Neonatal brain injuries claims

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. 

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.

       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.

      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. 

     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.

     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.

     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.

      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.

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.

 

Medical Negligence FAQs

  • How much compensation can you get for medical negligence?

    In England and Wales, the law says that compensation for medical negligence should put the injured person back in the position that they would have been in but for the negligently caused injury, in so far as money can. This means that compensation is calculated carefully to reflect the injured individual’s personal circumstances. Whilst the way in which we calculate damages follows certain mandatory principles and practises, the differences in our clients’ injuries, pre-injury lifestyles and post-injury needs means that no two claims will be the same.

    The compensation that an injured person receives from a medical negligence claim depends on:

    • the type and severity of the injury/disability that was caused by the negligent treatment;
    • the cost of meeting the individual’s additional needs which arise from that injury, such as the cost of full-time care, necessary adaptations to housing, therapies, specialist equipment;
    • the financial losses that arise from that injury, such as loss of net income from being unable to work;
    • the length of time that the injured person will be affected by those costs or losses - for example, loss of earnings may be calculated to retirement age, whereas costs of care may continue to the end of life.

    Financial costs and losses will include past losses – from the date of the injury to the date of settlement – and future loss, beginning at date of settlement and projected into the future. Past losses will also include interest.

    All annual (recurring) costs, such as loss of earnings or the cost of care, are multiplied by a ‘multiplier’. The ‘multiplier’ is a figure which represents the number of years that the cost or financial loss will be suffered. It has been adjusted by a ‘discount rate’ which is set by the government. The discount rate allows for the fact that the claimant (injured person making the claim) receives their lifetime’s worth of compensation money early and can invest it and earn interest on it. The aim of the discount rate is to adjust the compensation paid for future losses to ensure that the claimant is neither over nor under-compensated.

    At Boyes Turner we take great care in the way we investigate and gather evidence of our clients’ needs and losses to ensure that our clients receive the maximum possible compensation for their injury. By ensuring that we understand each client’s individual needs, we are able to claim the highest levels of compensation and negotiate the best possible settlements for them.

    Where our client’s life expectation is long or uncertain, it is natural for their family to worry about whether there will be enough money to pay for their care in the long-term future. Where guaranteed provision for lifelong care costs is a priority, we negotiate settlements which combine lump sum payments with guaranteed, index-linked, lifelong, annual payments (known as periodical payment orders or PPOs). The lump sum gives the client flexibility and helps pay for capital costs. The PPO annual payments ensure that the client will always have a regular income which covers the cost of their care. Payments made by PPO are tax-free.

    Each settlement is skilfully negotiated and carefully structured to ensure that the compensation settlement is a source of financial security, certainty and peace of mind for our client and their family.

    Where negligent medical treatment has resulted in the patient’s death, depending on the individual’s circumstances, their family (as individuals or via the deceased’s estate) may be entitled to compensation for:

    • the deceased’s pain and suffering from the date of negligent injury to the date of death;
    • any dependent family members’ ‘loss of dependency’ on the deceased’s income or services;
    • funeral costs and other costs arising from the deceased’s injury and death;
    • a statutory bereavement payment.
  • How can you prove medical negligence?

    Medical negligence cases are legally and medically complex. If you have been seriously injured by medical negligence and want to claim compensation, it is essential that your solicitors specialise in clinical negligence and understand what is required, both legally and medically, to prove your claim.

    The law says that a medical practitioner is negligent if they have acted in a way that no responsible body of medical opinion would regard as acceptable. That means that if the care given was of a reasonable standard the court will not regard it as negligent, whatever the result.

    Where healthcare is found to be (legally) negligent, then the claimant (the person making the claim) must prove that their injury was caused or significantly worsened by the negligent care. This is important because the patient may already be very ill when they receive negligent medical care. In those circumstances, they must prove that their injury (and its financial consequences) would have been avoided or greatly reduced if correct treatment had been given. This aspect of the medical negligence claim is known as ‘causation’. Causation must be proven, even if negligence is admitted, for the claim to succeed and compensation to be awarded.

    Negligence and causation must be proven by supportive opinions from medical experts. We instruct experts in the same field of medicine as the negligent care to tell us whether the care that was given was of a reasonable standard. If negligence is proven, we ask medical specialists in the type of injury suffered, to confirm whether our client’s injury was caused or made worse by the negligent treatment, or would have been reduced or avoided with correct care.

    The medical experts make their assessments by examining the evidence:

    • the best evidence is often contained in the patient’s medical records which were written contemporaneously (i.e. at the time of the treatment);
    • reports of investigations carried out by the NHS trust, GP practice or Healthcare Safety Investigation Branch (HSIB);
    • evidence from a coroner’s inquest or pathologist if the patient died;
    • witness statements from our client and other witnesses;
    • any statements from the defendant’s witnesses – the doctors, nurses and other healthcare providers – which have been disclosed by the defendant healthcare professional or the NHS organisation that employed them.

    The experts may also back up their opinion with other reputable sources of professional information, such as:

    • guidelines published by The National Institute for Health and Care Excellence (NICE), relevant professional training bodies, such as the Royal College of Obstetricians and Gynaecologists (RCOG), or guidelines from the NHS Trust where the doctor worked;
    • research studies published in peer-reviewed, medical professional journals, such as the BMJ.

    They will also draw on their own clinical experience when giving their opinion about whether the treatment given was to a reasonable standard and was responsible for causing the injury.

  • How to make a medical negligence claim

    If you think that you or a family member have received negligent medical treatment which has caused serious injury or disability, we recommend that you speak to one of our friendly, experienced clinical negligence team as soon as possible. You can contact us by telephone or by email. Your enquiry will be handled confidentially and preliminary advice in relation to pursuing a claim will be given free of charge.

    Our solicitors will:

    • ask you to tell us, briefly:
      • what has happened;
      • what you think went wrong;
      • about your injuries;
      • how the injury has affected various aspects of your life.
    • advise you about the limitation deadlines (time limits) which apply to your claim;
    • advise you whether we are able to help you investigate your claim.

    If we are able to help you, we will;

    • ask for your medical records or authority to apply for them on your behalf;
    • discuss funding methods for making your claim and take steps to secure the best method of funding;
    • take a detailed statement from you which captures your recollections of the events which led to the injury and are relevant to the claim;
    • instruct medical experts to advise on breach of duty (to prove negligence) and causation;
    • we may also arrange a meeting with the experts and a barrister (counsel) to which you will be invited to attend.

    Once our initial investigations have taken place, we will;

    • discuss with you the strengths and weaknesses (the merits) of your claim;
    • discuss with you our strategy for pursuing the claim;
    • discuss any further evidence that is needed to support your claim;
    • notify the defendant (hospital or doctor) of your intention to pursue a claim and invite them to respond, giving them an opportunity to admit liability, before court proceedings are issued.

    If liability is admitted, we will enter judgment and apply for an interim payment as soon as possible to meet any urgent needs that you may have as a result of the negligently caused injury.

    If liability is disputed, we will discuss with you the further steps that we need to take to progress your claim.

    At all times our approachable, experienced clinical negligence lawyers will ensure that you are informed of any developments and understand the process. Your solicitor and our friendly support staff will always be available to discuss any concerns or queries that you might have along the way.

  • Is there a time limit for claiming medical negligence compensation?

    The law states that, in most cases, someone who has been injured as a result of medical negligence has three years from the date of the negligence which caused the injury to issue court proceedings. If they fail to issue court proceedings within that time, their claim will be statute barred, meaning that they lose their right to bring a claim.

    There are the following exceptions to the three-year rule:

    • if a child is injured before they are 18, their three-year deadline expires on their 21st birthday. In other words, their time doesn’t start to run until they are 18;
    • if the injured person is mentally disabled (lacks mental capacity) then their time doesn’t begin to run at all, unless their mental capacity is restored;
    • where the injured person has died as a result of negligent treatment, the three-year time limit expires three years after the date of their death;
    • if the injured person couldn’t have known that they had been injured by negligence, the court may allow a valid claim to proceed. In these circumstances, the claim must be issued within three years of when the injured person first became aware (or should have suspected) that they had been injured by negligent care;
    • the court has a general discretion to extend the time limit in cases where none of the above exceptions apply, but only does so in exceptional circumstances.

    Regardless of your time limit, we recommend that you contact us as soon as you can after the injury has taken place, even if at that stage you are only considering whether to make a claim. By contacting us early:

    • you may avoid later problems with deadlines;
    • we can advise you how to collect and preserve essential evidence;
    • we can ensure you have the best chance of securing your entitlement to full compensation for your claim.
  • How long do medical negligence claims take?

    The duration of a medical negligence claim depends on the individual circumstances of the client’s case. The claim is likely to take less time to conclude where:

    • liability is admitted by the defendant (NHS hospital or doctor);
    • the injured person’s injuries have stabilised and their prognosis (long-term outcome) is clear;
    • the injured person’s needs, the costs of meeting those needs and other financial losses are straightforward and easy to assess clearly.

    Circumstances which make the claim more complex and therefore take longer to resolve include:

    • where the defendant disputes that they were negligent or that the medical treatment given (even where admittedly negligent) caused the client’s injury;
    • where the injured person is a child whose disability is expected to change with their growth and development over time;
    • where multiple experts in different disciplines are needed to assess complex injuries and the likely long-term outcome.

    Our nationally acclaimed clinical negligence solicitors have helped hundreds of individuals and families whose lives have been devastated by medical negligence and we understand the impact that these tragic events and their financial consequences can have. We work hard to secure early admissions of liability and substantial interim payments so that we can begin to alleviate financial hardship and provide essential care, respite, specialist equipment, therapies and home adaptations long before the claim has settled. With liability judgments secured and interim funds in place, the individual and their family are able to focus on rebuilding their lives whilst we concentrate on valuing and negotiating settlement of the claim.

  • Will I need to go to court to claim medical negligence compensation?

    Our highly experienced medical negligence lawyers are recognised by Legal 500 and Chambers as experts in handling clinical negligence claims. Whilst we cannot guarantee that any particular claim will settle out of court, we take great care in investigating and preparing each claim that we take on. Our clients’ claims usually settle successfully without the need for a contested trial.

    Occasionally, cases can only be concluded by a formal court hearing, such as where:

    • NHS Resolution, the NHS’s defence organisation, decides to test the courts’ approach to a particular type of claim by taking a case all the way to court;
    • there is a point of law in a claim which needs clarification to avoid confusion is future cases;
    • where there is strong disagreement between the medical experts for each side about whether treatment amounted to negligence or caused the injury, needing the court to decide;
    • where there is a factual dispute about what happened between the parties which must be decided upon by the court before liability can be determined.

    Where our client’s claim is complicated by any of the above, we may advise our client that for the case to proceed it must go to a court hearing. Our caring and highly experienced solicitors and barristers ensure that our clients are always kept informed and supported.

    Even in non-contested cases, there will be occasions when the case is brought for shorter hearings before the court, such as after a settlement for a child or brain injured adult without mental capacity takes place.  In these cases, the lawyers for both sides present the agreed settlement to the court for the judge’s approval.

  • How to fund a medical negligence claim

    • Legal Aid – for brain injuries at birth

    As top-rated specialists in cerebral palsy and other serious neurological disability claims, we have access to Legal Aid funding for eligible clients. Where the child’s case is funded by Legal Aid, the family can be sure that on the successful conclusion of the claim, their child will receive their full compensation without any deduction for legal costs. Where Legal Aid is available for a child with serious brain injury, we believe that it is in the child’s best interests for their claim to be covered by Legal Aid.

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

     Legal Aid funding will only be given to a child where their claim is handled by a solicitor who has been approved as a specialist in cerebral palsy and child brain injury claims by the Legal Aid Agency.

    •  No win no fee – conditional fee agreement (CFA)

    Where Legal Aid is not available, we act for clinical negligence clients on a conditional fee agreement (CFA or ‘no win no fee’) basis.  Just as the name says, no win no fee means that unless our client wins their case there are no legal fees for them to pay. If the case fails, we do not get paid for the time we have spent working on their case. Our client’s liability for disbursements (such as expert and court fees) and any entitlement the defendant might have to legal costs is paid by an after-the-event insurance policy. 

    CFAs make it easier for people to afford a legal claim because they do not have to pay any upfront charges. There are no legal bills along the way. They pay nothing if they lose their claim. If they win, nothing is payable until the end of the case.

    •  Legal Expense Insurance

    If an injured person has legal expense insurance which was in place at the time that they were injured by medical negligence, their legal expense insurance policy might help with funding their claim. If you have legal expense insurance, you should let us know as soon as you are considering making a claim.

The service was personal, professional and considered. I was treated so kindly and in the end I knew that not only had I found the right organisation but also the right person.

Boyes Turner client

Get in touch

Please get in touch 0800 124 4845

Or we are happy to call you back at a time that suits you

Office open Mon - Fri: 08:30 - 18:00