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Written on 10th July 2020 by Susan Brown

Neonatal care failings are putting babies at risk of brain injury and lifelong disability, according to reports by HSIB, ESMiE and NHS defence organisation, NHS Resolution.  In addition, local investigations often fail to involve neonatal specialists, missing vital opportunities to identify and learn from mistakes in neonatal care.

This means that parents are often left unaware that their baby has been injured by neonatal negligence or what that means for their child in the future. If you think that your child may have suffered a neonatal brain injury, Boyes Turner’s experienced birth and neonatal injury lawyers are here to help.

What is a neonatal brain injury?

Neonatal means newborn. A neonate is a newborn baby. The ‘neonatal period’ is the medical term for the first few weeks of life. Hospitals with maternity units or children’s (paediatric) units usually have a specialist unit for premature,  small or unwell babies needing specialist care in the first few weeks of their life. This specialist unit for newborn babies is known as the neonatal unit (NNU) or special care baby unit (SCBU) or neonatal intensive care unit (NICU), depending on the level of monitoring, treatment and breathing support that is needed.

Does every baby who is admitted to NNU, NICU or SCBU have a negligence claim?

There are many reasons why a newborn baby might need care on a neonatal unit. Premature babies or those with very low birthweights often need more support as they are at greater risk of complications. Depending on their condition,  babies born at term may also need specialist neonatal care.

Common reasons for a baby’s admission to NNU, SCBU or NICU include:

  • help with breathing and oxygen levels by ventilation or continuous positive airway pressure (CPAP);
  • help with feeding and keeping their blood sugar up because they are at risk of hypoglycaemia;
  • monitoring their heart rate;  
  • monitoring, phototherapy or exchange transfusion treatment for jaundice if they are at risk of kernicterus; 
  • to recover or receive treatment for an infection;
  • to recover from surgery or other treatment;
  • for therapeutic cooling after suffering HIE (brain damage from lack of oxygen) at birth.  

Common causes of neonatal brain injury claims

Mistakes in maternity and neonatal treatment may result in life-threatening injuries. Babies who have suffered or are at risk of brain injury as a result of these mistakes often need to spend some time in a neonatal unit for specialist care. The most common negligent causes for neonatal brain injury include:

  • Resuscitation errors

A newborn baby can suffer permanent brain injury in minutes if they are deprived of oxygen as a result of delayed, incorrect or lack of resuscitation at birth. Delays often occur when the midwife fails to warn the paediatric or neonatal team that they need to be present at delivery to immediately resuscitate a compromised baby at birth. Incorrect technique, lack of necessary resuscitation equipment or the absence of clinicians with resuscitation skills can cause or extend the period of oxygen deprivation in a newborn baby.

When meconium is present in the liquor or fluid which surrounds the baby and drains during childbirth, this sticky tar-like substance can clog up the baby’s airway making it difficult for the newborn baby to breathe in air at birth. During labour, meconium in the liquor can be a sign of a distressed baby, but it can also be the cause of oxygen deprivation and brain damage if it is not properly cleared from the baby’s airways immediately after birth.

  • Hypocarbia – ventilation errors

Newborn babies who need help to breathe may need ventilation in a neonatal intensive care unit or NICU. The ventilator machine breathes for the baby and controls their oxygen levels but these must be carefully monitored. Ventilation errors can cause brain injury from hypocarbia if the baby’s carbon dioxide levels are allowed to drop below safe levels.

Controlled therapeutic cooling has been found to be effective in reducing the damage to the brain and level of disability in a baby who has suffered HIE from lack of oxygen around the time of birth. There are risks and benefits to cooling which must be carried out at the correct time and temperature and with informed parental consent. Errors in cooling or failure to offer cooling to a newborn with HIE may lead to additional brain damage.

Newborn babies are unable to produce their own vitamin K, a vital blood clotting nutrient. This leaves them at risk of brain injury from internal bleeding (haemorrhage) into the brain. This dangerous condition is known as vitamin K deficiency bleeding or VKDB. To avoid VKDB it is standard practise for newborn babies to be given vitamin K at birth. Failure to give vitamin K to a newborn baby may result in severe brain damage and disability.

Jaundice is commonly seen in newborn babies but must be carefully monitored and acted upon quickly if the baby’s bilirubin levels become dangerously high. Most cases of neonatal jaundice resolve without treatment but some babies need phototherapy (light treatment) or an exchange transfusion to bring their bilirubin levels down to safe levels. Kernicterus is the pattern of brain damage which is seen on the brain scans of babies whose jaundice was incorrectly treated. Kernicterus is a never event and should not occur with correct neonatal (including community midwife) care.

Neonatal hypoglycaemia (low blood sugar or glucose) is another condition that is common in newborn babies but becomes dangerous if undiagnosed or incorrectly treated. Newborn babies often struggle to maintain healthy blood glucose levels until they have established a regular feeding routine. Babies at risk from hypoglycaemia must be carefully monitored and fed, if necessary, with intravenous (IV) glucose. Incorrectly treated neonatal hypoglycaemia can cause neurological and learning disability which may not become obvious until older childhood or teenage years.

Babies may be exposed to infection during and after childbirth. Common causes include maternal infection from GBS, a prolonged delay between the waters breaking or rupture of membranes and birth, or exposure to infection from someone else in the days after birth. Failure to treat maternal infection in pregnancy, to monitor a baby at risk of GBS or delays in diagnosis and treatment of a baby’s infection can lead to permanent brain damage and disability.

Making a claim for compensation following neonatal brain injury and disability

Neonatal brain damage causes a range of physical and neurological disabilities, including:

  • cerebral palsy, spasticity or athetosis
  • ​​delayed development
  • delay in meeting early years milestones
  • cognitive/intellectual damage/learning disability
  • damage to the senses
  • feeding difficulties
  • impaired speech and language
  • behavioural problems

Many of these only become apparent when the child or teenager struggles to learn or socialise at school. Others are physically and developmentally devastating and are recognised straight away.

It is never too soon to discuss your concerns about potential harm from your child’s neonatal treatment with us. Early advice can be reassuring and early action may provide answers and interim financial help whilst waiting for the full extent of the child’s disability to become known. However, we also have clients who come to us as teenagers and young adults, seeking answers for themselves or parents of older children.

Many families who have struggled for years to cope alone find that compensation provides their child with quality of life and eases their worries about how their child’s increasing needs will be met.

Legal Aid is available for neonatal brain injury medical negligence claims

Legal Aid is available for birth and neonatal brain damage claims if the injury was caused during pregnancy, childbirth or the first eight weeks of the baby’s life. Where our specialist brain injury lawyers believe the severely injured child is entitled to claim and they are eligible for Legal Aid, Boyes Turner make a Legal Aid application on the child’s behalf.

If you are caring for a child who has suffered a brain injury from negligent care at birth or in the first few weeks of life, contact us by email