Birth injury claims

To bring a birth injury claim, and any other medical negligence claim, there is a two part test that a claimant must be able to satisfy in order to succeed:

• That the treatment received was negligent. This requires that, at the time in question, no competent or reasonable medical practitioner in the relevant field of medicine would have given the care or treatment in question. This is known as the ‘breach of duty’ test. The bar to satisfy this test is high. Clinicians are not held to the ‘gold standard’ but instead to a standard that a responsible body of clinicians would deem acceptable.
• That the negligent treatment caused the injury and/or loss. This is known as the ‘causation test’. The standard required to prove that an act or omission has caused an injury is that the injury would, on the balance of probabilities (ie more likely than not), have been avoided had the negligence not occurred – that is, the injury would not have occurred in any event. In certain cases, where the experts cannot say to the requisite level of certainty what would have happened absent the negligence, another legal principle can be relied on to establish causation, known as ‘material contribution’. However, these cases are rare and require several factors to be met.

A medical negligence claim will only succeed if both of the above tests are satisfied.

In order to bring a claim for compensation as a result of a birth injury, you will therefore need to establish that the birthing process was managed so poorly by the treating clinicians that their care can be deemed negligent (ie is not supported by a responsible body of clinicians in the relevant field), and that this negligent care resulted in an injury being sustained to the baby and/or mother.

To establish whether the two part test can be met, medical experts will be asked to review the relevant medical records and to prepare a report providing their comments on the care in question. They will be asked to identify any substandard care and whether this is likely to have been the cause of the injury. Ensuring thorough investigations with medical experts to determine whether the breach of duty and causation tests are met is key to any medical negligence claim, but is particularly so in birth injury cases, as these involve complex medicine and require the input of experts in various different fields. These experts include obstetricians, midwives, neonatologists, paediatric neurologists and paediatric neuroradiologists to name a few. Through years of working in this area of medical negligence, we have developed a large network of experts in these fields, who have assisted us to successfully resolve a range of birth injury claims.

It is important to note that while the process at the outset of a birth injury claim will be similar for all claims, after the letter of claim has been sent (see below), the process can vary substantially depending on the evidence available, the stance of the defendant and the strategic decisions of the parties’ legal teams. The overview below is intended to be a guide only and does not reflect the course of all birth injury claims, which will be strategically managed on a case by case basis.

The initial steps taken in almost all birth injury claims will be as follows:

• medical records will be obtained for the child or mother, depending on the injuries involved. These contemporaneous records are very important for experts to consider when examining a case;
• witness statements will be obtained from key witnesses, depending on what is deemed appropriate and required. This information is important to the medical experts, especially when considering the impact of the injuries sustained;
• experts will be provided with all of the available evidence and will prepare reports commenting on issues relating to the breach of duty and causation tests;
• provided the experts agree that both the breach of duty and causation tests are met, a letter of claim will be prepared. It is required, under the Pre-Action Protocol for the Resolution of Clinical Disputes, that before court proceedings are commenced, a claimant sends a letter of claim to notify the defendant of their intention to bring a claim. This is to give the defendant the chance to make early admissions and is intended to reduce reliance on the court system and ensure claims are resolved as quickly as possible. Once a letter of claim is sent, a defendant has four months within which to provide their letter of response (although it is not unusual for a reasonable, short extension to be requested and granted).

What happens after a letter of response is received depends on whether the defendant admits they are at fault or, at the least, invites settlement negotiations, or defends their position and denies liability. Interestingly, a defendant does not need to admit liability to settle a claim.

Early admissions of liability

If a defendant admits liability or indicates they are open to settlement negotiations, evidence relating to the value of the claim will be collated (this is known as ‘quantum evidence’). This is so a schedule of loss can be produced, in preparation for settlement negotiations to begin. A schedule of loss sets out in detail the compensation the claimant is seeking and incorporates all of the quantum evidence.

Quantum evidence includes documentary evidence from the claimant relating to their past financial losses. It also includes expert evidence detailing the claimant’s condition and prognosis, and their associated needs, including any treatment, care, aids, equipment, adaptations etc they would benefit from in the future.

Once a schedule of loss has been prepared, this will be served on the defendant to open up settlement negotiations.

Sometimes, a defendant will ask for their own experts to examine the claimant and prepare a report commenting on the claimant’s condition and prognosis and associated needs. If such requests are reasonable, they should be agreed. Following this, the defendant will often (but not always) serve a counter schedule, where it sets out, in effect, a counter offer to the claimant’s schedule of loss, and makes its case for the level of compensation it deems appropriate for the claimant to receive.

Once all assessments have taken place and the schedules of loss and counter schedule have been served, the parties exchange settlement offers. Sometimes the parties reach a resolution through exchanging written settlement offers. At other times, especially if the offers being made are very far apart, the parties will need to resolve the claim at a settlement meeting, known as a ‘round table meeting’ or ‘joint settlement meeting’. During these meetings, offers will be exchanged orally by the claimant’s and defendant’s legal representatives, with each party taking it in turn to argue their case and make settlement offers until an agreed figure is reached.

When a claim is defended

If the defendant denies liability within the letter of response, the strength of the defendant’s arguments will be considered carefully with the claimant’s experts. Although they are experts in their field, the solicitors will also often seek the advice of barristers with specialist expertise in representing birth injury claimants in court proceedings, to help them assess how the evidence would be viewed by a judge and to obtain their opinion on the merits of the case. If, after these enquiries, prospects of succeeding in the claim are considered to remain sufficiently high, court proceedings will be commenced, following which a court timetable will begin.

The court timetable imposes specific deadlines which control when the parties take certain steps in the case, such as the exchange of their witness evidence, service of their expert reports, the requirement for experts to engage in joint discussions and to serve their quantum evidence (including the claimant’s schedule of loss and the defendant’s counter schedule). These steps lead all the way up to trial.

It is important to note that trials are very rare. Even if court proceedings are issued, the claim will often resolve without the need for a trial, as the parties will usually be engaging in concurrent settlement negotiations. If a case does reach trial, the judge will determine whether a defendant is liable for the claimant’s injuries and, if so, what level of compensation should be paid to the claimant. Sometimes, in complex or high value birth injury cases, after proceedings are commenced the claim will be ‘split’ in two, so that the court timetable will first be directed to establishing whether the defendant is liable for the claimant’s injuries (ie whether the breach of duty and causation tests are met), and only once this issue has been resolved (and provided the judge finds in the claimant’s favour) will the parties be required to provide evidence relating to the value of the claim. These are known as ‘split trials’.

It would be virtually impossible to provide a comprehensive list of all situations in which a negligent failing in care, also known as ‘breach of duty’ can occur, resulting in a birth injury. Below is a non-exhaustive list of the issues our solicitors often consider when investigating birth injury claims:

• if a hospital’s protocols and procedures were followed properly;
• if the mother was admitted to an appropriate unit/hospital for the risk status of her pregnancy;
• the adequacy of monitoring of the baby’s heart rate during labour and how quickly any signs of fetal distress were acted upon;
• how any complications in labour were dealt with;
• if the medical team involved was sufficiently experienced and/or requested more senior help quickly enough;
• if any concern neonatally have been dealt with appropriately.

It is important to understand the basic principle for assessing damages in any negligence claim: this is that the defendant’s damages should, as best as possible, place the claimant back into the position they would have been in had the negligence not occurred. In medical negligence cases, and particularly with birth injury claims, there is a problem, as no amount of money can ever ‘make good’ the claimant’s loss. With financial compensation being the only remedy the courts can award, the law has had to adapt and this has permitted claimants in personal injury cases to claim a wide variety of damages to help them in their recovery and achieve the best quality of life they can in view of their injuries. In birth injury cases, where a child has been severely injured, damages will often total many millions of pounds.

Each component of the damages is known as a ‘head of loss’, which covers all manner of losses. Each claim will need to be considered on its own facts and the solicitor acting on the case will evaluate what heads of loss can be claimed. Solicitors will seek the advice of experts in various specialist fields to ensure that the claimant’s heads of loss are as comprehensive as possible, covering all future needs for the duration of the claimant’s life.

Potential heads of loss might include:

General damages: these are damages for the injury itself and are awarded with reference to cases that have been decided by the court.

Care and case management: such claims are made to cover the past care and case management provided as well as the anticipated future care and case management required to meet the injured person’s needs.

Accommodation: a claim can be made for the additional cost of any accommodation that is required as a result of the injured person’s disabilities.

Therapies: claims can be made for the past and future therapy needs of the injured individual, including for occupational therapy, physiotherapy and speech and language therapy.

Loss of earnings and pension loss: if an individual’s earning capacity has been affected by their disabilities then claims for loss of earnings and loss of pension may be made.

Travel and parking costs: a claim may be made for these if the need for such travel and parking arises from the disabilities suffered by the injured person. The cost of an appropriate vehicle may also be claimed if it is needed due to the disability.

Aids, equipment and assistive technology: claims may be made for any aids, equipment and forms of assistive technology that are needed to facilitate the injured person’s day to day living in the context of their disabilities.

Education costs: if there are educational costs or costs likely to be associated with an appeal relating to special educational needs, then these costs can be claimed.

Court of Protection and deputyship costs: if the injured person is likely to lack capacity in adulthood and requires a deputy, the costs associated with this can be claimed.

Heads of loss where the injury has resulted in death will be more limited. Many of the heads of loss above cannot be claimed. However, in some cases an award for bereavement damages can be claimed although the amount is limited and the eligibility criteria are strict. Under current law, only a surviving spouse or parents of a deceased child under the age of 18 can claim bereavement damages. Where there was dependence on the deceased, a claim for dependency might be possible.

It is important to note that each head of loss should be supported by appropriate evidence, whether in the form of documents, such as invoices and receipts, witness evidence or expert medical reports.

Our solicitors ensure that they leave no stone unturnd when investigating birth injury claims and, in particular, the needs of the claimant going forward, so that they are adequately compensated. The amount of time this takes will depend on the seriousness or the mother’s or baby’s injury and the complexity of the medicine involved.

It is also relevant that where the claimant is a child, or the claimant lacks capacity, the final settlement must be approved by the court. This provides a layer of protection to prevent a claim from being under settled. If a solicitor were to rush the process, they risk missing evidence that would strengthen the claimant’s arguments in respect of breach of duty and causation and failing to properly investigate the claimant’s future needs, both of which increase the risk that the claim is under-settled and the court refuses to approve the settlement.

Our solicitors aim to settle medical negligence claims within two years, and simple birth injury cases may resolve within this time. However, with serious birth injury claims, the case may take many years to resolve, sometimes up to five years or more because of the time the investigation takes and a need for a clear view on the claimant’s prognosis.

It is important to note that the defendant’s appetite for settlement is also a key factor in how long a claim takes to resolve.

You should contact solicitors as soon as you suspect a birth injury has occurred that may be the result of negligence. There is no good reason for delaying seeking legal advice, and this may put you at risk of missing the time limits for bringing a claim and mean that important information is forgotten.

Personal injury cases (which include birth injury medical negligence claims) have strict time limits for commencing court proceedings and these must be adhered to. The time allowed for bringing a claim is known as the ‘limitation period’. If a claimant does not settle their claim, issue court proceedings or agree an extension of time in advance of the limitation period expiring, their claim becomes time barred and may well fail.

Child

In birth injury cases where the claim is made on behalf of a child, the time limit for commencing court proceedings ends on the child’s 21st birthday.

However, if the child is unable to manage their own affairs, the limitation period does not start to run. If, after their 21st birthday, the child gains the capacity to manage their own affairs, they have three years from that date to bring court proceedings.

Mother

In birth injury cases where the claim is made on behalf of the mother, the time limit for commencing court proceedings is:

• three years from the date of the injury, or
• if later, three years from the date the mother first had information which might lead her to suspect she had sustained a birth injury due to negligence.

Please note, the latter test is not subjective and the court will not look at what the mother actually believed about the nature of her injury but what a reasonable person in her circumstances should have believed. Once evidence exists that a court deems should have led the mother to suspect that her injury had a negligent cause, the three years will start to run from the date the court considers the mother should have appreciated this information. It is therefore always safer to rely on the date of the injury if three years from this date has not passed.

As with a child, if the injury results in the mother being unable to manage her own affairs, the time limit does not apply. If the mother later gains capacity to manage her own affairs, she has three years from that date to bring court proceedings.

Fatal cases

In birth injury cases where the injury results in death, the claim must be brought within three years of the deceased’s death.

Once you instruct our solicitors on a claim, they will manage the progression of the case and ensure that the time limits are not missed.

In cases where the defendant has admitted liability, or appears very likely to, an interim payment of damages can be requested to help support the claimant while the parties reach an agreement on the value of the final settlement. The interim payment of damages is intended to ensure that the claimant gets support to help them recover or improve their quality of life as soon as possible.

It is important to note that the final compensation payment will take into account any interim payments that the claimant has already had, which will be deducted from the final settlement. Interim payments therefore help to spread the compensation out over a period of time and enable a claimant to meet costs as they arise.

Our solicitors will continually assess whether an interim payment of damages can be requested and will advise the claimant as soon as this appears possible. If the claimant (or their litigation friend, if they are a child or protected party) wishes to request one, our solicitors will manage the entire process. This involves working out what level of payment can be requested, arguing to the defendant for an interim payment and, if required, presenting the argument in court. Our birth injury claims solicitors have a strong track record of helping their clients achieve interim payment of damages that have been requested.

It is also important to mention that personal injury compensation, whether paid by way of a final settlement figure, or periodical payments, is tax free. Although the compensation may affect your eligibility for means-tested benefits, our solicitors are able to support claimants to arrange payments in a way that does not impact their existing benefits.

Any final settlement or interim payment that arises from a claim that is to be paid to a child or protected party needs to be approved by the court to ensure it is fair and adequate compensation.

The process involves a solicitor making an application to court. If it is simply an interim payment that needs approval, this is mostly decided without the need for a hearing. Where the application relates to a final settlement, it will be decided by way of a hearing (which often takes place remotely). At the hearing, the judge will hear evidence relating to the case, in particular the nature and extent of the child or protected party’s injuries, and details of the settlement agreed, to decide if it is a fair settlement.