- Unreasonable late delivery of the baby
Causes of cerebral palsy during childbirth
Cerebral palsy is one of the more serious health issues which children can potentially develop during or just after childbirth. The potential risks and problems which can lead to the development of this condition for a child can vary. They include the following:
- A serious head injury occurs during difficult childbirth.
- A stroke may occur.
- Asphyxiation – if birth is particularly difficult, then the baby may choke or nearly drown. This can mean the brain is temporarily deprived of oxygen and damaged as a result.
- The baby is being born prematurely (before the 37th week of pregnancy). Babies born at 32 weeks or earlier are at a particularly high risk of developing cerebral palsy or other health issues.
- The mother has been smoking, drinking heavily or has been taking drugs while pregnant such as cocaine.
- Low birthweight.
- Multiple births.
Childbirth can be an incredibly stressful experience for a mother. This is especially likely if any unexpected issues occur during it. Difficulties during childbirth could lead a mother to develop postnatal post-traumatic stress disorder (PTSD), which is a type of anxiety disorder. Also known as birth trauma, it can develop if childbirth proves difficult, requires emergency treatment or something goes badly wrong.
If there are issues during childbirth because of negligent behaviour by medical staff, then PTSD is a psychological injury that could be directly caused by this issue. If a claim is made, then the victim may be able to receive compensation for their PTSD, provided it can be proved that the injury exists and was directly caused by medical negligence.
When making a birth injury claim, compensation amounts can vary a lot. Compensation payouts for birth injuries can be substantially larger compared to other types of personal injury claims.
However, the payout which may be given for your claim will depend on several factors. These include what injuries you (or your child) have suffered, how severe they are and how much impact they have on your quality of life in the near and long-term future.
You can view the compensation table below which covers different types of physical and mental injuries which may be experienced due to negligence during childbirth. These brackets come from the Judicial College guidelines and they are based on payments made in past injury claims. Solicitors might use these brackets for reference when calculating the value of the injuries suffered in your claim.
|Brain Damage||Very Severe||£264,650 to £379,100|
|Brain Damage||Moderately Severe||£205,580 to £264,650|
|Brain Damage||Moderate||£40,410 to £205,580|
|Brain Damage||Less Severe||£14,380 to £40,410|
|Psychiatric Damage Generally||Severe||£51,460 to £108,620|
|Psychiatric Damage Generally||Moderately Severe||£17,900 to £51,460|
|Psychiatric Damage Generally||Moderate||£5,500 to £17,900|
|Psychiatric Damage Generally||Less Severe||Up to £5,500|
|Bowels Injury||Permanent Damage||£11,820 to up to £172,860|
|Bladder Injury||Long-Term to Permanent Damage||£21,970 to up to £172,860|
The compensation offered to cover for injuries, such as the examples listed above, is considered compensation for ‘general damages’. If you are eligible to receive compensation for general damages, then you may also receive compensation for ‘special damages’.
Compensation for special damages provides cover for financial losses which are directly linked to your injuries (or your child’s injuries). Examples of financial losses which could be covered under special damages include the following:
- Travel expenses put specifically towards receiving medical treatment for your birth injuries.
- Lost earnings if your injury forced you to take unpaid time off work.
- Loss of earning capacity if your injuries have forced you to change to a different job role, which earns you less than the one you had pre-injury.
- In cases, of cerebral palsy cases, the cost of care would be a major factor considered in the special damages part of the claim.
If you have evidence of medical negligence contributing to birth injuries, then you may consider starting a birth injury claim. It is crucial, however, to start your injury claim in time, since there may be a time limit in place.
Under the Limitation Act 1980, a birth injury claim usually has to be started within three years of when your injuries occurred. If your injuries weren’t immediately confirmed, then the time limit begins from the date they were diagnosed. This is called the date of knowledge.
If you’re claiming on behalf of your child for birth injuries they’ve suffered, then the rules on the time limit work differently. The time limit of three years doesn’t actually start for an injured child until the day they turn 18.
You may be able to start a claim on behalf of your injured child before they’re 18 as a litigation friend. A litigation friend can potentially represent an injured party during a case when the injured party is unable to act on their own behalf. A child can’t represent themself in a claim before their 18th birthday.
If you are claiming for a child who passed away due to birth injuries, then there’s usually a time limit of three years for claiming. This applies from the date of the child’s death.
The time limit for claiming can also be frozen if the victim is an adult but lacks the mental capacity to make their own decisions. Like with children, a litigation friend may be able to claim on behalf of the victim.
In the event that the victim later recovers enough mental capacity to act on their own behalf, then the three-year time limit will come into effect from the day this occurs.
If you are considering making a claim for birth injuries, then there are few requirements your case will need to meet to have a realistic chance of success. You will need evidence that shows that medical professionals took care of you during childbirth and owed you a duty of care.
You will also need proof that a hospital or medical professional involved in your childbirth acted in a negligent manner that breached their duty of care towards you. A link will also need to be established to show the breach in duty of care caused the birth injuries you’re claiming for.
The Bolam test will be used. This will ask a panel of peers if they would have acted in a similar way to the medical professional you think was negligent. If the peers agree the doctor or midwife acted in the best interest of the patient proving negligence is less likely.
Following any birth injuries you’ve experienced (or your child has experienced), your initial priority should be getting the medical treatment required. If you wish to pursue a birth injury claim, then it’s recommended you start gathering evidence to build your case as soon as possible.
The evidence which may be available will depend on the circumstances of the incident which caused your avoidable injuries (or your child’s injuries). Potential evidence could include medical reports, discharge letters, other medical documents and witness details.
Once you’ve gathered the evidence available, you may then want to get in touch with a solicitor who can support your case. We recommend hiring a solicitor who has experience in handling birth injury claims.
If your solicitor reviews your case and is happy to support you, you could then sign an agreement with them. From this point, your solicitor will guide you through all the remaining steps needed to complete your birth injury claim. You can contact Medical Negligence Assist now if you have any questions about the process of making a birth injury claim.
At Medical Negligence Assist, we can advise on making a birth injury claim on a No Win No Fee basis. Should you choose to hire a solicitor to support your claim, then you may sign a No Win No Fee agreement with them. This kind of agreement can offer several financial benefits, including the following:
- There’s no requirement to pay legal fees upfront to your solicitor.
- You also don’t have to pay legal fees during the process of your claim either.
- If your claim is unsuccessful, you will not be required to pay your solicitor’s fees. This gives your solicitor plenty of motivation to work hard on your case because they face extra risk.
Should you succeed with your No Win No Fee claim, then a small percentage of your compensation will be deducted by your solicitor. This is done in order to cover their legal fees. However, the amount they can charge is capped.
For free specialist advice on making a birth injury claim, you can contact Medical Negligence Assist today online or by phone. You can speak with us about the requirements and steps involved in making this type of claim. We can answer any questions you may have if you have evidence that medical negligence contributed to a birth injury suffered by you or your child.
To contact us, you can use the following methods:
NHS Resolution, which represents NHS staff and hospitals during compensation claims, regularly compiles annual reports on the cases it receives. In the NHS Resolution‘s 2018/19 report, it was found that 10% of the claims received in that time period (1,076 in total) were related to Obstetrics. These types of claims accounted for 50% (£2.25 billion) of the total value of all clinical claims received in the same period.
According to a report by the Royal College for Obstetricians and Gynaecologists (RCOG), there were an estimated 700,000 babies born in the UK in 2016 and 1,123 experienced a catastrophic birth injury or worse. RCOG judged that in 71% of these cases, there may have been a different outcome if different care was provided at the time.
For more guidance on claims for birth injuries or other injuries caused by medical negligence, you can check out our other guides below:
- Private Healthcare Medical Negligence Compensation Claims Guide
- The NHS’s response to an FOI request regarding birth injury statistics
- The NHS’s advice on forceps or vacuum delivery
- Read about how, in 2021, the Government pledged money to improve childbirth care.
In this final section of our guide on birth injury compensation, we’ve answered some commonly asked questions on this topic.
How do you prove a birth injury?
To prove a birth injury occurred that was preventable when making a compensation claim, you will need evidence that shows a medical professional and/or hospital owed you a duty of care. You will also need evidence of your injuries (or your child’s injuries) and that these are linked to the negligence you (or your child) suffered during birth. Proof could come in the form of medical documents, discharge notes or other medical records.
Who could act as a Litigation Friend?
Certain people can be appointed to become litigation friend when one is required to represent an injured party. To be considered suitable to become a litigation friend, the court appointing you has to determine that you will look after the injured party’s best interests and can make decisions in a fair and competent way. If the injured party is a child, then the litigation friend is usually someone close to the child, such as a parent or guardian.
Thank you for reading our guide about making a birth injury claim.
Guide by Stephen
Edited by Ruth