Birth injuries to babies and mothers during childbirth

The birth of a new baby is a very special time for parents and indeed the whole family. If things go wrong, either during the pregnancy or birth, the effects can be devastating.

If either the baby or the mother suffers an injury due to medical negligence then you will be entitled to make a claim for compensation. Contact the team for Free Consultation.

The most common birth injuries are:

  • Brachial Plexus
  • Cerebral Palsy
  • C-section Injuries
  • Erb’s Palsy
  • Group B Strep Infection
  • Infant Shoulder Dystocia
  • Instrumental Delivery Injury
  • Kernicterus
  • Wrongful Birth

Brachial Plexus

Brachial Plexus birth injuries can occur when the baby’s neck , shoulder and arms are subject to excessive force during delivery. If the shoulder/neck nerves and muscles are damaged this can lead to permanent disability which can affect all aspects of daily living.

Brachial Plexus injuries are often caused during vaginal delivery when the baby becomes stuck, and attempts have to be made to quickly deliver the baby with forceps or vacuum extraction (also called the Ventouse).

Doctors and midwives will need to use certain techniques to reduce the force being applied upon the baby’s head and shoulders in order to avoid this type of injury.

Possible risk factors for Brachial Plexus/ Erb’s Palsy Birth Injuries

  • Large Baby
  • High maternal body mass index
  • Gestational diabetes
  • Prolonged labour

Types of claims that Hodge Jones Allen have dealt with:

  • Failure to offer caesarean section – In some cases we have successfully argued that due to the size of the baby the mother should have been offered a C-section – which would have avoided the shoulder dystocia episode.
  • Failure to perform the McRoberts manoeuvre – This manoeuvre is taught to all doctors and midwives. When performed it eases the birth of the baby and hopefully avoids injuries such as Erb’s palsy (see below).

Erb’s Palsy

Erb’s palsy is type of nerve injury that sadly affects one or two babies out of every one thousand births.
The injury affects the brachial plexus – which is a network of nerves which enable us to control our arms, hands and fingers.

At the time of birth (especially during an urgently required birth) the baby’s brachial plexus may be injured – usually by the head/neck area being subject to extreme force. The causes of the injury are well known and techniques have been introduced to try to avoid this type of harm.

Possible causes of Erb’s palsy

  • Incorrect use of forceps
  • Excessive force
  • Failure to correctly perform the McRoberts manoeuvre
  • Large baby – failure to advise of C-section

Injuries to mothers during childbirth

Our specialist medical negligence solicitors have over forty years’ experience of acting for mothers who have suffered an avoidable injury before or during the birth of a child. We always recognise the impact that such injuries can have, both physically and psychologically, at what is meant to be a time of great celebration.

We understand that all births are different and that some deliveries may be more difficult than others. A number of our solicitors are women and also are qualified doctors. They recognise that difficult decisions have to be made, but sometimes things can go wrong and a young mother can be left with an injury, possibly a life-changing one. This can make it very difficult to cope with a new born baby.

Childbirth is a well-studied traumatic experience for women’s bodies, yet modern medicine still has not fully understood how seriously injured , sometimes for the rest of their lives, some mothers are.

Many of the injuries suffered by mothers relate to incontinence or sexual problems – and our solicitors recognise that these are not easy matters to discuss in the context of a legal claim.

Types of previous claims include:

  • Injuries caused by negligent use of forceps
  • failure to diagnose/ treat postnatal bleeding
  • Injuries to the bowel or bladder
  • failure to avoid or negligent treatment of vaginal tears
  • ruptured uterus
  • perineal and vaginal tears
  • fissures
  • negligent use of forceps
  • negligent use of ventouse
  • negligent stitching after a Caesarean section
  • negligent stitching after an episiotomy
  • failure to monitor and prevent infections
  • lack of consent – e.g failure to offer caesarean section
  • post natal infection
  • pre-eclampsia/eclampsia
  • injuries caused by vaginal birth after caesarean section (VBAC)

Investigating a birth injury claim

  • Medical records

Hodge Jones & Allen will obtain the medical records for the mother and baby. We will assess these in-house – we are fortunate in that many of our solicitors are also medically qualified.

  • Detailed statements

If we think the case has prospects of success, then we will take a detailed statement from you and any other witnesses who may have been present at the birth.

  • Instruct medical experts

We will then instruct experts to assess the claim. The types of experts required vary from case to case. Their reports will establish if there is a case that can be pursued.

What do I need to prove to win my case?

A birth that has not gone entirely to plan can be distressing – many mothers hope to have a perfect birth. But if things don’t go to plan it does not mean you will automatically be entitled to compensation.

To bring a successful claim for medical negligence you will need to satisfy two legal tests known as ‘breach of duty’ and ‘causation’.

  • Breach of Duty

To establish there has been a breach of duty you will need to show that the medical treatment you received fell below a reasonable standard. A ‘reasonable’ standard of treatment is considered to be what you would expect to receive from a reasonably competent medical professional in obstetrics/gynaecology/midwifery.

  • Causation

To establish causation you will need to show that the breach of duty directly caused you to suffer a physical or psychological injury that would not have otherwise happened.

What can I claim for birth injury?

Compensation for birth injury is made up of many different components.

General damages

These are awarded for the brain injury itself and the communication and mobility problems that may result from this. The maximum award for general damages according to the Judicial College guidelines is £337,700. This is awarded for severe brain injury or tetraplegia.

Special damages

These are the financial losses that flow from the injury such as adaptation of accommodation, care, physiotherapy, loss of earning etc. Please refer to the comprehensive list under the FAQs at the bottom of this page.

Funding birth injury claims

The majority of our birth injury cases are funded by Legal Aid. Other cases are funded by way of a conditional fee agreement, more commonly known as a No Win No Fee agreement. This means there is no financial risk to you.

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Case Study: No obstetrician present at high risk birth

A baby’s right shoulder became stuck during birth and he suffered shoulder dystocia, a right brachial plexus injury and subsequent Erb’s Palsy. As the delivery was high risk there should have been a obstetrician present at the birth. If an obstetrician had been called before he was delivered, our client may well have have been delivered safely. Despite undergoing five surgical operations he was left with a shorter right upper limb and with limitation to his movement.

Settlement: A without prejudice settlement of £550,000 was achieved.

Frequently asked questions

What types of birth injuries a baby can suffer?

  • Birth trauma
  • C-section Injuries
  • Caput Succedaneum
  • Cognitive Developmental Disabilities due to birth injuries
  • Epidural Birth Injuries
  • Fetal Lacerations
  • Folic Acid Deficiency Anaemia
  • Forceps Delivery Injury
  • Group B Strep Infection
  • Horner’s Syndrome
  • Hydrocephalus
  • Infant Bell’s Palsy
  • Infant Bleeding of the Brain
  • Infant Brain Ischemia
  • Infant Broken Bones
  • Infant Cephalohematoma
  • Infant Chorloamnionitis
  • Infant Cystic Fibrosis
  • Infant Hypoxic Ischemic Encephalopathy
  • Infant Meningitis
  • Infant Shoulder Dystocia
  • Infant Skull Fractures
  • Infant Spina Bifida
  • Infant Spinal Cord Damage
  • Infant Subconjunctival Hemorrage
  • Infant Torticollis
  • Intellectual Disabilities in Babies and Children
  • Kernicterus
  • Klumpke’s Palsy
  • Maternal Infections
  • Meconium Aspiration Syndrome
  • Neonatal Stroke
  • Persistent Pulmonary Hypertension of the Newborn
  • Placental Birth Injuries
  • Vacuum Extraction Injury
  • Wrongful Birth

The most common type of birth injury is Cerebral Palsy.

What can I claim under Special Damages?

  • Care from mother and father. This is sometimes called ‘gratuitous care’. The parents of a child with cerebral palsy are entitled to claim for the additional care that their child needs due to the Defendant’s negligence. This is often a very substantial sum because it includes both past and future care. We will assess each case individually as no two claimants are ever in the same situation. We will calculate the support that you child has received and will require in the future. This claim can be made in addition to a claim for professional carers (see below).
  • Professional care. Although the mother and father often want to be hands on carers for their child, the reality is that they will need assistance from paid carers. Depending on the level of disability, a team of carers will often be needed, perhaps working on a rota basis. Carers employed on a rota on day and night shifts are, of course, a very considerable cost. This part of the case is usually of the highest value. It is an area for dispute between the experts and need careful assessment by the lawyers instructed by the Claimant.
  • Accommodation. Children with cerebral palsy may be wheelchair dependent as a result of their condition. As a result they will need to claim compensation for new alternative accommodation or have adaptations made to their current home.
    A claim for new accommodation is often the first issue that needs to be addressed if negligence is admitted by the defendant. Often, we would seek an interim payment at an early stage to assist the family.
    Often we would seek an interim payment at an early stage to assist the family.
  • Physiotherapy. Children with cerebral palsy need intensive physiotherapy. This may be a need they have when they are young of the claim involve a lifelong requirement for physio. The claimant is entitled to claim for such costs in the private sector and does not have to rely on the limited physiotherapy which might be offered by the NHS.
  • Occupational therapy. Occupational therapists advise and assist claimants with everyday activities – such as toileting issues. They can develop strategies to assist with independence. This is usually claimed for on a private basis so that the family does not have to rely on the NHS.
  • Case manager. Many families find that they need help in managing the care of their child. They need the services of a Case Manager. They will be responsible for coordinating the carers, physiotherapists, occupational therapists and speech and language therapists. They can make all the necessary arrangements in terms of managing recruitment of staff, managing payroll and dealing with HR issues. They provide an incredibly useful service to both the parents and staff and act as a hub to circulate information.
  • Loss of earnings. Mild cerebral palsy may limit the job opportunities available to the Claimant. A more severe form of cerebral palsy may mean that they will never be able to work. In these cases the claimant will be entitled to claim for loss of earnings. In some cases the court will consider the occupations of the mother, father or siblings to establish what the claimant’s likely earnings may have been. Future wage losses can be claimed from 18 to retirement age, so this aspect of the claim can be substantial.
  • Aids and equipment. A claim can be made for mobility aids, such as wheelchairs or other specialist equipment. Again, it is recognised that the NHS provision is limited and the claimant is entitled to claim for aids and equipment costs on a private basis.
  • Private therapies. Many families find that the NHS is limited in what it can offer their child. This may be due to geographical issues or a lack of resources. If this is the case then the family can make a claim for the costs of such therapy in the private sector. This might be any kind of therapy – from orthopaedic surgery to sensory therapies.
  • Transport. Claimants will often need a specialist vehicle such a Volkswagen Caravanelle, a Mercedes Vito or other similar type of vehicle. The vehicle may well need to be adapted to the needs of the claimant. When submitting the compensation case, Hodge Jones & Allen will include a claim for the need to replace the vehicle on a regular basis over the claimant’s lifetime.

Can I bring a claim on behalf of my child?

Any injured person under 18 is considered to be a child. They are considered unable to have ‘capacity’ to conduct the claim themselves and deal directly with solicitors.

A claim involving a child is therefore conducted by a litigation friend, who acts on the child’s behalf. A litigation friend is often one of the child’s parents or a guardian, however anyone that the Court deems suitable can be a litigation friend, for example a relative or family friend, a solicitor or someone who has a lasting power of attorney.

Before a Court appoints someone as a litigation friend, it will assess whether that person meets certain criteria to ensure they can do the job properly. The Court must be satisfied that the person in question:

  • does not have any conflicting interests with the child’s interests
  • can fairly and competently conduct proceedings on the child’s behalf
  • agrees to pay any costs that the child may be ordered to pay

If you wish to apply to be a child’s litigation friend, you must file and serve a certificate of suitability. This is a form which asks you to formally consent to act as a litigation friend, and sets out your suitability for the role.

If the child reaches the age of 18 during the claim, the litigation friend’s authority to act on their behalf ceases. All the parties involved in the proceedings will need to be notified, and the former child will need to sign a statement that they intend to carry on with the proceedings.

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