A guide to compensation settlements for birth injury claims

To establish whether someone has a birth injury claim, we need to prove the three key elements of any medical negligence claim:

1. Did a healthcare professional breach their duty of care to the claimant?

2. Did the claimant sustain a physical or psychological injury?

3. Was the harm suffered by the claimant directly caused by the breach of duty of care?

First, we will look for breach of duty of care. The potential clinicians who may have breached their duty of care include:

• Midwives

• Obstetricians

• Neonatologists

• Anaesthetists

As birth injury claim specialists, we are often immediately able to identify which clinician’s actions or inactions to investigate first based on our client’s statement and the medical records. This will determine if the care fell below an acceptable standard at any stage of their relationship with the claimant.

It is important to note that until the baby is born, a healthcare professional’s duty of care is solely towards the mother.

We will then consider what injuries the baby or mother sustained which prompted them to start a birth injury claim. Sometimes this is obvious from the medical records, but often we will seek out the input of a relevant medical expert.

For example, a baby is born with brain damage due to oxygen starvation during pregnancy, and they are diagnosed with Cerebral Palsy. A competent solicitor would often seek the opinion of several impartial experts, including:

• A paediatric neurologist to assess the child’s current level of functioning, their likely level of function in the future, and any potential problems they may have as they develop

• A paediatric neuroradiologist to examine MRI scans of the child’s brain to establish what areas of the brain were damaged, and determine from this when the injury is most likely to have occurred

• A neonatologist to assess the condition of the baby at birth – colour, weight, how they behaved, etc., in order to help establish when the injury is likely to have occurred. A neonatologist may also consider whether the care provided in the period after birth was adequate

Particularly in birth injury claims, it is impossible to determine the full extent of the injury until several years after the incident occurred. For example, it may take years to establish if the child develops scoliosis, which could then impact the care, equipment and treatments they will require for the rest of their life.

Finally, we have to link the birth injury sustained by the claimant directly to a breach of duty of care. Again, a specialist solicitor will use witness statements, medical records and the input of impartial medical experts to establish a chronology of events, and then determine whether an unreasonable action or inaction is responsible for the injuries suffered by the claimant.

Sometimes, there may be more than one potential cause for the injuries suffered by a claimant. For example, if a placental problem restricted the baby’s oxygen intake during pregnancy, this could have made it less resilient, magnifying the consequences of mistakes that occurred during childbirth by a healthcare professional.

This is where the doctrine of material contribution is so important. It states that if medical science cannot determine with absolute certainty what the main cause of a claimant’s injury is, if you can prove that a negligent act materially contributed to the injury to any extent, then the claimant is entitled to 100% of the compensation.

We understand that most claimants and their families would prefer to avoid taking their claim to trial where possible. Fortunately, 98% of our cases are settled without being taken to trial, allowing for a more collaborative process to reach a fair, reasonable settlement.

In a birth injury claim where the claimant is under the age of 18, any compensation awarded must be approved by the Court. The Court will also decide how the compensation fund will be invested, and who will be able to manage the fund.

If the compensation awarded is significant, a Deputy will likely be appointed by the Court of Protection to protect and administer this on the claimant’s behalf until they turn 18 (or longer if the claimant is not deemed to have the mental capacity to handle the compensation).

This provides reassurance that the compensation the claimant receives is used to support their care and development, ensuring that their best interests are always met.

There is no average length of time for a birth injury claim, as it will vary based on the complexity of the claim, the availability of medical experts, and how long is required before an accurate prognosis of the claimant’s injuries can be determined.

In many cases, we would expect a substantial birth injury claim to take at least 5 years to reach settlement. However, working with a specialist medical negligence solicitor with extensive experience of birth injury claims can help ensure the process goes as smoothly as possible:

• We will quickly know which healthcare professional’s conduct to investigate first

• We have strong connections to trusted, impartial medical experts, who are both working in their field right now and understand the legal tests we require

• We can question and assess reports in a more focused, efficient manner than solicitors without specialist knowledge

Can you get interim compensation payouts?

The length of time it can take to reach settlement for a birth injury claim can leave the claimant and their family in a difficult position. The child may immediately need aids and equipment, access to therapies and treatments, or round-the-clock care that the family would be unable to afford without compensation.

In these instances, a split trial can be arranged. This divides proceedings into two halves – the first hearing determines whether the defendant is liable. If the defendant is found liable, a second hearing is then held to quantify the claim payout.

When liability is proven, the claimant can gain access to interim payments. These are payments made on account of the compensation that will be paid by the defendant while the full value of the claim is determined. The size of these payments will vary from case to case, but they can be life-changing amounts for the affected family.

This is significant for several reasons. The family receives the money they need to immediately support the affected child. This could include:

• Renting more suitable accommodation based on their child’s needs and storage requirements, or adapting their existing property

• Installing stairlifts, ramps, wet rooms, carports, hoist systems and more

• Hiring live-in care assistants to provide full-time care

• Acquiring aids and equipment, such as wheelchairs and assistive technology

• Paying for necessary treatments and therapies to support mobility and comfort – physiotherapy, hydrotherapy, speech and language therapy, etc.

• Covering the salaries of the claimant’s Deputy and a professional case manager to coordinate their care and therapy

In addition, these payments allow the family to figure out a care regime that works for them. This not only makes it easier for them to become familiar with their new lifestyle – it can be used to demonstrate to the Court what support the claimant will require moving forward.

It will be hard for a defendant to argue against paying for a care regime that is working for the claimant and their loved ones. Therefore, these interim payments can help ensure the final settlement meets the claimant’s long-term requirements.

For more information on securing interim payments and the benefits that they offer in a birth injury claim, click here.