Guide to Pregnancy and Birth Injury Claims

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1 Being pregnant, especially for the first time can be a very daunting experience where you often have to put all of your faith in your midwife or doctor. The majority of pregnancies and births occur without any problems at all, but mistakes made during ante-natal care and birth can lead serious problems and even the death of the baby. Such failures can happen during the pregnancy, labour or after the birth. The care of expectant mothers can be shared between a Consultant Obstetrician and his team, midwives and the woman s GP practice. Nowadays, the care can be exclusively midwife care throughout the pregnancy. There are many hospitals who have midwife led units and a woman with a straightforward pregnancy, labour and delivery will not see a doctor at all although, on paper under the care of an obstetrician. Another group of women will have a combination of GP and midwifery care and yet another group will be seen by a midwife and doctors under the direct supervision of the consultant. When we say "birth injuries" we mean any injury suffered by mother or baby. Typically, mistakes during the birth process will involve midwives or doctors falling to take proper account of a baby s distress whilst in the mother s womb or in the birth canal. Such failures can happen during the pregnancy, labour or after the birth. If you or a loved one has suffered due to the negligence of a healthcare professional such as a midwife or doctor then you may be able to make a birth injury compensation claim. Claims for Medical Negligence related to Pregnancy or Birth Most of the medical negligence claims that we deal with arise following birth are made on behalf of the child. Most of these are because the child has suffered brain damage and the parents are searching for a cause. In many of these cases, the mother will also have a claim. There is also a separate category of cases where the baby is unharmed but the mother has a claim for physical and/or psychological damage as a result of what happened at the time of her child s birth. Page 1 of 9

2 1. During the Pregnancy Wrongful Conception These cases involve inadequate sterilisation surgery, failed sterilisation procedures and this leads to loss of contraceptive protection. Wrongful Birth Claims These cases involve a failure to detect abnormalities in the baby, such as a congenital defects, chromosomal abnormalities, viral infections, the detection of which would have led to the offer of termination of the pregnancy rather than giving birth to a child with a disability. Case law has established that the additional costs of bringing up as disabled child can be claimed (but not for a healthy child). Both wrongful birth and wrongful conception claims are brought by the mother, so the three-year time limitation period applies from the date of negligence or date of knowledge of negligence and legal funding is based on the parents and not on the child s means. Pre eclampsia Pre eclampsia is a serious condition and it can lead to death of both mother and baby. It is believed to be caused by a defect with the placenta, which carries all of the necessary oxygen and nutrients to the developing baby. Pre eclampsia is diagnosed by having regular blood pressure checks and urine samples taken. It is therefore very important that midwives see their patients for regular antenatal checks. The only cure for the condition is to deliver the baby. Maternal Diabetes or Gestational Diabetes The development of gestational diabetes (also known as maternal diabetes) can result in miscarriage or birth defects to the baby such as brain defects or heart defects. It can also cause the baby to grow to a large size which can lead to difficulties with the birth. You may be able to make a claim if there was a failure to detect the condition, a failure to recognise the signs of the condition developing or a failure to carry out appropriate screening tests. Page 2 of 9

3 Uterine Rupture and Placental Abruption The reason placental abruption happens is not known. The pregnant lady may suffer from a heavy vaginal bleed or severe pains in her back or abdomen. The blood loss is caused due to the placenta separating from the wall of the uterus which can starve the baby of oxygen (sometimes resulting in brain damage or death). Uterine rupture can occur in some labours, especially if it has been artificially induced and not properly monitored. A uterine rupture can put the mother at risk of blood loss and damage to her organs, as well as leading to emergency hysterectomy. 2. During Labour Cerebral Palsy Cerebral Palsy is a brain injury caused by a lack of oxygen to the baby that occurs before, during, or shortly after the birth. Cerebral palsy affects 1 to 4 children in every 1,000 born. In many of these cases it is not possible to find out why it has happened. Causes that occur while the baby is still in the womb can include inherited (genetic) conditions, early (pre-term) delivery and infections in the womb. Another cause, and the one most often the reason for litigation, is the baby suffering lack of oxygen around the time of birth. This condition is known as hypoxia. There are conditions that the mother suffers from that can cause hypoxia in the unborn child including diabetes and pregnancy induced hypertension (preeclampsia). Other conditions such as placental insufficiency (the placenta not functioning) can lead to intra uterine growth retardation (a slowing down in the growth rate of the baby), usually in the latter stages of pregnancy. These conditions in themselves can lead to lack of oxygen. Main types of Cerebral Palsy Page 3 of 9

4 Cerebral palsy is classified into four main types - spastic, athetoid (dyskinetic), ataxic and mixed cerebral palsy. The type of cerebral palsy that occurs depends on the exact part of the brain that is affected. Spastic Cerebral Palsy This type of cerebral palsy occurs in about 7 in 10 cases and may result from a prolonged partial deprivation of oxygen prior to delivery. Spastic means that the affected muscles are more stiff than normal. Movements of an affected arm or leg are stiff and jerky. There are different words that are used to describe the type of spastic cerebral palsy. For example: Hemiplegia when the leg and arm of one side of the body are affected. Diplegia when both legs are affected. The arms are usually not affected or are only mildly affected. Quadriplegia when both arms and legs are affected. Athetoid or Dyskinetic Cerebral Palsy This type occurs in about 2 in 10 cases and may result from a short but acute deprivation of oxygen before delivery. This type of cerebral palsy results in slow, writhing movements of the hands, arms, feet, or legs. Some people have sudden muscle spasms. The movements are 'involuntary' and sometimes the tongue or face muscles are affected. Ataxic (Dyskinetic) Cerebral Palsy This type occurs in less than 1 in 10 cases. People with ataxic cerebral palsy have difficulties with balance and fine movement. Mixed Cerebral Palsy People with mixed cerebral palsy have a combination of two or three of the above types. It is most often a combination of spastic and athetoid cerebral palsy, which results in stiff muscle tone plus involuntary movements. What are we looking for in a claim for cerebral palsy? We are looking for answers to a number of questions in a claim for cerebral palsy: Page 4 of 9

5 Was there evidence of marked and prolonged asphyxia (lack of oxygen) whilst in the womb? If a newborn baby shows signs of what is known as hypoxic ischaemic encephalopathy (damage to the cells in the central nervous system the brain and spinal cord from a lack of oxygen) in the early newborn period, with evidence of injury to other organs due to oxygen depravation, for example evidence of kidney or urinary problems. Hypoxic ischaemic encephalopathy can be fatal. It can cause, what is later recognised as, developmental delay, mental retardation or cerebral palsy. Is the child s condition one that can be explained by lack of oxygen at or around the time of the delivery? Have all other relevant non-negligent causes of cerebral palsy been excluded? Investigating the Claim with Medical Experts The way in which these cases are approached is on the basis of excluding all the possible other (non-negligent) causes for the child s brain damage. The difficulty with this approach arises when some crucial piece of the jigsaw is missing. We have to look very carefully at each element of the case. In order to investigate such a claim, it is necessary to employ the services of an independent obstetrician who look at the management of the pregnancy, labour and delivery. A midwife where there has been a significant amount of midwifery. We need a report from a paediatrician, or a paediatric neonatologist, and/or a paediatric neurologist to advise about causation (whether the problems that a child has is a result of lack of oxygen, or some other cause). We also need to know, as far as possible, whether the type of brain damage shown on the MRI (magnetic resonance image) scan is consistent with the problems that the child has. For this we seek the help of an independent neuroradiologist to interpret the MRI scan images of the brain. Page 5 of 9

6 Shoulder Dystocia Shoulder Dystocia occurs when the baby's shoulder becomes lodged behind the mother's pelvis and as a result the delivery becomes delayed. It is a serious problem which can result in serious injury or death to the baby. It is essential is that all doctors and midwives know what manoeuvres to use in this situation so as to avoid damaging periods of oxygen depravation for the baby. Often the manoeuvres employed can injure the baby. It is a matter of balancing this risk of injury compared to the risk of further delay, which can be life threatening or can cause brain damage. An injury that can be caused is a Brachial Plexus Injury. The majority of these are Erb's palsy, which involve the upper part of the brachial plexus. Erb s palsy is a condition affecting one or more of the five major nerves to the arm. Typically, the person affected with this condition will show weakness and paralysis of the affected shoulder, arm or hand. The condition can range from mild to severe. In mild cases there can be complete recovery without treatment. In its most severe form there can be complete paralysis of the arm. Often the person affected cannot raise the relevant arm fully, or bend it at the elbow. The arm may be turned towards the body and the hand turned backwards in what is known as a waiter s tip position. A drooping of the eye may also be present. Injuries to the Mother The usual reason why a woman asks for us to look into a clinical negligence claim arising out of the birth of a child is when she has sustained damage to her perineum and vagina causing sexual dysfunction, or loss of bowel and bladder control. In the case of bowel function this is often due to the mother sustaining what is called a third degree tear to her sphincter muscle this is something that should be identified on careful examination immediately after her child has been born. In the last two decades, there has been an increasing interest in obstetric perineal and anal sphincter traumas. This can be largely attributed to innovations in imaging, as it was the development of anal endosonography that led to the diagnosis of unrecognised anal sphincter trauma during childbirth. It has now been established that the vast majority are in fact visible at the time of childbirth but Page 6 of 9

7 remain undiagnosed. attention is now focused on structured training programmes and hands on workshops to improve understanding of anatomy and repair of perineal and anal sphincter trauma. research on the ideal management continues. This highlights the need to identify risk factors in order to minimise the development of perineal and anal sphincter trauma.. Reference: Abdul H Sultan, Ranee Thakar Dee E.Fenner Perineal & Anal Sphincter Trauma Common issues involving personal injury to the mother include: Episiotomy and Second or Third Degree Tears An episiotomy is a surgical incision made to enlarge the vagina and make delivery of the baby easier. It is usually done if it is thought that the mother's skin would tear without it or the baby is in distress. When complications occur or suturing is carried out incorrectly, this can result in excessive bleeding, life-threatening infections, or rectal problems. If your midwife or doctor performs the episiotomy incorrectly or does not perform it at all when it is obvious that it is required, it could lead to second degree or third degree tearing of the skin or other complications such as incontinence. Forceps Delivery or Ventouse Delivery Assistance is sometimes needed to pull the baby out, if the baby becomes distressed during birth. A choice needs to be made between a forceps delivery and a ventouse delivery. Each method should only be used in specific circumstances and unfortunately if the wrong choice is made, this can result in scarring to the baby's face, skull fractures, bleeding and sometimes nerves can be damaged causing the face to droop at one side. Caesarean Section Complications A caesarean section is usually undertaken if a baby is in a breech position, if a vaginal birth is not possible or if the mother elects in advance to give birth in this way. The procedure involves an incision being made in the mother's abdominal wall and then through the wall of the uterus. A caesarean section carries with it a risk of excessive bleeding and uterine infections. The most common criticism is that caesarean sections are often performed too late. The frequent complications include: Page 7 of 9

8 Difficulty in delivering the baby s head which is deep in the mother s pelvis Haemorrhage Damage to the mother s bladder. Clinical Negligence after Birth Congenital Hip Dysplasia Once your baby has been safely delivered you will feel relieved that the pregnancy and labour went well; however, if you discover a few months later that your baby was born with a condition which was not immediately diagnosed you will feel very let down by the medical professionals caring for you. Congenital Hip Dysplasia is a condition of the hip joint and is thought to be a genetic condition. All newborn babies are supposed to be screened for congenital hip dysplasia, and checks should also be made at 6 months and when other development checks are carried out. Providing the condition is found early the prognosis is good. If the condition is missed by your healthcare professionals and it is not diagnosed before your baby starts to walk, the prognosis is not so good. More complicated surgery may be required and there are risks of later complications in early adolescence and later middle age. Still Birth Cases The term stillbirth refers to babies born dead after 24 or more weeks of the gestation period have been completed. It may be that the baby has died prior to the onset of labour (known as intra-uterine death) or during the birth (known as intrapartum death). Although the number of stillbirths in the UK has steadily fallen, there are still around 3,500 each year. In most cases, the cause of a stillbirth remains uncertain and most stillbirths can not be prevented. However, there are rare occasions when there has been incorrect treatment. Page 8 of 9

9 Infant Mortality Case If your baby is born alive, and tragically passes away after they are born, this is known as an infant mortality. Some of the causes of death cannot be prevented, but there are some that can, with better treatment and investigation from the medical clinicians involved. The parents of a baby who has died due to substandard treatment will be able to pursue a successful claim if it can be proven that the treatment and / or investigation provided by the medical clinicians involved in the pregnancy, birth or aftercare was substandard and that this substandard treatment has been the most substantial factor in the death of their baby. Of course, no amount of money will ever be able to compensate the loss of a child, but it is established that there four main elements to the compensation that can be recovered. 1. General damages This is for the pain and suffering that the parents of the baby have suffered, mainly in terms of a recognised psychiatric injury. 2. Special damages This is for any losses and expenses that may have been incurred in the past and may still be incurring. This can include, for example, loss of earnings for extended periods of time off work and costs for counseling. 3. Bereavement damages A sum of 11,800 is awarded to the parents of a baby who has died if negligence is proven to have been the significant factor. 4. Funeral expenses If they are paid by the parents of the baby. Do you need advice about a potential claim? If you have been affected by these issues and would like to talk to one of our medical negligence solicitors, in confidence, call us on for a free, no obligation assessment of your case. Page 9 of 9