If concerns have been raised about the standard of care provided during pregnancy, labour, delivery or shortly after birth, it is important to understand your rights and the options available to you.
In this article, we will explain:
What a birth injury is
The time limit for a birth injury claim in Scotland
What type of birth injury claims can be made
The legal test in birth injury claims
How a birth injury claim is investigated
What compensation can include
1. What is a birth injury?
Birth injuries can have devastating, lifelong consequences for children and their families. A birth injury is harm to a baby that happens immediately before, during or shortly after delivery. It can range from temporary bruising or swelling to more serious injuries that may have long-term effects.
It is usually distinguished from a birth defect, which generally refers to a condition or abnormality that develops while the baby is still in the womb.
If a birth injury was caused or worsened by a mistake, delay or failure in care during pregnancy, labour, delivery or neonatal treatment, you may be entitled to make a claim for damages on your own behalf and on behalf of your child.
2. What is the time limit for a birth injury claim in Scotland?
In Scotland, the time limit depends on whether the claim is being made by the mother for injuries she has suffered or whether the claim is being made on behalf of the child for injuries they have suffered. For injury to the mother, the usual time limit is three years from the date of injury or the date she became aware that the injury may have been caused by care which fell below an acceptable standard. For injury to the child, the child generally has until their 19th birthday to make a claim, as the three-year time limit usually starts when they turn 16. A parent or guardian can also make a claim on the child's behalf at any time before the child turns 16.
3. What type of birth injury claims can be made?
If a baby or their mother was harmed because healthcare provided by professionals fell below the standard of care reasonably expected during pregnancy, labour, delivery or shortly after birth, they may be entitled to make a claim.
At MFMac, we have extensive experience of these types of claims, including cases involving:
Failing to monitor or respond to foetal distress
Delaying an emergency caesarean section
Misusing forceps or ventouse
Failing to act on abnormal CTG traces
Mismanaging shoulder dystocia, potentially causing Erb's palsy
Failing to diagnose or treat neonatal jaundice, infection or hypoxia quickly enough
Inadequate antenatal care, such as missing warning signs during pregnancy
Hypoxic Ischaemic Encephalopathy, a condition caused by inadequate oxygen and blood flow during childbirth, which requires ongoing medical care
Cerebral palsy, often caused by oxygen deprivation during labour, which affects movement and co-ordination
Stillbirth due to delayed treatment or delivery
Medication or anaesthetic errors affecting mother or baby
An example of a claim can be found in the case study of CM v NHS Grampian.
4. What is the legal test in birth injury claims?
In birth injury claims, the legal test usually has two main parts:
Breach of duty
This means showing that the care provided by the healthcare professional or hospital was below the standard that would normally be expected. In simple terms, you need to show that a reasonably competent healthcare professional would not have acted in the same way.
Causation
This means showing that the poor care caused the injury. It is not enough to show that something went wrong. There must be a clear link between the failure in care and the harm suffered.
In other words, to be successful in a birth injury claim, we need to prove there was a failure and that failure caused the injury to the baby or mother.
5. How is a birth injury claim investigated?
We would initially investigate the claim by speaking to the family to understand their experience. We would then gather the relevant medical records, including antenatal notes, maternity records, CTG traces, delivery records and neonatal records. We will often prepare a detailed chronology and consider whether there were any delays, missed warning signs or failures in care.
Whilst we are able to advise you on your rights and progress a claim on your behalf, we will require input from independent medical experts to advise us on whether there has been a failure and whether that failure caused the injury. Supportive expert evidence is crucial to being successful in your claim.
6. What can compensation include?
Compensation in birth injury claims depends on the nature of the injury and how it affects the child or mother. It may include compensation for pain and suffering, loss of quality of life, past and future care, rehabilitation, therapies, specialist equipment, adapted accommodation, transport, education support, loss of earnings, pension loss, medical treatment, case management and other costs caused by the injury.
In serious child injury claims, compensation may also include lifelong care and support needs. In some cases, damages may be paid partly as a lump sum and partly through periodical payments, which provide annual payments for life to help fund ongoing care and case management.
For maternal injury claims, compensation may include pain and suffering, treatment costs, psychological therapy, care, travel expenses, loss of earnings and the wider practical impact of any ongoing disability.
If you or your child have suffered a birth injury and you are concerned that the care provided fell below an acceptable standard, our Personal Injury team can help. We have extensive experience advising clients on complex medical negligence claims and can provide clear, practical guidance on your options. Contact our team for a confidential discussion about your circumstances.
