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In hospital, babies who are born prematurely, unwell or who are small for their gestational age will need specialist neonatal care.

This usually takes place in a neonatal unit (NNU) or special care baby unit (SCBU) or a neonatal intensive care unit (NICU), depending on the treatment, monitoring and breathing support needed by the baby.

Do all newborn babies who need care on NICU, NNU or SCBU have a claim for negligence?

Newborn babies are admitted to the neonatal unit when they have or are at risk of a condition or complications which need specialist care, observation and treatment. Most commonly, a newborn baby may need neonatal unit care if they: 

  • need help with breathing and keeping up their oxygen levels by ventilation or continuous positive airway pressure (CPAP);
  • are at risk of hypoglycaemia, needing help with feeding and monitoring to maintain healthy blood sugar and nutrition;
  • need heart-rate monitoring;
  • have jaundice, needing phototherapy to avoid developing kernicterus;
  • are recovering from or need treatment for infection;
  • are recovering from surgery or other treatment;
  • have suffered HIE (hypoxic ischaemic encephalopathy - brain damage from oxygen deprivation) and need therapeutic cooling;
  • were born prematurely, before 37 weeks of pregnancy;
  • had a low birthweight. 

Types of birth injuries which might lead to a claim

A newborn baby may have a medical negligence claim if they have suffered serious injury from:

  1. perinatal asphyxia or HIE (oxygen deprivation immediately before, at or after birth);
  2. meconium aspiration during and immediately after birth;
  3. kernicterus from untreated jaundice;
  4. delayed treatment of infection, such as group B strep or meningitis;
  5. untreated hypoglycaemia;
  6. vitamin K deficiency bleeding (VKDB) or haemorrhagic disease of the newborn;
  7. hypocarbia.

1. Perinatal asphyxia or HIE

Perinatal asphyxia is the name given to a baby’s lack of oxygen or breathing problems around the time of birth. The unborn baby (fetus) may not get enough oxygen just before birth, usually in the final hours or minutes of labour and during delivery. An unborn baby’s heart-rate will be regularly monitored during a properly managed labour and delivery. If signs, such as abnormalities in the CTG fetal heart monitor recording, suggest that the baby is struggling to get enough oxygen, steps should be taken to deliver the baby quickly to avoid damage to the baby’s brain.

A newborn baby may have difficulty breathing immediately after birth. Where a baby is known to be suffering from lack of oxygen at the time of birth, specialist neonatal nurses or paediatricians should be present at the birth to clear the newborn baby’s airway and provide resuscitation or ventilation to help the baby breathe.

When a baby’s brain is damaged from lack of oxygen around the time of birth, the type of brain damage is known as hypoxic ischaemic encephalopathy (meaning damage to the brain from lack of oxygen in the blood) or HIE.

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2. Meconium aspiration

Meconium is the medical name for a newborn baby’s first faeces. It is normal for a baby to pass meconium soon after birth.  Meconium contains the material that the unborn baby ingested whilst it was in the womb, so it is thick, dark green, and sticky like tar, unlike the yellowish coloured nappies of a baby who is fed on milk. 

During labour and delivery, meconium staining in the amniotic fluid can be one of the signs that the unborn baby is struggling to take in oxygen and suffering from fetal distress. If the newborn baby breathes in (inhales or aspirates) meconium, it can block the baby’s airway.  A baby who has aspirated meconium must have their airway cleared as soon as they are born, to allow them to breathe. This is why meconium can be both a sign and a cause of oxygen deprivation during or immediately after birth.

Delays in delivering a distressed baby or in clearing their airway and resuscitating immediately after birth prolong the period of oxygen deprivation (hypoxia/asphyxia).  Without oxygen, the baby’s brain can be damaged in minutes, leaving them with permanent brain damage and lifelong disability.

Meconium aspiration claims

A baby may have a claim if they suffered distress with meconium before birth or inhaled meconium at birth, which caused:

  • brain damage;
  • cerebral palsy;
  • developmental disability;
  • physical disability;
  • learning difficulties.
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3. Kernicterus

Kernicterus is a rare but serious complication of jaundice. Jaundice is a yellow colouring of the skin. It happens when babies build up too much of a chemical called bilirubin in their blood. In most cases this condition goes away on its own, but some babies need phototherapy or exchange transfusion treatment. If the baby’s bilirubin level is allowed to get too high it causes brain damage. Kernicterus is the name given to the pattern of damage that is done to the baby’s brain by excessive levels of bilirubin.

Kernicterus compensation claims

Claims for kernicterus brain injury usually arise after delays in referral, diagnosis and treatment of babies with jaundice by hospital maternity or neonatal and paediatric staff, community midwives or GPs. 

Kernicterus is dangerous but it is preventable with proper care.  If your child has suffered kernicterus brain injury, you should seek advice from a specialist brain injury solicitor with experience of kernicterus compensation claims. 

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4. Infection - Group B streptococcus/meningitis

Severe neurological disability, such as cerebral palsy, can be caused by infection in pregnancy, during labour and birth, during the neonatal period (immediately after birth) or in the child’s infancy. Cerebral palsy claims often arise from negligent delay in diagnosis and treatment of the infection.

Common infective causes of cerebral palsy or serious neurological disability include:

  • maternal infection during pregnancy, including group B streptococcus (GBS);
  • infection related to early or prolonged rupture of membranes (PROM/waters breaking);
  • neonatal (newborn) or childhood meningitis.

Where diagnosis and treatment of infection in a newborn baby is delayed, it can lead to life-threatening conditions and permanent disability, including:

  • cerebral palsy;
  • septicaemia;
  • pneumonia;
  • meningitis;
  • blindness;
  • deafness;
  • serious learning disability.

Infection negligence claims

Claims arise when a baby’s incorrectly treated infection causes permanent brain injury and lifelong, severe neurodevelopmental disability.

Our neonatal injury lawyers have helped clients who have been injured by negligent treatment for infection after:

  • delay or failure to recognise the signs and suspect or diagnose meningitis;
  • delay or failure to diagnose sepsis/septicaemia;
  • delay or failure to refer or admit the patient to hospital or to the neonatal unit;
  • failure or delay in treating urgently with iv antibiotics;
  • failed to monitor a pregnant woman with group B streptococcus (GBS);
  • failed to give antibiotics to a pregnant woman with group B streptococcus (GBS):
  • where the mother had a GBS urine infection in pregnancy;
  • where the mother’s waters broke before 37 weeks gestation;
  • where the baby was delivered by caesarean section;
  • failed to monitor a baby at high risk of developing GBS infection.
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5. Hypoglycaemia

Hypoglycaemia means low blood sugar (glucose). Neonatal hypoglycaemia is a common condition in newborn babies who are unable to maintain healthy blood sugar levels in the first few days of life before they are feeding regularly. Although common and treatable, neonatal hypoglycaemia can be dangerous if the baby’s blood sugar is allowed to drop below safe levels. If untreated, it can cause permanent brain damage and disability. Hypoglycaemia can occur alongside other serious neonatal conditions.

Hypoglycaemia negligence claims

Claims arise when the baby suffers permanent brain injury and lifelong, severe neurodevelopmental disability.

Our neonatal injury lawyers have helped clients who have been permanently injured by neonatal hypoglycaemia following:

  • failure to recognise the risk factors of hypoglycaemia;
  • failure to monitor the baby’s blood glucose levels;
  • delay or failure in treating the baby’s blood sugar levels;
  • delay in obtaining the result of a blood glucose test;
  • failure or delay in acting on a low blood glucose result;
  • failure or delay in referring the baby to a paediatrician after concerns about hypoglycaemia have been identified;
  • delayed attendance or review by the paediatrician on a midwife’s request to review a baby with hypoglycaemia;
  • failure or delay in admitting a baby with a diagnosis of hypoglycaemia to the neonatal unit;
  • failure or delay in administering intravenous glucose to the baby on the neonatal unit;
  • administration of insufficient glucose to correct the baby’s hypoglycaemia;
  • failing to give the mother appropriate advice on what to watch out for and what to do on discharge of the baby.
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6. Vitamin K deficiency bleeding (VKDB) or haemorrhagic disease of the newborn

Vitamin K deficiency bleeding (VKDB) or haemorrhagic disease of the newborn, is a rare blood clotting disorder. It affects 1 in 10,000 newborn babies. It is caused by a shortage of Vitamin K. At birth, babies don’t have the intestinal bacteria that their body needs to create Vitamin K, a natural substance which helps our blood clot and keeps our bones strong. This leaves them at risk of Vitamin K deficiency bleeding (VKDB). 

VKDB affects each baby differently. Some babies bleed in their urine, from their rectum or from the mucous membranes in their nose and gums. For some babies VKDB will be fatal. Around one third of babies with VKBD bleed into their brain, causing permanent brain injury and serious disability.

To protect babies from VKDB and the serious injuries that it causes, it is standard practice for newborn babies to be given Vitamin K, either by injection or orally, immediately after birth. Where the midwives or doctors fail to administer Vitamin K to a newborn baby and the baby suffers permanent injury from VKDB, they may be entitled to claim compensation for their injury.

Vitamin K Deficiency Bleeding (VKDB) negligence claims

Claims arise when a baby newborn baby suffers intracranial bleeding, brain injury and lifelong, severe disability.

Our neonatal injury lawyers have helped clients who have been permanently injured by VKDB following hospital or community midwife failure to administer Vitamin K at or immediately after birth.

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7. Hypocarbia – injury from over-ventilation

Newborn babies who are unwell or premature sometimes need help to breathe. After initial resuscitation, they may be moved for intensive care to the NICU (neonatal intensive care unit) where their breathing will be controlled by a ventilator machine. 

Ventilation must be carefully managed to avoid overventilation, in which the baby’s carbon dioxide levels become dangerously low. This reduces the blood flow to the baby’s brain, leading to:

  • brain damage, periventricular leukomalacia (PVL) or intraventricular haemorrhage/bleeding;
  • cerebral palsy;
  • developmental delay;
  • physical disability;
  • visual impairment;
  • hearing loss;
  • damage to the baby’s lungs.

Claims arise when the baby suffers serious injury after negligent care resulting in over-ventilation, including:

  • Failure to monitor the ventilator settings;
  • Failure to monitor the effects of ventilation on the baby’s blood gases;
  • Failure to treat or correct abnormal carbon dioxide levels when they occur.
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Can older children, teenagers or young adults claim for neonatal negligence?

Negligent neonatal care of a newborn baby can cause severe disability which lasts far beyond the baby’s first few weeks. The injury may not be obvious straight away. Depending on when the damage to the child becomes apparent, our client families may come to us at different stages of their child’s development.

In some cases, we meet the parents of an injured child shortly after birth. This usually happens when the parents know that something has gone wrong.   They may have struggled to get urgent medical treatment for a child with infection, which develops into meningitis.  Their baby’s brain scan may show a type of injury that is caused by hospital negligence. For example, brain scans can show kernicterus (from untreated jaundice), intracranial bleeding (from lack of Vitamin K), or HIE (from lack of oxygen).

In other cases, such as where the baby has been injured by untreated neonatal hypoglycaemia, the injury may not be obvious straight away.  Parents may not realise that their child has neurological disability until they fail to meet developmental milestones, or struggle to keep up with others in school.

In these cases, the parents may come to us when the child is of school age. Sometimes it is the injured teenager or young adult who comes to us directly to ask for help with investigating the cause of their disability.

Neonatal brain injury can leave the injured child with impairments which range from hardly noticeable subtle problems to a diagnosis of cerebral palsy with very severe disability. The full extent of the problems caused by the neonatal injury may only come to light as the child grows and develops.

We have helped children and teenagers with neonatal injury who now have:

  • cerebral palsy;
  • spasticity;
  • athetosis;
  • severe cognitive damage;
  • learning disability;
  • delayed development and missed milestones;
  • impaired control of movement (motor control);
  • damage to their senses;
  • difficulty with feeding;
  • impaired speech and communication;
  • behavioural problems.

Meet your team

Susan Brown

Partner

Richard Money-Kyrle

Partner

Julie Marsh

Senior associate - solicitor

Vanessa Wand

Senior associate - solicitor

Nicola Anderson

Associate - solicitor

Rachel Makore

Associate - solicitor

Alpa Rana

Associate - solicitor

Fran Rothwell

Associate solicitor

Sita Soni

Associate - solicitor

Tara Byrne

Solicitor

Ben Ireland

Solicitor

Audrey Elmore

Medical records coordinator

Nicky Melville

Professional support assistant

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Neonatal brain injury cases

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