Child Birth Injury Compensation Claims: For Injury to Mother or Baby
Most expectant mothers fear labour to some degree. The impact modern medicine has had on reducing mother and infant mortality rates across the developed world make it easy to forget just how dangerous childbirth is, and how quickly problems can develop. Thanks to advances in maternity healthcare over the last 100 or so years in most cases, both mother and child emerge from childbirth relatively unscathed.
Some women will require a little more attention following birth such as stitches following an episiotomy or tear. Unfortunately however, in a small number of cases, a new mother suffers severe trauma in childbirth and is left with lifelong, debilitating injuries. Mothers can be injured in a number of ways, especially if they are birthing a large baby, suffering from a condition such as pre-eclampsia or the baby becomes distressed and has to be delivered very quickly. Examples of injuries suffered include: abnormal uterine bleeding, broken bones or bruising, peripartum haemorrhage, fissures, infection, eclampsia, uterine hyper-stimulation, vaginal tears or lacerations, or wrongful death of the mother.
“Birth injuries can have devastating physical and mental effects on a woman’s life long after she gives birth. Search for the term ‘birth injuries’ on Mumsnet and you will see multiple threads of women describing their pain, and tragedies; some tell how they can't bear to be touched, let alone have sex, a year and more on from the birth. Yet more tell of how they wouldn't – couldn't – contemplate a second child, so terrible was the physical fallout from the first.”
Being left incontinent is one such nightmare a minority of women face after giving birth. This can be the result of suffering a fissure, or hole, between the rectal and vaginal passages, or nerve damage, meaning the brain can no longer register when the bladder and/or bowels need emptying.
It is however the emotional damage that can do the most harm to both mother and child. Some women who have experienced a traumatic birth can suffer postpartum post-traumatic stress disorder (PTSD). Symptoms include hyper-vigilance, intrusive memories, flashbacks, severe emotional distress, irritability, trouble sleeping and nightmares.
Often PTSD is confused with post-natal depression leading to a prescription of medication which does little or nothing to alleviate the symptoms. Or worse, the victim is ignored and told to ‘move on’ with their life and enjoy their baby.
How can injury to the mother be avoided?
The National Institute for Health and Care Excellence have produced guideline recommendations for healthcare professionals involved in the intrapartum care of women and babies. These guidelines highlight the standard of care a woman should receive before, during and after she gives birth. This article underlines some of the important recommendations which an expectant mother should ensure her healthcare professional follows when she is to give birth. It is when healthcare professionals fail to deliver this standard of care that expectant mothers are put at risk.
Before giving birth
Women have a choice of giving birth at home, in a midwifery-led unit or in an obstetrics unit. If you are healthy and considered to be "low risk" you should be offered a choice of birth setting. For women with some medical conditions, it is safest to give birth in hospital because specialists are available if you need extra help during labour.
When making the decision where to give birth an expectant mother should be advised by healthcare professionals of the risks and benefits involved in giving birth in each different setting. For example the NHS “Your baby and pregnancy” guide, https://www.nhs.uk/conditions/pregnancy-and-baby/where-can-i-give-birth/?, lists the following advantages of a home birth:
- being in familiar surroundings where you may feel more relaxed and able to cope
- you don't have to interrupt your labour to go into hospital
- you will not need to leave your other children, if you have any
- you will not have to be separated from your partner after the birth
- you are more likely to be looked after by a midwife you have got to know during your pregnancy
- you are less likely to have intervention such as forceps or ventouse than women giving birth in hospital
The guide also identifies the following considerations:
- You may need to transfer to a hospital if there are complications
- For women having their first baby, home birth slightly increases the risk of a poor outcome for the baby.
- Epidurals are not available at home.
- Your doctor or midwife may recommend that you give birth in hospital. For example if you are expecting twins or if your baby is breech (lying feet first).
Choosing where to give birth is an important decision which has implications for the health of the mother (not to mention the baby). Some critics of the NHS believe that women are being steered towards home births as these provide a cheaper alternative requiring fewer midwives. It is vital that new mothers are supported by their healthcare professionals to make an informed decision about where to give birth in order to reduce the risk of birth injuries.
During birth: Labour
If a woman chooses to give birth at home or in a midwife-led unit they may need to be transferred to an obstetrics unit if the labour is not progressing as well as it should be or they require extra help. It is, of course, critical that healthcare professionals closely monitor a woman’s labour and identify as soon as possible where intervention required as delay in transfer to a hospital can have a negative impact on a mother’s health. Healthcare professionals should be alert to warning signs by monitoring amongst other thing’s:
- Heart rate
- Blood pressure;
- Vaginal blood loss;
Instrumental vaginal birth
The NHS Maternity Services Monthly Statistics for May 2017 record that 11% of the births that had a recorded delivery method had instrumental assistance.
NICE recommends that healthcare professionals think about offering instrumental birth if there is concern about baby's wellbeing or there is a prolonged second stage of labour. The choice of instrument depends on a balance of clinical circumstance and practitioner experience
The main instruments used to assist with delivery are forceps (there are over 700 different kinds) or ventouse ( a vacuum device). It is very important that the operator should choose the instrument most appropriate to the clinical circumstances and their level of skill.
If a healthcare professional selects the wrong instrument or uses an instrument incorrectly this greatly increases the risk of injury to a mother.
Forceps and vacuum extraction are associated with different benefits and risks. Guidelines published by the Royal College of Obstetricians and Gynaecologists , note that failed delivery with the selected instrument is more likely with vacuum extraction.
Approximately one in four mothers will have a caesarean section. C sections can be planned or may become necessary as labour progresses. NICE recommends that unplanned C Sections be categorised and actioned appropriately as below. Failure to do so puts the mother at risk of birth injuries.
1. immediate threat to the life of the woman or foetus. These procedures should be carried out as soon as possible after the decision is made.
2. maternal or foetal compromise which is not immediately life-threatening. These procedures should be carried out as soon as possible after the decision is made and in any case within 75 minutes of the decision being made.
3. no maternal or foetal compromise but needs early delivery; and
4. delivery timed to suit woman or staff.
Blood loss is another potentially serious complication of Caesarean sections and pregnant women should be offered a haemoglobin assessment before Caesarean section to identify those who have anaemia. Pregnant women having Caesarean sections for antepartum haemorrhage, abruption, uterine rupture and placenta praevia are at increased risk of blood loss of more than 1000 ml and should have Caesarean section carried out at a maternity unit with on-site blood transfusion services
It must be emphasised that in most cases where medical intervention is used during labour, it is to save the infant and/or mother from injury or death and usually there are no ongoing complications for either patient. However, in a very small number of cases, medical intervention and treatment is given unnecessarily or negligently. In these cases, a claim for compensation can be brought.
The importance of care following childbirth
The care a woman receives in the aftermath of birth is also extremely important. NICE recommends the following observations are made of a woman after she has given birth:
- Record her temperature, pulse and blood pressure.
- Uterine contraction and lochia (vaginal discharge after giving birth).
- Examine the placenta and membranes: assess their condition, structure, cord vessels and completeness. Transfer the woman (with her baby) to obstetric‑led care if the placenta is incomplete.
- Early assessment of the woman's emotional and psychological condition in response to labour and birth.
- Successful voiding of the bladder. Assess whether to transfer the woman (with her baby) to obstetric‑led care after 6 hours if her bladder is palpable and she is unable to pass urine
Professor Michael Keighley, a colorectal surgeon previously based at Queen Elizabeth Hospital in Birmingham is of the opinion that birthing injuries to mothers are being missed due to a failing in aftercare.
‘”So many of these injuries are missed, most of us believe the real number is more like 10 percent of all first-time mothers,’ As well as problems with incontinence, there may be a ‘multitude of psychological effects including anxiety depression and post-traumatic stress disorder (PTSD)’, he says. ‘It’s a huge problem, it ruins women’s lives and yet no one is talking about it.‘ Gynaecologists and midwives almost never see these mothers after delivery. And women are often too ashamed to seek help because they feel dirty. It is a completely unspoken taboo.‘ Much, much more must be done, both to prevent it and to identify it when it occurs”
The risk of tears following childbirth
Many women will tear to some degree during childbirth, and the numbers sustaining this devastating, life-changing damage are, alarmingly, rising.
The average age at which women give birth in the UK has been rising for decades, while babies have been getting bigger — both key risk factors for severe tears. The risk of damage from natural delivery increases with age as muscles and ligaments get less stretchy.
For every year over the age of 18, the chance of an anal sphincter tear goes up by 6 percent, according to research published in the American Journal of Obstetric Gynaecology last year.And instrumental delivery — using ventouse or forceps — increases that risk further.
The rates for severe tears have tripled in the ten years to 2012, according to the Royal College of Gynaecologists and Obstetricians (RCOG). They suggest six in every 100 women giving birth for the first time in the UK will experience a severe tear (the rate among women who’ve already had children is lower). Third or fourth-degree tears can sometimes require hundreds of stitches and be so painful that the only way for the victim to urinate without pain is to do so in the bath
NICE guidelines recommend that all relevant healthcare professionals be trained in perineal/genital assessment and ensure that they maintain these skills. Trauma to the genital and perineal should be identified soon as possible after birth and categorised according to severity. Repair of the perineum should take place as soon as possible to minimise the risk of infection and blood loss.
Making a compensation claim for injury and trauma following childbirth
The process involves:
Initial consultation – When you first meet with our birth injury claims team, we will discuss the basic details of your case, including establishing what mistakes you believe were made during the birth, who you believe made those mistakes and what the consequences have been for you and/or your child.
Accessing your medical records – We will contact the relevant healthcare provider on your behalf to get copies of your medical records and/or those for your child. This can take around 2 months.
Preparing your case – We will review your medical records with you and compare them to your memory of what occurred during the birth. We will also usually bring in various independent medical experts to consult on the case and help us clearly establish the facts.
Letter of notification – It is normal at this stage to contact the healthcare provider you hold responsible for medical negligence, notifying them that you intend to bring a claim.
Letter of claim – We will follow up the letter of notification with a more detailed ‘letter of claim’. This will lay out the specifics of your claim for the defendant, including exactly what you allege went wrong during the birth, why you believe this constitutes clinical negligence, what negative affect this has had on you and/or your child and how much compensation you are seeking.
Defendant’s response – Ordinarily, the healthcare provider should formally respond to your letter of claim in writing within 4 months of receiving it. In their response, they should explain whether they accept either full or partial liability for the birth injury, or if they reject your claim. If they reject you claim, they should explain why. If they accept some degree of liability, the defendant will commonly make an offer of compensation to settle the matter.
Reviewing defendant’s response – We will discuss the defendant’s response with you and advise you on whether we think their response is fair and what further action you can take if you are not satisfied with it.
Issuing court proceedings – If you wish to take further action, we can initiate court proceedings, including drafting and submitting ‘Particulars of Claim’ to the relevant local court setting out your case. The defendant will normally have 28 days to reply. The court will then set a timetable for the case, which will include assigning a date for a court hearing. It is worth bearing in mind that your court hearing date may be as much as 18 months from the time court proceedings are started and we can continue to explore other options, such as negotiation and mediation while waiting for a court date.
Alternative Dispute Resolution (ADR) – We will usually make every effort to negotiate a pre-trial settlement while waiting for your court date. This can save you a significant amount of time and money, while also allowing you to avoid the need to attend a court hearing. The majority of clinical negligence cases are settled without trial and our expertise and experience means we can generally achieve a favourable result, even in the most contentious birth injury claims cases.
Court hearing – If we cannot agree a suitable settlement before your court date, we will ensure you have the best possible representation during your hearing. Medical negligence hearings are heard by a judge (with no jury) and both sides will have the opportunity to present their arguments with the final outcome being up to the judge. Our extensive experience in medical negligence hearings means we know what a judge is looking for in order to make a decision in your favour and can help you out together a case with the strongest chance of success.
No win, no fee birth injury compensation claims
We represent many of our birth injury clients on a no win, no fee basis, meaning our expert legal advice and representation is available to the widest range of people possible.
This option allows you to pay nothing upfront, with our fee being based on a percentage of any settlement we win for you. As a result, you should never be left out of pocket and this also gives us an additional incentive to achieve the best possible result for you.
During your initial consultation with our clinical negligence team we will discuss your situation and whether a no win, no fee arrangement will be appropriate for you. We can also take you through other funding options, allowing you complete control over how we proceed.
Our expertise in birth injury claims
At IBB Claims, our personal injury team, led by Malcolm Underhill, has the expertise and knowledge to advise and represent you if you wish to make a claim for maternal birth injury or any other medical negligence incident.
We have decades of experience pursuing a wide range of birth injury claims affecting both mothers and children. Our team has a strong track history of success, including in even the most complex cases, achieving multi-million-pound settlements for our clients under challenging circumstances.
Malcolm Underhill is a recognised leader in the field of personal injury law and clinical negligence, being a Fellow of the Association of Personal Injury Lawyers (APIL) and an accredited Brain Injury Specialist.
Get in touch with our birth injury claims solicitors
To talk about how we might be able to help, please phone us on 0333 123 9099, email us at firstname.lastname@example.org or fill in our contact form. Any discussions you have with us will be in the strictest of confidence.