Birth injury compensation claims

Boyes Turner’s cerebral palsy and birth injury lawyers are top rated by Chambers Directory and the Legal 500. Our medical negligence team act exclusively for injured patients and their families.

Our extensive expertise and specialism in cerebral palsy and serious birth injury cases enables us to identify where things have gone wrong in childbirth and to recognise where a client is likely to succeed with their claim.

Our success rate is exceptional, as is the care we give each client family. We know the heartache and worry that many parents feel when deciding whether to approach a solicitor about making a medical negligence claim. We give clear and straightforward advice and take great care in identifying cases that we believe have reasonable prospects of success. We do not string parents along by pursuing cases that we believe will not ultimately succeed.

We understand the disability and loss that is suffered when maternity errors cause avoidable harm. We are experts in pursuing these claims and recovering top value compensation awards. We are committed to genuinely understanding and meeting the needs of our clients.

Our severely disabled clients benefit from our targeted approach to their claims. We work hard to secure early admissions of liability and interim payments which allow us to make a real difference to our clients’ lives, long before the claim has concluded. This means that our injured child claimants benefit more quickly from using specialist equipment in their adapted home, increasing their independence and communication, accessing supported education in their chosen schools. Their parents receive help with (and respite from) meeting their child’s 24-hour-a-day care needs and are supported by specialist case managers who are on hand to help with access to essential services and therapies. Financial hardship is alleviated. Worries about how the child’s care will be paid for in the future are eased. The child can participate in family life within in a suitably adapted and supported home environment whilst our high value claims specialists work on valuing and negotiating settlement of the claim.

Birth injury, or birth trauma, refers to harm or injury suffered by a baby around the time that they were born. (For information about how to claim compensation for injury caused to the mother during a negligently managed pregnancy or birth, click here)

Birth injury claims often involve severely disabling conditions, such as cerebral palsy or severe neurological disability. These claims should be handled by solicitors who are specialists in complex, high value, medical negligence litigation. The brain-injured child’s solicitor should be authorised by the Legal Aid Agency to handle cerebral palsy and serious birth injury claims with the benefit of Legal Aid to ensure that the child receives their full entitlement to compensation.

Serious birth injury is uncommon, but when a baby suffers unexpected harm it can be devastating to the individual child and their family, with consequences affecting every aspect of their life and reaching far into the future.

Whilst some conditions occur naturally, other types of birth-related injury, such as cerebral palsy and Erb’s palsy, can be caused by mistakes in maternity or neonatal care.  It is natural for parents of an injured child to seek an explanation as to what went wrong, whether directly from the hospital or through the legal process. When the answer is that their baby’s brain injury and disability was caused by negligent errors in their maternity or neonatal care, they are entitled to claim their child’s legal right to compensation.

The NHS is defended in medical negligence cases by NHS Resolution. NHS Resolution also appoints its own solicitors to represent the NHS in negligence claims. Since April 2017, NHS Resolution and its own solicitors (who are defending the NHS) have started directly contacting the parents of babies who have suffered brain injury during childbirth, where the NHS maternity care could lead to a claim.

If NHS Resolution or one of their solicitors has contacted you and has admitted that your maternity care was handled negligently, it is vital that you immediately seek independent, specialist legal advice.  

Boyes Turner are one of the few firms who have experience of handling cerebral palsy claims under NHS Resolution’s Early Intervention Scheme. We have found that even when NHS Resolution admits to the parents of a brain-injured child that their maternity care was negligent, they sometimes delay or avoid accepting full liability for the cause of the injury. In our experience, the interim payments that they offer tend to fall far short of the sums that the child is entitled to receive and that we routinely secure for our clients.  The sooner the parent comes to us after a birth injury or contact from NHS Resolution, the sooner we can secure a full NHS admission of liability for causing the child’s injury and begin meeting the child’s needs with a substantial interim payment.  

Maternity mistakes which often lead to a birth injury claim include:

• failing to recognise and take necessary steps to manage high risk pregnancies, including:
  • premature or prolonged rupture of membranes (PROM or PPROM);
  • pre-eclampsia;
  • group B streptococcal (GBS) infection;
  • IUGR (intrauterine growth restriction – baby small for dates);
  • VBAC (vaginal birth after previous caesarean section);
  • diabetic mother;
  • Rhesus incompatibility (where mother and baby’s blood groups are incompatible);
  • twin/multiple pregnancies;
  • maternal epilepsy.
• fetal heart rate monitoring errors, including:
  • failing to monitor the fetal heart rate:
    • on admission to hospital in labour;
    • with continuous CTG (electronic fetal heart rate monitor) in high risk cases;
  • misinterpretation of CTG traces;
  • failure to recognise and act upon fetal heart abnormalities;
  • maternal-fetal heart rate mix-ups.
• hyperstimulation and syntocinon (uterine stimulant) errors;
• delays in delivery, including failure to escalate to instrumental delivery or emergency caesarean section;
• negligent management of obstetric complications and emergencies, including:
  • fetal distress;
  • uterine rupture;
  • placental abruption;
  • haemorrhage;
  • impacted fetal head;
  • shoulder dystocia (disproportionate size of baby to mother’s pelvis);
  • vaginal breech delivery;
  • hyperstimulation;
  • meconium aspiration.
• negligent counselling and management of VBAC (vaginal birth after caesarean) deliveries;
• negligent technique in use of forceps/Ventouse suction;
• anaesthetic errors, including:
  • awareness;
  • intubation errors.

After the baby is born, mistakes in postnatal and neonatal care of the baby which often lead to a negligent birth injury claim include:

• resuscitation failures or delays;
• failure to recognise and treat signs of oxygen deprivation;
• cooling errors;
• failure to administer vitamin K;
• failure to recognise and treat infection;
• failure to recognise and treat hypoglycaemia;
• failure to recognise and treat jaundice.

Severe birth injuries often attract very large compensation awards. Claims with the highest value settlements are often those involving brain injury, such as:

• cerebral palsy;
• neurological disability from infection, such as meningitis;
• brain damage from kernicterus (caused by uncontrolled jaundice);
•  or brain injury from intracranial bleeding, such as from Vitamin K deficiency, SAH or SDH.

Birth injury compensation is rarely calculated solely on the basis of the injury. The physical injury is compensated by a payment for ‘pain, suffering and loss of amenity’ (PSLA), but this is only one aspect of the value of the claim.  The rest of the compensation award reflects the impact of the injury.  It is personalised to compensate for the way the individual’s own injury affects them in the context of their own personal, home and family circumstances.

Specifically, each ‘head of damage’ compensates the injured person with the sum of money that, theoretically, puts them back in the position they would have been if the injury hadn’t happened. In reality, no amount of money can put right the damage that has been done. Money can only buy solutions to help overcome some of the problems that are caused by their disability. This could include paying for wheelchairs and adapted vehicles to help with lack of mobility, carers to help with daily personal care, or technology to ease communication or access to education. Money can also replace the net earnings that the injured person will never be able to earn, and meet the costs of adapted housing, specialist aids and equipment and therapies which would not have been needed but for the injury.

Another reason why birth injury compensation can seem very high, is that any settlement must cover the injured person’s needs and losses from the date of injury for as long as those losses and costs will be suffered. In the case of a brain injured baby, these costs and losses will continue (and must be met or replaced) for the entire lifetime of the child.

It takes extensive experience of maximum disability claims and specialist skill and expertise to investigate, understand and accurately calculate the financial impact of a birth injury on a baby’s life. Boyes Turner’s nationally acclaimed cerebral palsy and birth injury lawyers have acted for the most severely injured clients for over 30 years. We are experts at recovering maximum compensation for our clients through these claims.

Our clients recover top level compensation for:

• pain, suffering and loss of amenity (PSLA) – the physical aspect of their injury;
• past, present and future professional and family care;
• case management;
• therapies, including;
  • physiotherapy;
  • occupational therapy (OT);
  • speech and language therapy;
  • counselling.
• specialist aids and equipment;
• adapted vehicles and wheelchairs;
• adapted accommodation;
• assistive technology;
• special education (SEN);
• loss of earnings and pension;
• private medical treatment;
• deputyship costs;
• additional holiday costs.

In general, people who have been injured as a result of medical negligence have three years from the date of the injury to start proceedings in a compensation claim. It is important to remember that where a mother was injured during a mismanaged delivery in which her baby was brain-injured, she only has three years from the date of the injury to pursue her own claim. Only in exceptional circumstances will the court allow a claim to be issued after the deadline. It is always advisable to seek advice from a specialist medical negligence solicitor as soon as possible.

Where a child is under 18 at the date of their injury, their three-year time limit starts from their 18th birthday. If they have mental capacity to manage their own affairs when they are 18, their ‘limitation’ deadline will expire when they are 21. Many of our cerebral palsy clients come to us as teenagers or young adults. In these cases, the client’s capacity for the purposes of litigating the claim, and their time limit for bringing proceedings, will be carefully assessed with the help of our medical experts.

Where the injured person’s mental capacity is impaired, as a result of their brain injury, there is no deadline for bringing proceedings. However, there are many good reasons to investigate a claim as early as possible. Evidence, such as medical records and the parents’ recollections of events, are easier to gather. Early investigation increases the likelihood that interim funds will be in place to help as the child’s physical, care and educational needs develop in the early years. The sooner we are involved, the sooner we can take steps to secure the help that will be needed for the child.

Whilst no child is too old for us to consider their claim, we always advise parents who have experienced the trauma of birth-injury to their child or birth-related injury to the mother to contact us as soon as they are considering a claim.

We understand that families of injured children who receive large compensation awards worry about publicity and vulnerability to other people’s reactions. The court recognises these concerns and we regularly obtain anonymity orders for our clients. In addition, our client’s compensation is always protected, as it is safely invested and managed by a deputy and the Court of Protection or, in the case of mentally competent adult clients, through a personal injury trust.

Our birth injury team are skilled in recovering top level compensation settlements for clients who have suffered:

• cerebral palsy;
• hypoxic ischaemic encephalopathy (HIE) or birth asphyxia;
• serious brain injury/neurological injury and learning disability;
• skull fracture and/or intracranial bleeding;
• Erb’s palsy/brachial plexus nerve injury;
• Rhesus disease/ haemolytic disease of the fetus and newborn (HDFN);
• kernicterus (jaundice) brain damage;
• neurological/brain injury from hypoglycaemia;
• vitamin K deficiency bleeding (VKDB);
• group B streptococcal (GBS) infection/ meningitis;
• stillbirth and neonatal (immediately after birth) death;

Each child’s birth history and injury is unique. Each child’s entitlement to make a claim and the amount of their compensation depends on their individual circumstances. The best way to find out whether your child’s injury was caused by negligent maternity or neonatal care and how to claim their full entitlement to compensation is to speak to our friendly, highly experienced and nationally acclaimed cerebral palsy and birth injury solicitors. All discussions take place on a confidential and no obligation basis.

We negotiate each client’s settlement carefully to ensure that it will be paid in a way which is best for the individual child and their family. Where a brain-injured child has an urgent need for an adapted home and full-time professional care but has a short expected lifespan, a settlement which provides flexible access to a large proportion of their compensation may be the priority. In these circumstances, most or all of their settlement might be paid as a lump sum.

However, where a severely disabled child is expected to live a long and healthy life, it is important that their settlement provides the certainty that, for as long as they live, there will always be money to pay for ongoing expenses, such as the cost of care. Where long-term provision is a priority, a large proportion of the settlement will be paid by a periodical payment order (PPO), with index-linked, tax free, annual payments guaranteed for the rest of the client’s life.

During valuation and settlement of the claim, it is essential that the child’s solicitor has the expertise to maximise the benefit of the settlement to the child. Only through a detailed understanding of the child’s injuries, their evolving needs, and the importance of timing, structure and usage of each type of compensation payment, will the child receive the full benefit of their compensation.

Each and every child’s case is carefully assessed and, according to their individual needs, our clients receive compensation in the form of:

•              lump sum payments:

• for one-off, capital costs, such as adapted accommodation or vehicles;
• for contingencies;
• to allow flexibility and choice in how the money is spent.

•              annual periodical payments (PPOs):

• to provide a regular, tax free income;
• to guarantee provision for care and lifelong needs;
• index-linked to keep up with inflation and rising costs;
• for financial security and peace of mind.

•              interim payments:

• to maximise the benefit of early rehabilitation;
• to ease financial hardship;
• to help buy and adapt accommodation;
• to pay for care and therapies;
• to buy essential specialist equipment.

Compensation for clients who are under the age of 18 or whose mental capacity is impaired is administered for them by a Court of Protection appointed deputy or through a personal injury trust. We work closely with our deputyship and personal injury trust specialists and our clients’ families to help our severely disabled clients gain the maximum benefit from their settlements.  

There are various important stages to making a claim for compensation. The liability stage, in which we ask or force the NHS defendant to admit liability, is very important. As soon as liability is admitted or ordered by the court, we can immediately apply for a substantial interim payment to start meeting the child’s needs straight away.

The duration of the liability stage depends on whether the NHS defendant fully admits liability or decides to defend the claim. If we have to prove their liability for our client’s injuries, we must obtain supportive, independent medical experts’ evidence, issue proceedings and take the case to trial.  We work very hard in every birth injury case to push the NHS defendant and its claims handler, NHS Resolution, to make early, full admissions of liability. 

Once liability is admitted, our experts must assess our client’s condition, future prognosis (expected outcome), and estimate their life expectation so that we can ensure their final settlement makes proper provision for their lifelong needs. As our birth-injured clients are usually very young, we often have to adjourn the case until the child has developed enough for their needs to be accurately assessed. This time is not wasted. Whilst the case is adjourned and interim funding in place, we use the time to help our client families find and adapt suitable accommodation, work with case managers to recruit carers, try out therapies and buy specialist equipment and assistive technology, and work with our SEN experts to secure special education. With much of this life-changing assistance already in place by the time our experts are able to form a clear assessment of the child, we are then well prepared to value the claim and negotiate settlement.

As accredited specialists in cerebral palsy and serious neurological disability claims, we have access to Legal Aid funding for eligible clients. This means that where the child’s case is funded by Legal Aid, their family can be sure that on settlement or a successful outcome to their court proceedings, their child will receive their full compensation without any deduction for legal costs. Whenever Legal Aid is available for a severely brain-injured child, we believe that it is in the child’s best interests for their claim to be funded by Legal Aid.

Legal Aid funding is only available to patients who have suffered a brain injury, such as cerebral palsy, at birth or within the first few weeks of their life. The child must have suffered their injury in England or Wales, and are not eligible if they have substantial funds of their own. The parents’ own finances are ignored for the purposes of their child’s application.

Legal Aid funding is only available where the eligible child’s claim is handled by a solicitor who is approved as a specialist in cerebral palsy and child brain injury claims by the Legal Aid Agency.