Having a child should be a heart-warming and joyful event for the mother and the rest of the family. You expect that you and your child will be in good hands and will soon be able to bring them home.
Unfortunately, even seemingly straightforward childbirths can have devastating consequences if the doctors, midwives and other medical staff do not meet the expected standards of care. Any harm to the mother or baby during and around labour is considered a birth injury.
While minor injuries like bruising, swelling and pain are common and will generally heal within a few days or weeks, mistakes or negligence by medical staff can lead to severe, permanent consequences and even death.
If you or your child suffered a birth injury due to medical negligence, you might be entitled to make a birth injury claim. You might receive compensation for any physical and psychological trauma, financial losses and long-term implications of your or your child’s injuries.
What is a birth injury?
Many babies and mothers suffer minor injuries during delivery that do not require medical intervention and heal on their own in days or weeks. Medical negligence and mistakes during the birth or labour, on the other hand, may cause serious physical injuries to the baby or the mother that could have severe long-time effects.
Mishandling, misdiagnosis, incorrect treatment, medication errors and other forms of negligence can cause avoidable harm to the baby. Birth injuries can range from minor bruising to fractures and severe brain injuries.
Some examples of injuries to the baby include:
Cerebral palsy is a group of disorders that affect movement, muscle tone or posture and could be due to damage to the brain during labour or birth. In the United Kingdom, the current incidence rate is around 1 in 400 births, and approximately 1,800 children are diagnosed with cerebral palsy every year.
The condition might affect the whole body or be limited to one or two limbs. The typical signs and symptoms usually appear during the preschool years. These include:
- Stiff muscles and exaggerated reflexes
- Loss of balance and muscle coordination
- Tremors and involuntary movements
- Slow movements and variations in muscle tone
- Difficulty walking and exercising fine motor skills
- Delays in speech development and trouble speaking
- Excessive drooling and difficulty swallowing
- Learning difficulties and intellectual disabilities
- Seizures and hearing problems
- Bladder and bowel problems
- Mental health conditions
Medical negligence in cerebral palsy often involves a failure to deliver the baby early enough or by caesarean, monitor the baby’s heartbeat, and respond to the umbilical cord getting wrapped around the baby’s neck.
Erb’s palsy refers to partial or complete paralysis of the arm caused by damage to the brachial plexus, a group of nerves that control the shoulders, arms and hands. Most commonly, the condition is caused by bruising or tearing during birth and may be temporary or permanent.
Most injuries could recover with exercise and physical therapy, but in severe cases, the damage is irreversible and may cause:
- Paralysis or limpness of the arm, elbow and shoulder
- Numbness or tingling in the hand or arm
- Loss of feeling in the arm
- Internal rotation of the forearm, wrist and finger flexion, known as the waiter’s tip hand
If a child suffers a head injury during delivery, this could lead to severe neurological and physical impairment. The brain may become damaged due to lack of oxygen, viral or bacterial infections or physical injuries while exiting the birth canal.
Children may fully recover from mild brain damage, but severe cases may cause permanent disability and require lifelong medical treatment.
Spinal cord injuries
Spinal cord injuries could be due to excessive pulling, rotation or stretching of the baby’s neck during delivery. The typical manifestations are often catastrophic and include loss of reflexes, decreased or absent movement, apnoea and lack of response to painful stimuli.
Immediate recognition of symptoms and medical intervention is essential to reduce further damage. In general, however, the prognosis of spinal cord injuries is poor, with a high mortality rate or resulting in disabilities that require permanent care and assistance.
Pressure on the baby’s face during labour or delivery may damage the facial nerve, especially if forceps were used for delivery. The paralysis usually improves within a few weeks if the nerve was only bruised, but more severe injuries may require surgery.
Using excessive force during delivery may result in broken bones, especially of the collarbone or humerus. These fractures usually heal well within a few weeks unless the head of the bone is involved.
Other injuries to the baby during birth include:
- Injuries to the skin and soft tissues
- Perinatal asphyxia
- Hip dysplasia
Medical errors and negligence can also lead to complications in mothers, sometimes with permanent consequences. These include:
- C-section errors causing bladder and bowel injuries
- Injuries caused by negligent forceps or vacuum delivery
- Pelvic organ collapse
- Episiotomy mistakes causing infections, excessive blood loss and incontinence
- Poor suturing, causing tears and infections
- Pudendal nerve damage
- Delayed or misdiagnosis of pre-eclampsia
- Third or fourth-degree perineal tears
- Anaesthetic and medication errors
- Failure to remove instruments
If you or your baby suffered an avoidable birth injury, you might be entitled to claim birth injury compensation. To find out if you have a valid claim, enter your details into our online claim form or call 0800 678 1410 to speak to a legal adviser.
Can I make a birth injury claim?
A free conversation with a birth injury solicitor is the most straightforward way to determine if you can make a birth negligence claim for the injuries you or your baby suffered during birth. However, a claim should be possible if:
- A doctor, midwife or another medical staff breached their duty of care toward you and your child
- Their negligence led to a birth injury
- You became aware of a birth injury within the last three years
As long as you can prove negligence, you can make a birth injury claim against the NHS or a private healthcare provider. Your solicitor will work to prove you received substandard care by demonstrating:
- Breach of duty – not every mistake during birth is considered negligence. To have a valid birth negligence claim, you must prove the defendant did not exercise a reasonable standard of skill and knowledge before and during delivery. Breach of duty will be assessed with the help of medical professionals.
- Causation – you need to prove that the birth injury was the direct result of negligent care and that it could have been avoided with proper care.
- Damages – you need clear evidence of the harm you or your child suffered due to the breach of duty. The most important piece of evidence will be your medical records and an expert investigation with a government-approved professional.
For a free consultation with a legal adviser, call 0800 678 1410. They can let you know if you have a valid birth injury claim and answer any questions you may have.
What are the main causes of birth injuries?
Many birth injuries are minor, occur naturally, and should resolve in a matter of weeks. Other injuries, however, are caused by substandard medical care and could have long-term effects on the mother or baby.
Some forms of medical negligence that may cause a birth injury and entitle you to claim birth injury compensation include:
- Failure to act promptly in dangerous situations
- Failure to monitor the mother or baby during and after birth
- Misuse of tools such as forceps or vacuum extractors
- Attempting delivery when the baby’s shoulder is stuck
- Lack of screening or mistakes during screening
- Mismanaged pregnancy complications such as pre-eclampsia
- Failure to identify and treat a maternal infection
- Induced labour
- Incorrect suturing
- Use of unnecessary force during birth
- Failure to diagnose health conditions in the mother or baby
- Missing signs of distress in the baby, such as abnormal heartbeat or low sugar levels
- Delivering the baby too late
- Failure to identify retained placental or foetal tissue
- Incorrect administration of medicine or anaesthesia
- Negligent caesarean sections
- Failure to identify cord prolapse or cord compression
- Delayed diagnosis of ruptured placenta
Inexperienced or impatient doctors or staff can misread data, misinterpret symptoms or cause blunt force trauma. To have a successful birth injury claim, your solicitor will work to prove a direct causation between medical negligence and the birth injury.
How do I make a birth injury claim?
When you are dealing with the consequences of a birth injury, making a birth negligence claim may seem stressful and complex. If you believe your injury was due to substandard care, you should contact a medical negligence solicitor for legal advice.
If they believe you have a valid reason to claim compensation, your solicitor will work on your behalf to gather all the necessary proof and contact the liable party. To build a strong case, birth injury solicitors will try to collect:
- Photographs of any visible injuries
- Medical records detailing your treatments during pregnancy and delivery and any documents of the baby’s injury and the subsequent care they received
- An independent record with details of any psychological trauma you sustained
- Employment records for the liable medical professional
- Witness testimonies from other medical staff who assisted you throughout labour and delivery
- Statements from friends and family
- Expert testimony from independent healthcare professionals like obstetricians, paediatricians, anaesthetists and other experts
- Your own detailed notes regarding the birth injury and how it affected your life and the baby’s
- Proof of any financial losses you incurred due to the injury
After gathering all the relevant evidence and preparing your claim, your solicitor will send a claim notification form to the defendant, informing them of your allegations of negligence. The other party will have up to four months to respond to your allegations.
If they accept liability, your solicitor will start negotiating a suitable compensation award on your behalf. If the defendant denies liability, you might need to issue court proceedings and argue your case before a judge.
The trial will usually last up to a week, and the judge will assess liability based on the available evidence and expert witness testimonies. However, you may continue negotiations until the court hearing date. Only a tiny percentage of all birth injury claims actually end up in court.
How much compensation can I claim for a birth injury?
There is no specific set amount for birth injury compensation awards. The amount you might receive will depend to a great extent on:
- The type and severity of the birth injury
- The circumstances of the injury
- Any long-time of permanent effects
- The pain and suffering you endured
- Any out of pocket financial expenses and future costs
In any personal injury claim, you could receive compensation for:
Special damages, awarded to compensate for expenses and financial losses incurred as a direct result of the birth injury. This could include:
- Short-term medical expenses, including consultation fees, hospital charges, medication and other interventions
- Long-term medical expenses like physiotherapy, medications and other long-term treatments
- Transportation costs to and from the hospital
- Loss of income, if you were forced to stay home from work for a long time
- Costs of care
- Equipment and medical aids
- Particular modifications to your home or vehicle
General damages are awarded to compensate for the direct physical and psychological effects of the injury and the way this affected your life. This can cover:
- Physical pain and suffering
- Emotional and psychological distress
- Physical injury or impairment
- Loss or impairment of mental capacity
- Reduced quality of life
- Reduced life expectancy
- Loss of consortium or companionship
- Scarring and disfigurement
Birth injury solicitors will consider how an injury affected the victim’s life to calculate a suitable compensation amount. Calculating general damages is the most challenging aspect because it is meant to compensate for subjective injuries and losses.
However, the Judicial College regularly publishes guidelines that solicitors and judges refer to. According to their guidelines, you could be awarded:
- £8,550 to £19,690 for a minor but permanent vision impairment in one or both eyes
- £95,710 to £140,870 for severe epilepsy
- £264,650 to £379,100 for cerebral palsy causing severe cognitive and physical disabilities
- £2,070 to £11,980 for minor head or brain injuries with recovery within a few weeks
- £85,150 to £140,870 for moderate brain damage causing mild intellectual deficit and reduced working ability
- £240,000 to £320,000 for severe spinal cord injuries causing the victim to need permanent care
- In the region of £46,300 for temporary paraplegic paralysis caused by nerve damage
- Up to £11,820 for moderate pelvic injuries that don’t lead to disability in the mother
- £36,770 to £122,860 for severe pelvic injuries affecting mobility
- Around £4,380 for mental trauma
- £19,770 to £36,120 for moderate pain disorders
- In the region of £75,000 for a bowel injury during birth leading to faecal urgency and passive incontinence
- £51,460 to £108,620 for severe psychiatric damage, causing difficulty coping and poor prognosis
How long do I have to claim birth injury compensation?
In cases related to birth injuries to the mother, you will usually have three years after the date of the negligent injury to make a birth injury claim. This is known as the claim limitation date, after which it will be no longer possible to start legal proceedings.
The time limit may vary in certain circumstances, such as:
If you have a later date of knowledge that something went wrong during delivery or treatment, the three-year countdown begins from when you receive a diagnosis.
You could make a birth negligence claim on behalf of a mother who does not possess the mental capacity to claim without any time limit. The victim may lack capacity due to:
- high levels of stress, such as if they suffer from post-traumatic stress disorder (PTSD)
- intellectual disabilities such as Down syndrome
- severe sleep deprivation
- severe mental illnesses like bipolar disorder or depression
If you lost a loved one due to a birth injury, you could claim compensation within three years after they passed away.
If your baby was injured during labour or childbirth, the three-year countdown does not begin until they turn 18. If they suffer from a condition affecting their mental capacity, the claim limitation date gets indefinitely suspended.
Many birth injuries could take years to become apparent. Afterwards, it may also take a significant amount of time to be diagnosed and correctly linked to a birth injury. As soon as you have a formal diagnosis, you can contact a birth injury solicitor to begin your claim.
If you do not bring a claim on behalf of your child, they have three years to start legal proceedings after turning 18, provided they possess the required mental capacity and a claim has not already been made on their behalf.
If you lost your child because of a birth injury, you usually have three years from the date of death to make a birth negligence claim.
Medical negligence claims can be very complex; the sooner you seek legal advice, the more likely it is you will have all the necessary evidence to build a strong case and get the compensation you deserve. To start your claim, speak to a trained birth injury solicitor by calling 0800 678 1410 for a free consultation.
How common are childbirth injuries?
Minor birth injuries are natural and might occur after many deliveries. However, some trauma leading to cerebral palsy, fractures and injuries to the mother should not happen and can be attributed to medical negligence.
In 2018, 651,586 babies were born in the UK. According to reports from the Royal College of Obstetricians and Gynaecologists (RCOG), 1,145 died or suffered severe brain injuries before or during birth. There were 121 stillbirths, 165 babies were born alive but died within seven days after delivery, and 859 suffered catastrophic brain injuries.
The numbers remained consistent with the figures from 2017 when 1,136 babies out of the 755,042 born that year died or suffered a traumatic brain injury (see BMJ). The RCOG identified seven critical contributory factors, of which failure to follow guidelines and best practices was recognised in almost half of all injuries.
According to the NHS Resolution 2020/21 annual report, obstetrics claims represented 11% of all clinical negligence claims reported and accounted for 59% of the total estimated value, amounting to damages of £4.1 billion.
The rate of brain injuries per 1000 live births in England increased from 4.9 in 2012 to 5.19 in 2015. The main conditions that may lead to brain injuries during or soon after delivery have the following incidence rate:
- Hypoxic ischaemic encephalopathy (HIE) has an estimated incidence of 1.5 per 1000 live births.
- Perinatal stroke may affect 140 to 300 babies yearly.
- Intracranial haemorrhage incidence is estimated to be about 3 per 10,000 births in term infants and 20-30% incidence in preterm infants.
- Central nervous system infections may affect 0.39 of 1000 live births.
- Kernicterus incidence is estimated to be 0.9 per 100,000 live births.
Cerebral palsy is one of the most common birth injuries, with a current incidence rate of around 1 in 400 births. For every 100 girls with cerebral palsy, there are 135 boys suffering from the condition.
Birth fractures may affect 75 out of 10,000 born babies. Most fractures affect the clavicle, with a substantial variation in published incidences ranging from 0.035% to 3.2%.
Childbirth can also put the mother at risk. In 2010/12, the maternal death rate in the UK was 10 per 100,000 births.
Can birth injury claims be made using no win no fee?
In most cases, birth injury solicitors will work on a no win no fee basis. You may qualify for a no win no fee agreement if your solicitor believes you have a valid claim with a fair chance of success. A legal adviser can usually assess your eligibility through a brief and free of charge initial consultation.
No win no fee claims are the preferred way to claim birth injury compensation because:
- You do not have to pay any upfront fees
- There are no hidden charges throughout the claims process
- You do not have to pay any solicitor fees if you don’t receive compensation
- You do not have to pay anything if your case is unsuccessful
At the beginning of your claim, your solicitor will take out an After the Event (ATE) insurance policy on your behalf. This provides full financial protection in the event your claim is unsuccessful. Otherwise, you would have to cover:
- The defendant’s legal fees
- The cost of expert witnesses
- Barrister fees, if the claim ends up in court
Furthermore, your solicitor will likely arrange a free of charge consultation with an independent medical professional to assess the full extent of your or your child’s birth injury, any long-time or permanent effects and recovery prospects. This will serve as essential evidence to determine the value of your compensation.
If your birth negligence claim is successful, your solicitor will make the following deductions from your compensation:
- A success fee for winning the claim. This is an agreed fixed percentage of up to 25% of your compensation award, which will be explained to you clearly and in detail before you decide to proceed.
- The cost of the ATE insurance policy.
- Some basic legal fees that cannot be recovered from the defendant.
Will I need to go to court to make a birth injury compensation claim?
Most birth injury claims settle without needing court proceedings. Even if you cannot initially reach a settlement and issue court proceedings, negotiations can continue up until the trial.
According to NHS Resolution reports, less than 1% of all medical negligence claims in 2019/20 went to a full trial, and more than 70% concluded without court proceedings. The chances are you will settle before reaching trial.
Settling out of court offers several advantages both to the claimant and the defendant:
- It gives both parties more control over the outcome
- Out of court settlements are final and cannot be appealed
- Claims usually settle much faster without a trial
- Going to court involves higher charges and legal fees
- Settlements are private and generally involve a confidentiality clause
- Out of court settlements are less stressful
Even if your case is particularly complex and you will have to argue your claim before a judge, you should not worry. Your medical negligence solicitor will offer constant advice and support and guide you through every step.
To start your birth injury claim, speak to a trained legal adviser by calling 0800 678 1410 for a free consultation. Or if you would prefer to have an adviser call you back, you can arrange this by entering your details into our simple online claim form.