Birth injury compensation claims

Birth injury, or birth trauma, refers to harm or injury suffered by a baby around the time that they were born. Where a mother is injured or dies as a result of negligently managed pregnancy or birth, she or her family may also be able to claim compensation for her injury and their loss.

Birth injury claims often involve severely disabling conditions, such as cerebral palsy or severe neurological disability, which can be caused by mistakes at any stage of the mother’s maternity care during pregnancy, labour and birth, or the newborn baby’s neonatal care. The full impact of the injury and resulting physical, neurological and behavioural disability on the child’s life may only become evident over time, and may not even be diagnosed as related to the birth injury.

Cerebral palsy, hypoxic brain injury and other birth injury claims should be handled by solicitors who are specialists in complex, high value, medical negligence litigation for patients.

Mistakes in maternity care can be made during pregnancy (antenatally), during labour and birth (intrapartum), immediately after birth (postnatally) or in the early days of the baby’s life (neonatally).

Mistakes made during pregnancy, labour, and birth include:

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

Mistakes in neonatal care, at birth or in the early days of the baby’s life including:

• resuscitation and ventilation errors or delays;
• cooling errors;
• failure to administer vitamin K;
• failure to recognise and treat conditions, such as infection, hypoglycaemia, jaundice.

Our experienced birth injury solicitors recover maximum compensation settlements for children who have suffered severe birth injury as a result of negligent maternity and neonatal care.

Birth injuries which can be caused by medical negligence leading to compensation claims include:

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

Compensation settlements for severe disability caused by negligent birth injury are among the highest amounts that can be claimed for medical negligence. Whilst no amount of compensation can ever undo the harm that a child has suffered, the compensation can enable the child and their family to access the help that they need to meet the extensive needs that arise from their birth injury disability. The amount of compensation depends on the severity and impact of the child’s disability, the cost of meeting their needs for the rest of their life, and other factors, such as their life expectancy.

Our clients benefit from early interim payments and outstanding compensation settlements which pay for care, therapies, equipment and adapted accommodation. As soon as we can secure an admission of liability and interim payment from the negligent healthcare provider (usually represented by NHS Resolution) we start to make a difference where it is most needed, whether that’s providing access to SEN educational support and assistive technology, professional help with personal care, specialist therapies and medical treatment, buying an adapted vehicle or moving the child and their family to a more suitable, fully adapted home.

Birth injury compensation claims are complex and must be handled by claimant specialist solicitors to ensure that the child receives the financial provision that they will need throughout their life to manage their disability.

Ensuring the best settlement for a birth injury claim depends on the child’s solicitor having the expertise to maximise the benefit of the settlement to the child. Our experienced birth injury solicitors work with our experts and client families to gain a detailed understanding of the child’s injuries, their evolving needs, and the best settlement arrangement to meet those needs, to ensure the child receives the full benefit of their compensation.

Depending on their needs, final settlements may be paid as:

• lump sum payments:
  • for larger purchases, such as adapted accommodation or vehicles;
  • to allow for contingencies and flexibility in how the money is spent;

and/or:

• periodical payments (PPOs):
  • financial security from regular, tax-free payments, index-linked to keep up with inflation;
  • guaranteed lifelong provision for care. 

Once liability has been proven or admitted, interim payments of compensation can be obtained in advance, whilst the case is ongoing:

• to ease financial hardship;
• to pay for care, therapies and essential specialist equipment;
• to help buy and adapt accommodation.

Compensation for clients who are under the age of 18 or whose mental capacity is impaired is protected and 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 with families to help our severely disabled clients gain the maximum benefit from their settlements.

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

As accredited specialists in cerebral palsy and serious neurological disability claims, we have access to Legal Aid funding for eligible clients. We also offer no win, no fee agreements (Conditional Fee Agreements) for birth injury claims and will discuss with you which method of funding is best for you and your child.

For more information about funding options for birth injury claims visit our cerebral palsy site. 

We understand that families of injured children who receive large compensation settlements worry about publicity and other people’s unwanted interest in their compensation. The courts also recognise these concerns, and we routinely obtain anonymity orders for our vulnerable clients. In addition, our clients’ compensation is always protected, as it is safely invested and managed by a deputy and the Court of Protection. Or, in the case of clients with full mental capacity, through a personal injury trust.

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 their 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 about your NHS maternity or neonatal care, it is vital that you immediately seek independent legal advice from solicitors who specialise in advising injured claimants (patients) in medical negligence birth injury claims.

Boyes Turner have extensive experience of representing clients with cerebral palsy claims in their communications with NHS Resolution’s Early Intervention Scheme. We have found that even when NHS Resolution admits to the parents of a brain-injured child that aspects of their maternity care were negligent, they delay or avoid accepting full liability for the cause of the injury.

NHS Resolution’s role is to reduce the number of birth injury claims that are made, and to reduce the compensation that is paid to NHS patients who have suffered as a result of medical negligence. In our experience, in the rare cases where they offer an unrepresented family an interim payment, it falls 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.

Most medical negligence claims have a three-year deadline within which court proceedings must be started, but this time limit does not apply to children and also to adults who do not have full mental capacity to manage their own finances. This means that in practice, the three-year ‘limitation’ deadline rarely applies to a child’s own cerebral palsy claim, unless they are already an adult and have mental capacity by the time they instruct us to investigate their claim.

If the child has mental capacity at the age of 18, their three-year limitation period starts on the date of their 18th birthday and reaches the deadline when they are 21.  

The three-year deadline applies to any claim brought by a mother or her bereaved family for her own birth trauma injuries or death caused by negligent maternity care.

Many of our clients with cerebral palsy and neurodevelopmental disability from birth injury 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.

We advise anyone who is considering possibly making a birth injury claim at any time in the future to contact us as early as you can. This allows us to advise you about the deadlines that apply to your own circumstances, as well as how to ensure you have the best chance of early financial help and a successful claim.