In ordinary circumstances the birth of a child is one of the most joyful occasions in the lives of any family. Despite advances in modern medicine and the generally excellent standard of medical practitioner in the United Kingdom, some babies are not born in ideal circumstances. Some birth defects may be entirely unavoidable e.g. a genetic illness however some may be due to the negligence of a doctor, midwife or other member of the medical team who attended the mother in labour. Where an injury suffered by an infant during birth was caused by medical negligence, that child (via his or her parents) may be entitled to make a claim for compensation. Sadly, some birth injuries may even result in the death of the infant. In such tragic circumstances parents may be entitled to claim damages if their loss was caused by the negligence of the hospital and its staff.

Common Birth Injuries

Birth injuries can vary widely in terms of severity and long-term consequences. Although the majority of birth injuries do not in fact result for any form of negligence or malpractice on the part of medical staff, it is important that you consult with a solicitor if you have any doubts as a legal action for compensation may be available to you or your child.

Some of the more common birth injuries are:

  • Brachial Palsy Injuries (Erb’s Palsy and Klumpke’s Palsy)
  • Brain Injury
  • Bruising and Forceps Marks
  • Caput Succedaneum
  • Cephalohematoma
  • Cerebral Palsy
  • Episiotomy and Second or Third Degree Tears
  • Erb’s Palsy or Brachial Plexus Injuries
  • Facial Paralysis
  • Fractured Bones
  • Subconjunctival Hemorrhage

Please note that this is by no means an exhaustive list and other birth injuries may well be the subject of a successful compensation claim.

Liability

Birth injuries are no different from other branches of personal injury law with regard to the requirement that the injury sustained or illness contracted must have resulted from a person or legal body who had a duty of care towards the claimants (in this case the mother and child) at the time of and in the circumstances of the accident acting negligently in the performance of that duty.

Obviously, doctors, midwives and nurses owe a duty of care toward expectant mothers and their babies. It should, however, be made clear that it can often be difficult to prove negligence on the part of the medical team even when a birth injury has been sustained.

The Burden of Proof

For a successful birth injury claim, the court must be satisified ‘on the balance of probability’ that the treatment provided during labour was negligent and that this negligence was the cause, in full or in part, to the infant’s injury, illness or indeed death. This means that a civil court (where any form of personal injury case will be brought) will find in favour of the party whose story is the most likely version of events which is a much lower burden of proof than the criminal court equivalent i.e. “beyond a reasonable doubt”.

Legally speaking, what does “negligent”?

We use the word ‘negligent’ in general conversation all the time; a poor pass or a lack of concentration leading to a goal or a try maybe sometimes described by football or rugby fans as negligent. Therefore in a non-legal sense, the meaning of the word is often less than objective; what one person may deem ‘negligent’, another may describe as simply ‘careless’, ‘lazy’ or ‘naive’.

What exactly therefore, does ‘negligence’ mean in a civil court dealing with a medical negligence case in the UK?

British law on the subject was largely defined by the landmark cases of Bolam vs Friern Hospital Management Committee [1957] and Bolitho v. City and Hackney Health Authority [1997]. In layman’s terms, these judgements established the principle that the court should ask whether a normal competent doctor would have acted in the same or similar manner as the defendant doctor (or indeed midwife).

What this means, therefore, is that even where the doctor’s actions caused or contributed to the injury, those actions may not be deemed negligent if it can be successfully argued that they were the ‘reasonable’ and logical actions of a medical professional or professionals given the information available and the relevant circumstances. Consequentially, even when a doctor has made an error, as long as other medical professionals might have taken the same action and that the decision to do so was reasonable or somewhat logical, that error may not actually constitute medical negligence.

Making a claim on behalf of an injured child

In the majority of circumstances a person who has been injured has three years from the date of knowledge to commence court proceedings, while in theory this applies to ‘birth injuries’ to children, in practice the claimant in such cases enjoys a longer period of time before the opportunity to sue will be lost.

What is the date of knowledge?

Generally speaking (there are some exceptions), the ‘date of knowledge’ is the date on which the injury was sustained i.e. the claimant’s date of birth. In some circumstances the injury, condition or illness resulting from the negligent treatment may not be immediately evident. In such situations the date of knowledge may be the date on which said problem is diagnosed.

Do parents lose the chance to sue on behalf of their child on his or her 3rd birthday?

The short answer to this question is; no. A child who is injured at birth due to negligent medical treatment is of course, for legal purposes, a ‘minor’. For a minor the date of knowledge of the injury is in fact the victim’s eighteenth birthday i.e. time does not begin to run against the injured infant until he or she reaches majority. Thereafter, under current British law, the injured party after turning eighteen years of age still has three years within which to issue proceedings in court. Alternatively, a compensation claim can be made long before the injured party celebrates his or her eighteenth birthday provided a parent or guardian acts as ‘next friend’.

“How much compensation will my baby get?”

Any responsible litigation solicitor will make it very clear in an initial consultation that prior to the receipt of medical records and reports on the victim, it is simply not possible to answer this question with any degree of accuracy. Moreover, it would be unprofessional to do so at such an early stage.

Numerous factors contribute to a compensation settlement or award for birth injury negligence. Some of the more basic considerations in determining the value of this type of personal injury claim are as follows:

  • Type of injury Medical problems resulting from a birth injury are valued with respect to their gravity and whether or not objective proof, such as expert diagnosis, is required in order to be believed . Understandably, the permanency and persistence of the injury, illness or condition are also significant factors.
  • Prognosis A long-term or permanent injury or illness justifies a greater amount of compensation that could be expected for a short-term problem. This can be a particularly significant factor for or an injury that occurred at birth, a problem that is predicted to be life-long problem is precisely that i.e. one that will affect the victim from birth until he or she dies. The claimant’s solicitor will therefore argue that the amount of compensation awarded should reflect that.
  • Severity and persistence of the pain suffered Personal injury compensation is designed to compensate the victim for their injury and related suffering. The more intense the pain felt, therefore, and the persistence of same, the higher the amount of compensation awarded is probable to be.
  • Necessity of life-long care or future medical treatment A birth injury may require medical intervention later in life to rectify, in full or in part, the damage that was done. This is just one of the many long-term consequences that may impact the size of a birth injury negligence compensation claim. The health condition resulting from the medical treatment may have adverse effects on the victim’s future career opportunities, social life or even day-to-day living; the most extreme cases may require that the victim be cared for for the rest of his or her life. Clearly, the more debilitating the medical condition caused by the medical negligence is, the higher the settlement is likely to be.

Please note that each medical negligence compensation claim is unique. If you believe that your child suffered an injury or developed an illness due to negligent medical practice during his or her birth, he or she may have a valid personal injury claim that you can issue on their behalf. You are advised to discuss all of the points raised in the preceding article with a solicitor as soon as possible.