Achieving full compensation where there has been a negligent contribution to birth-related or neonatal brain injury

Achieving full compensation where there has been a negligent contribution to birth-related or neonatal brain injury

Over the years, I have helped hundreds of families whose lives have been shattered by their baby suffering a brain injury at birth. With experience, I have learned to recognise mistakes in maternity care, and the types of injury that are caused by many common but unacceptable midwifery, obstetric and neonatal errors. The NHS and its advisors also recognise these mistakes and are bound by professional and legal expectations to accept and admit responsibility for these failings in care when they occur.

Why negligence isn’t enough

One of the challenges of my job is explaining to heartbroken parents that proving the mistake, legally known as the ‘breach of duty’ or ‘negligence’, is only one of the hurdles that we must overcome to succeed in a claim for compensation. There is a second, often contested and far more complex hurdle to jump, and that is proving what is known as ‘causation’. This legal framework is even more difficult for parents to deal with where they have already had an acknowledgement from the NHS that errors were made in their maternity care.

The importance of causation

Mother and baby are guided throughout childbirth towards a safe and happy outcome by medical and midwifery staff following accepted standards of practice. This includes monitoring of the maternal and fetal health, assessing and managing known or predicted risks, recognising and acting quickly when something happens which might harm the mother or baby, and providing a safe environment for the birth and postnatal care. This is achieved by safe systems and agreed processes, properly trained staff, good communication and multidisciplinary teamwork, appropriate use of technology and well-resourced hospitals and other maternity facilities. With so much going on, minor mistakes often happen, but most of the time the mistake is noticed and corrected quickly, and no harm is done.

In our clients’ cases, something much more serious has happened. Mistakes may have been caused or compounded by poor communication, such as lack of teamwork or supervision leaving a midwife unable or unwilling to call for obstetric help when a complication arises, an untrained or junior doctor may be left alone to deal with an emergency procedure without adequate training or support, essential equipment or resources may be lacking in an emergency, or guidelines for dealing with conditions or complications have not been followed. It is rarely one small error that causes the harm. More often it is a series of errors or missed opportunities to intervene, treat or avoid a potentially harmful situation which lead to the injury, usually by delaying the delivery of the baby beyond the point where their brain damage could have been avoided.

Having identified the negligent mistakes, it is our job to pinpoint the moment when the baby’s permanent brain injury occurred and prove that the injury was caused by the negligence or that it wouldn’t have happened if mother and baby had received correct care. In birth injury cases involving cerebral palsy this often involves us proving that correct treatment would have led to delivery of the baby before their brain was permanently damaged by lack of oxygen.

This is important because in most situations, the injured patient is only entitled by law to be compensated for injury that was caused by their healthcare provider’s negligence. If the negligent error did not cause the injury, the injured person will not be compensated for their injury and its effects. If the negligence caused only one aspect of their injury, they are entitled only to be compensated for that aspect. The law also says that it is the job of the injured person or ‘claimant’ to prove that the negligent care probably (not just possibly) caused the injury which is to be compensated.

Overlapping unavoidable and avoidable injury – what happens about causation?

If the law left it there many negligently brain-injured children would be left uncompensated for their devastating neurological disability. This is because, in many cases of cerebral palsy, the important maternity mistake was in failing to recognise that the unborn baby was suffering from a partial reduction in their oxygen supply. Unlike the ‘acute profound’ (short but severe) period of oxygen deprivation (hypoxia or asphyxia) which causes permanent brain damage to the distressed, unborn baby in a matter of minutes leading quickly to death, a partial reduction in oxygen causes brain damage over a longer period of time. For this reason, it is often known as ‘chronic partial’ hypoxia. Chronic partial hypoxia causes permanent brain injury but over a longer period of time. However, if the signs of chronic partial hypoxia are ignored and the baby is not delivered quickly, within a few hours, the baby will then often suffer ‘acute profound’ oxygen starvation, causing further brain injury, and unless they are delivered immediately and resuscitated, this will quickly lead to death.

Where the child survives and has cerebral palsy following a negligent delay in delivery after suffering chronic partial and then acute profound hypoxia, it can often be impossible for even specialist medical experts to separate out which aspects of the child’s injury were caused solely by the negligent delay. Even where maternity negligence is admitted, the compensation claim is often disputed by the NHS on the basis that the child had already suffered some brain damage, affecting their function and abilities, from the chronic partial oxygen loss before the maternity mistake occurred and this would have continued until the time when delivery should have taken place.

100% compensation where there has been a material contribution to injury which is indivisible

The law recognises that in cases such as this where negligent treatment clearly caused significant damage but it is impossible to separate out the avoidable injury from the unavoidable harm, the injured child must be entitled to compensation. In these highly complex circumstances, as long as we can prove that the negligence made a ‘material’ contribution to our clients’ injuries we are often able to recover 100% compensation.

These cases are extremely complex and must be handled by specialist solicitors with proven experience of successful cerebral palsy birth trauma claims to ensure that the severely disabled child recovers maximum compensation in a way that properly provides for their immediate and lifelong needs.

We have helped countless families recover and retain full compensation for their severely brain damaged child drawing on our extensive knowledge of the law, correct standards of care, the complex medical issues, and best methods of funding these challenging but important claims.

Many of our clients’ families kindly allow us to share their stories on our website to help others in a similar situation see what can be achieved with specialist handling of their claim. Most recently, my team achieved a 100% liability judgment for a child with severe dyskinetic cerebral palsy, cortical blindness, epilepsy and significant learning difficulties whose injuries were caused by the combined effects of unavoidable and avoidable chronic partial and acute hypoxia during the midwife’s negligent handling of her mother’s ‘water birth’. The NHS was forced to accept that even though they disagreed with our experts’ projected timings of when delivery should have taken place, the significant brain injury that was caused by their negligent delay could not be separated out from the child’s overall injury. They were therefore liable to compensate our client for her full injury and disability and its effects. Meanwhile, an interim payment of £250,000 will be used to meet her urgent needs for care, case management and adapted accommodation.

If you are caring for a child or young adult with cerebral palsy and would like to find out more about how we can help you make a claim, contact us by email on cerebralpalsy@boyesturner.com.

I try to assist lawyers by explaining, in clear and comprehensible terms, what the relevant issues are and where the strengths and weaknesses of the case lie.

DR PETER DEAR

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