I had a traumatic birth – can I make a claim against my healthcare provider?
If you’ve experienced a traumatic birth that you think might have been the result of inadequate care, you might want to consider taking legal action. Anna Vroobel and Saydie Farrell, both specialist solicitors from Irwin Mitchell LLP, one of our Trusted Legal Partners, explain how it all works in England and Wales
What is medical negligence?
Medical negligence occurs when healthcare professionals make errors that cause physical or psychological injury, or worsen pre-existing conditions. This could include failing to diagnose a condition correctly, providing incorrect treatment or making mistakes during surgery.
Legally, you are entitled to a reasonable standard of care from your medical professionals. For a medical negligence claim to be successful, you have to prove two things:
That the care provided to you has been substandard. Unfortunately, we don’t have the right to excellent or gold standard healthcare, but rather a “reasonable standard,” which is decided by independent medical experts.
That the substandard care has “more likely than not” been the cause of your injury or made your condition worse.
What are some examples of medical negligence that can happen during childbirth?
Not gaining the mother’s informed consent for a particular mode of birth – for example, not explaining the risks and benefits of giving birth vaginally or via caesarean section, or using a method such as forceps without the mother’s explicit consent. This can lead to physical and psychological trauma for mother and baby.
Not correctly monitoring the mother’s or baby’s condition and vital signs during labour. A delay in recognising that an immediate intervention is necessary can lead to injury to the mother or serious complications for the baby, such as a brain injury.
Using Ventouse (vacuum or suction cup) or forceps incorrectly, which can cause injuries such as skull fractures, intracranial haemorrhage, or nerve damage to the baby, or injury to the mother.
Failing to immediately identify and repair a perineal tear. Perineal tears are common during childbirth, but if not promptly identified and repaired can lead to severe pain, infection and incontinence.
Are there any time limits for bringing a claim for medical negligence?
You have three years from the date of your injury, or from the time you became aware of any substandard treatment or injury, to bring a claim. An exception is if you lacked mental capacity at any time following the negligence. If you think that it might apply in your case then ask for advice from a solicitor who specialises in medical negligence.
If your child has been injured as a result of medical negligence during your pregnancy, the birth or in their childhood, a claim must usually be made before their 21st birthday. If your child is likely to lack capacity to make their own decisions when they turn 18, there may be no time limit for bringing a medical negligence claim on their behalf. If you think that it might apply in your child’s case then ask for advice from a solicitor who specialises in medical negligence.
Can I make a complaint about the circumstances of my birth while also bringing a medical negligence claim?
Yes, the rules that govern NHS complaints allow the two processes to run at the same time.
How do I make a medical negligence claim?
If you believe that you have suffered birth trauma as a result of substandard medical care, the first step is to contact a solicitor who specialises in medical negligence.
If the solicitor is able to proceed with a claim, they will investigate your case thoroughly by obtaining copies of relevant medical records, witness statements, and any other relevant documents from the healthcare provider (usually a hospital trust or board). Once the solicitor has this information, they will instruct one or more independent medical experts. They will review the information and prepare a report giving their opinion on the standard of care you received and whether your injury could have been avoided.
If the experts are confident that you have grounds to pursue a claim, your solicitor will write to the healthcare provider setting out the allegations about the care that you should have received.
The vast majority of cases are settled before they go to court. However, if your case is one of the few to be decided by a judge, your solicitor will support you through that process.
If a medical negligence claim is successful, you will be entitled to compensation for your injury and losses resulting from the negligence.
How much compensation will I or my child be entitled to?
The amount of compensation depends on several factors including the severity of the injury, its impact on your life and any additional care and assistance needed as a result of your injuries. For more serious and long-term injuries, you can claim compensation for the cost of equipment and home adaptations.
If you are unable to return to work as a result of your injuries, or only able to return to work in a reduced capacity, compensation can include a claim for your lost earnings to date and loss of future earnings.
The compensation claim can also include the costs of both past and ongoing medical treatment and therapy that you need as a result of your injury.
If your child has been injured as a result of a traumatic birth, they will be entitled to a sum of money to acknowledge the fact of their injury and any ongoing impact the injury has on their day-to-day life. They may also be entitled to:
Compensation for additional care and assistance required because of their injury
Funding to meet the costs of any aids or adaptations in their home or transportation needed because of their injury.
Funding to meet the privately-funded costs of treatment or therapies to support their injury rehabilitation.
The purpose of any compensation award, as far as possible, is to put you and/or your child back in the position you would have been in if the negligence had not occurred.
At Irwin Mitchell we understand the devastating effects that a birth injury can have on you and your family members. We are the largest medical negligence team in the UK and we have specialist lawyers with particular expertise in supporting both mothers and children who have been injured during pregnancy and birth.
