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Bringing a birth injury claim: establishing negligence

Posted: 26/05/2021

Most deliveries in the UK result in the birth of a healthy child or children. However, sometimes things go wrong and the consequences can be devastating for the children concerned and their families. If a severe injury is suffered by a child, this may result in them needing lifelong care, support and equipment amongst other requirements, which all come with associated costs.

If a birth injury claim is contemplated, it is important to understand the legal tests involved (namely establishing breach of duty/negligence and causation) and how these can be proved; how such claims can be funded; and what damages can be recovered in the event of a successful claim. These issues will be addressed in a series of four articles. This article, the first in the series, covers the test of breach of duty.

Establishing breach of duty in a birth injury clinical negligence claim involves proving that no reasonable and responsible clinician in the relevant field would have acted in the way that the treating clinician did, a test sometimes known as the Bolam test. This entails considering the nature of the treatment provided (or not provided) and seeking the opinions of experts in the relevant fields to provide views for the court on the required standards of care. The Bolam test is phrased in such a way that even if only a minority of clinicians in the relevant field would have acted in the way that the treating clinician did, but they represent a reasonable and responsible minority, then this can be a defence to a claim.

By way of examples, breach of duty has been established in birth injury cases where the following has occurred:

  • a failure to expedite delivery when the baby was exhibiting signs of distress during delivery (potentially due to umbilical cord entrapment or a problem with the placenta limiting the oxygen supply to the baby);
  • inducing labour when the mother had previously undergone a caesarean section, with the consequent risk of uterine rupture;
  • continuing to induce labour when the baby was exhibiting signs of distress;
  • injuring the baby during a complex vaginal or caesarean section delivery;
  • failing to avoid or sufficiently treat infection; and
  • failing to use the correct techniques when shoulder dystocia arose.

Each case needs to be considered on its own facts and the allegations of negligence will need to be supported by independent expert evidence. To pursue a claim, in addition to establishing breach of duty, it also necessary to establish causation. Causation is considered in the second article in this series.

If you wish to discuss any of the issues mentioned in this article, please do not hesitate to contact the specialist birth injury team for an initial discussion about your options.  

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