Making A Birth Injury Claim – A Guide

The last thing you want to be thinking about as a prospective new parent is the possibility of an injury to mother or baby. Whilst the performance of maternity services is generally good, instances of negligent care do happen. If you or your baby were harmed during childbirth due to substandard medical care, you could make a birth injury claim. In this guide, we aim to answer potential questions about these claims.

We begin by examining what birth injuries are and how medical negligence can happen. Next, we look at whether you could claim compensation on behalf of a child. Then, we look at time limits applicable to birth injury compensation claims. We explore the type of evidence that can help prove birth injury claims and discuss how to calculate compensation. The final part of our guide looks at how to get help from an experienced No Win No Fee solicitor from our panel.

Please contact our team for an assessment of your case.

A woman prepares to give birth in a hospital bed. A man and midwife are in attendance.

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What Is A Birth Injury Claim?

Birth injury claims are a way to claim compensation for harm caused by substandard medical care during childbirth. In brief, medical negligence is when a patient suffers avoidable harm caused by a medical professional breaching their duty of care.

All medical professionals have a duty of care to patients. This means that they must provide patients with the correct medical treatment and meet minimum professional standards of care. If the care they provide fails to meet professional standards and a patient suffers avoidable harm, the patient may be able to claim compensation.

Medical negligence includes three elements:

  1. Medical staff owed you a duty of care. For instance, you were a patient in a maternity ward.
  2. Medical staff breached this duty of care. E.g., a midwife may have ignored the symptoms of internal bleeding, and this fell below the accepted minimum standard of care.
  3. You suffered avoidable and unnecessary harm caused by the continued loss of blood.

Please contact our team if you suffered a traumatic birth injury due to negligent medical care.

How Could Birth Injuries Be Caused By Negligence?

There are a variety of different types of birth injuries which could affect either the mother or the baby. In some instances, both could even suffer a traumatic birth injury.

Injuries To The Baby

A traumatic birth could cause a range of different forms of harm to a baby. These may include:

  • Cerebral palsy. This is caused by a lack of oxygen to the brain during delivery. For instance, if proper monitoring is not carried out during delivery medical staff may fail to spot foetal distress.
  • Erb’s palsy. This is a paralysis of the arm. It may be temporary or permanent. It could be caused by the negligent application of excessive force during childbirth.
  • A broken bone birth injury could be caused by the baby getting stuck in the birth canal during delivery.
  • Nerve damage may be caused by the negligent use of forceps during delivery.

Injuries To The Mother

Birth injuries can affect mothers as well as babies. These could happen before, during or after labour. Examples of birth injuries to mothers which could be caused by negligence could include:

  • The failure to diagnose pre-eclampsia. This condition reduces blood flow to the placenta. Symptoms could include protein in the urine and high blood pressure. It can cause complications such as a stroke or convulsions. The baby may also have to be delivered early.
  • Tears. Whilst tears or lacerations are a common type of injury to mothers during childbirth. However, they could be caused by medical negligence. For instance, if an episiotomy should have been carried out but wasn’t and the mother was injured, a claim could be made. Serious tears can cause chronic and lifelong problems for mothers. These include bowel and bladder problems.

For more information on how medical negligence could lead to a birth injury, please contact our team.

A woman is giving birth in a hospital bed.

Can I Claim For A Birth Injury On Behalf Of My Child?

You could claim compensation on behalf of your child if they were harmed due to poor medical care.  Those under the age of eighteen are unable to take legal action on their own behalf.

To make a birth injury claim on their behalf, you will need to be appointed as a litigation friend. This is a suitable adult who is appointed by the courts. They act in the best interests of the child during the claims process. A parent, guardian or even solicitor could apply to act in this capacity.

Please contact an advisor to find out more about when you could claim on behalf of your child and for an explanation of what a litigation friend is.

What Is The Time Limit To Make A Birth Injury Claim?

The time limit for a birth injury will be different depending if the claim is for a mother or the child. A mother has 3 years to start a claim after being injured or 3 years from realising that negligence has occurred. This comes from the Limitation Act 1980 and is the standard timeframe to make a medical negligence claim.

The reason the time limit is different for children is that minors cannot bring their own claim. As such, the time limit does not start to run until they get to this age, at which point they have 3 years, so until they are 21.

A litigation friend can begin a claim before a child turns 18, as discussed in the section above.

It should be noted that if someone lacks the mental capacity to bring their claim, there is no time limit unless they recover capacity. Should capacity be recovered, the 3 years would start at that point. Similarly, a litigation friend can make a claim on their behalf.

Please get in touch with our team for more advice on what time limit could apply to your claim.

A newborn baby may have suffered a birth injury.

What Evidence Could Help Me Claim For Birth Injury Negligence?

You will need to provide evidence to prove that you or your baby have been harmed and that birth injury negligence occurred. Examples of evidence that you could provide may include:

  • A copy of original medical records. These could show what birth trauma you or your baby suffered. They can also help to establish how the care you or your baby received was not at the correct standard.
  • A report from an independent medical assessment detailing what birth injuries were sustained and how serious these were.
  • Statements (or contact information) of anyone who witnessed the negligent medical care or the impact this has had on you.

In addition, if you intend to claim for financial losses (as discussed later in this guide), you will need to provide evidence of these losses. This may include bank statements and invoices.

Please contact our team to find out more about proving medical negligence.

How Much Birth Injury Compensation Could I Receive?

How much compensation you may receive will depend on several factors. The amount of compensation you may receive in a successful birth injury claim will depend on things, including damages for the pain and suffering caused, as well as for financial losses. The terms used for these are general damages (for harm suffered) and special damages (for financial losses).

Guidelines published by the Judicial College (JC) may be used during the calculation of general damages. In addition to your medical records and the results of an independent medical assessment, solicitors may use these guidelines.

The following table uses figures from the JC guidelines. The first row illustrates potential awards for pain and suffering, in addition to special damages. This figure does not come from the JC.

HarmSeverityDamages
Multiple and serious birth injuries. Inclusive of special damages.Serious up to severe.Up to £25,000,000+ inclusive of special damages.
Harm caused by brain damageVery severe - A£344,150 to £493,000
Harm caused by brain damageModerately severe - B£267,340 to £344,150
Reproductive system (female)Infertility with sexual dysfunction and depression - A£140,210 to £207,260
Reproductive system (female)Sexual dysfunction in a woman who either would not have had children or who already has them - B£52,490 to £124,620
Reproductive system (female)Infertility. No sexual dysfunction or aggravating factors - C£68,440 to £87,070
Reproductive system (female)Infertility. No medical complications - D£21,920 to £44,840
Neck injurySevere - A (i)In the region of £181,020.
Shoulder injurySevere - A£23,430 to £58,610
Shoulder injurySerious - B£15,580 to £23,430

Next, we will explore financial losses that could be included in your claim.

Can I Claim For Financial Losses Caused By Birth Injuries?

Having examined birth injury compensation for pain and suffering, we now look at whether you could claim for financial losses. Compensation for financial losses is called special damages. These damages could compensate for a wide range of things.

For example, special damages may compensate for:

  • The cost of medical treatment. You (or your child) may require medical care, hospital treatment or long-term medication.
  • Care costs. You (or your child) may require specialist care in the home or in a care facility.
  • Lost income and earnings. You may have had to take time off work, either to recover from your injuries or care for your child, or you child’s future employment options may be impacted by their injuries.

In addition, your home may need to be adapted to cope with any long-term disabilities or care requirements.

These are some examples used to illustrate potential costs you could claim for. Please tell our advisor if you encounter other types of expenses related to your or your child’s birth injury. Please contact a member of our team for a full assessment of your birth injury compensation claim.

How Long Does A Birth Injury Claim Take?

At this point, you may be wondering how long it takes to sue the NHS or a private healthcare company. Each birth injury claim is unique. For instance, the type of injury you suffered and the impact it has had will be individual to you. This means that whilst the claims process will be broadly the same, how long a claim takes could differ.

There are several factors which could impact how long birth injury compensation claims can take. These include:

  • The severity and complexity of the injury or injuries. The more severe birth injuries are or, the more complex they are, the longer a claim could take. Severe birth injuries may require you to undergo an independent medical assessment. This is so that your medical negligence solicitor has a complete picture of how you have been harmed.
  • Whether the defendant admits liability or not, a case could be settled quicker if the medical professionals in question admit liability quickly.
  • How long it takes to collect relevant evidence. Medical negligence solicitors will want to ensure that you have all the necessary evidence to support your claim. This can help to ensure you get a good outcome.
  • Whether your medical negligence claim needs to go to court, cases which go to court may take longer to settle.

Please contact our team for a thorough assessment of your birth injury claim.

Can I Claim Birth Injury Compensation On A No Win No Fee Basis?

One of our panel of birth injury solicitors could help you to make a birth injury claim on a No Win No Fee basis. They have years of dedicated experience dealing with these types of claims and can assist you by:

  • Collecting the evidence to support your claim
  • Simplifying legal and medical terms or jargon for you
  • Negotiating with the defendant
  • Progressing your case in a timely and efficient manner
  • Arranging for independent medical evidence
  • Filling in paperwork and handling court documents for you

If your case is accepted, you may be offered a Conditional Fee Agreement (CFA), which is a type of No Win No Fee Agreement. Under a CFA, a solicitor will not require you to pay upfront for their services. Nor will they require payment for their ongoing work, and if your case is unsuccessful, you will not need to pay their fees.

A success fee will be paid to your solicitor if your case wins. This is a percentage of the compensation, and the size of the percentage is legally capped. As such, you receive the majority of any compensation.

Please contact our team to find out more about how a No Win No Fee solicitor could help you.

  • Call 020 3870 4868 to speak to an advisor.
  • Talk to one of our team via the live support below.
  • Or, send a message using our claim-online form.

A birth injury solicitor works on a birth injury claim.

Learn More About Making A Medical Negligence Claim

You can find additional, helpful resources in this last part of our guide. We have included resources from our site and trusted external sources.

Additional external resources.

Thank you for reading our guide on how to make a birth injury claim. Please contact our team for more information on how one of our panel of specialist solicitors could help you.