Bringing a birth injury claim: proving causation

Posted: 27/05/2021

The first article in this series, which can be found here, looked at the first legal test that must be established to bring a birth injury clinical negligence claim: namely, breach of duty or negligence.

In addition to establishing negligence, it is also necessary to establish causation.

In essence, it must be proved that, but for the negligent treatment, the injury would have been avoided - that is, the injury would not have occurred in any event. Recent case law has made it clear that causation can also be established if the negligent treatment made a material contribution to the injury sustained (that is if several factors may have contributed to the injury but medical science does not allow apportionment of the injury between the different causes, such that the injury is indivisible).

By way of examples, causation has been established in birth injury cases where:

• expedited delivery, by a certain time, would have meant that the baby would not have suffered damaging hypoxia (lack of oxygen) due to umbilical cord entrapment or a problem with the placenta;
• uterine rupture would have been avoided with a caesarean section after a previous operative delivery or where the labour had not been induced;
• asphyxia and injury would have been limited had the induction of the delivery been stopped at an earlier stage;
• injury to the baby would not have happened had the correct techniques been used during a complex vaginal or caesarean section delivery; and
• injury would have been avoided with the avoidance or earlier treatment of infection.

Each case needs to be considered on its own facts and causation will need to be supported by independent expert evidence. To pursue a claim, in addition to establishing causation, it is also necessary to establish breach of duty, as is covered in the first article in this series. The question of how birth injury claims can be funded is covered in a third article.

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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