During the birthing process a baby (or the mother) may suffer a physical injury. This is called birth trauma or birth injury and may be due to the mismanagement of the delivery or the failure to cope with a medical emergency adequately. While these injuries can be as a consequence of several causes, many are due to preventable errors and/or medical negligence on the part of obstetric doctors or midwives.
Not all birth injuries in Ireland are apparent immediately after the birth. Some will not manifest for months or years after your child has been born and can be caused by genetic or teratogenic factors (smoking while pregnant, excessive drinking, diabetes etc).
Compensation claims for birth injury medical negligence are very sensitive; when injuries to a child during birth have occurred, the result can be devastating for the child and parents alike, yet it may not always be possible to claim medical negligence compensation for a birth injury.
While these injuries can be as a consequence of several causes, many are due to preventable errors and/or medical negligence on the part of obstetric doctors or midwives.
Proving your claim
In order to be eligible to claim compensation for medical negligence at birth, it has to be shown that the injury was avoidable “in the circumstances and at the time” and was the consequence of the lack of care shown by a medical professional or an agent of a clinical facility. It also has to be demonstrated by a “competent” doctor that an alternative course of action could “on the balance of probabilities” have prevented injuries to your child during birth from occurring, and that the person responsible for your child´s injuries displayed a lack of skill or was unable to deliver an acceptable professional performance.
Starting the process early
Quite often, parents may find themselves reluctant to contact birth injury solicitors in early course as it may feel like prematurely acknowledging that their child has an illness from which they might not recover – it can be an upsetting process due to factors like this. Though you may not yet be ready to make a birth injury claim, by talking with a birth injury solicitor, you can have any questions you need resolved answered by an experienced professional and get the advice you need to make an informed decision – if the time ever comes.
Our experience at CLP – Birth Injuries Solicitors
At Coleman Legal Partners medical negligence claims constitute a large part of our case load and with that comes first-rate experience and a high awareness of the area in general by our practitioners. We can advise you on your case and you will be guided through the legal process as sensitively as possible with our support.
We have represented many clients who have suffered due to medical malpractice. Our birth injuries medical negligence experience covers a range of cases and situations like:
• Problems not detected during pregnancy,
• Failure to detect serious abnormalities pre-birth,
• Negligently handled births,
• Errors during Ante-Natal care Injury or death due to medical instruments and/or anaesthetics or inadequate suturing.
More specific types of birth injuries we have dealt with include:
- Cerebral Palsy
- Erbs Palsy
- Brachial palsy
- Hip Dysplasia
- Facial Paralysis
- Errors during Ante-Natal care
Birth injury claims
The birth of a new baby is a joyous and wonderful time for a family, however it is unfortunately the case that issues of complication and medical negligence can occur in and around the time of a birth.
Birth injury can occur at various stages including:
- maternal diabetes or gestation diabetes
- uterine rupture and placental abruption
- wrongful birth cases.
Birth injuries during labour:
- Cerebral palsy
- second & third degree tears
- Erb’s Palsy or brachial plexus injuries
- Certain Forceps delivery or Ventouse delivery.
Birth injuries which could have been avoided come under the heading of medical negligence, and you are entitled to sue the responsible medical physician/hospital who is liable for causing the injury.
The first ever birth injury action before the Irish Courts was in 1988; the case of William Dunne (an infant) -v- The National Maternity Hospital and Jackson. The test for medical negligence is set out in this Judgment. This case came before the last ever Jury to try a Personal Injury Case in Dublin and was extremely controversial.
When can I bring a claim for Birth Injury?
Section 3(d) of the Personal Injuries Board Assessment Act 2003 excludes from its remit claims “arising out of the provision of any health service to a person, carrying out a medical or surgical procedure relating to a person or to the provision of any medical advice or treatment to a person”. Therefore, birth injury claims are excluded from the requirement to apply to the Injuries Board for assessment of the claim.
The current law in Ireland requires that a person must take an action for medical negligence, which includes a birth injury claim, within two years of the date of the event giving rise to the injury. (Civil Liability and Courts Act 2004). This requires a Plaintiff in a medical negligence claim to act expeditiously.
However, birth injury compensation claims can be made by parents of children who have suffered a birth injury at any time up until the child’s eighteenth birthday acting as a “next friend”. Thereafter the child has two years to make a birth injury compensation claim in their own right. However, we recommended that as soon as you believe your child has suffered a birth injury where an element of negligence was shown by a member of the medical staff, that you contact an experienced solicitor who can assist you in the first steps in pursuing a birth injury compensation claim. You should act expeditiously to avoid the Defendant successfully arguing that the case should be dismissed because of delay.
What facts could give rise to the possibility of a birth injury claim?
Birth injury compensation claims may be applicable when your child has suffered an injury during the antenatal care, care during the intrapartum period, care during the process of delivery, care in the resuscitation techniques employed or lack of care in the neonatal period, and there is an element of negligence by one or more of the medical staff.
Heavier than average babies and those born prematurely are more susceptible to injury and nursing staff are aware that they must take greater care of these infants, however any breach of that lack of care either during or immediately after the birth may lead to a birth injury compensation claim.
What are the essential criteria of a successful birth injury claim?
The existence of a duty of care, the breach of that duty and a causal link between the breach and the resultant injury, loss or damage to the Plaintiff is required for a successful birth injury claim. In such cases, it can be difficult to prove a causal connection between the alleged breach of duty and the resultant injury, loss or damage.
Establishing a breach of duty:
In birth injury claims the alleged negligent care may arise as a result of failings in the antenatal care, care during the intrapartum period, care during the process of delivery, care in the resuscitation techniques employed or lack of care in the neonatal period. Any or all of these elements of the care provided could give rise to a potential allegation of breach of duty.
How can I prove a breach of duty?
It is imperative to engage an appropriate expert to furnish his/her opinion on the level of care provided, such as an obstetrician, gynaecologist, neonatologist etc. Usually such experts are from the United Kingdom. When we have received your instructions, we liaise with Senior Counsel on your behalf and consider the appropriate expert. We then send him/her all of the obstetric, neonatal and follow on paediatric medical records together with a detailed statement of events (prepared by the parents) and a letter of instructions summarizing the relevant facts and issues of the case requesting them to furnish their opinion on whatever specific areas are of concern.
In addition, it is worthwhile requesting the Hospital Protocols for the management of High Risk Pregnancies, management of Foetal Distress in Labour and Neonatal Management of Newborns. These protocols can assist in establishing or undermining a Plaintiff’s case at the outset.
Establishing a causal link between the disability and intrapartum events:
As above, it is essential that expert reports and opinions are sought from experts in paediatric neurology and/or paediatric neuropathology and/or neonatology to seek to establish a causal connection before pursuing a birth injury claim.
A legal representative would usually be looking out for the following:
- Evidence of foetal distress in labour
- The cord blood pH
- Condition at birth
- Encephalopathy in the first 72 hours of life
- Evidence available from radiological investigations including MRI scanning
- Hypoxic Ischemic injury to organs other than the brain
What to do next in respect of a Birth Injury Claim in Ireland
The Irish Independent 01.02.2016 - “Parents of tragic girls hit out at maternity review delays“
The Irish Times 27.01.2015 - ‘Staff had concerns over problem births at Portiuncula Hospital’
Clare Champion - ‘Families call for extended maternity review’
Sunday Independent 08.02.2015 - ‘Maternity Deaths probe widens as new cases emerge’
The Independent 11.02.2015 – ‘Our Lady of Lourdes Hospital in Drogheda Audit into undiagnosed breech births’
RTÉ 13.05.2015 – ‘HSE investigating baby death at Cavan General Hospital’
The Irish Times 20.05.2015 ‘Boy receives €8.5 million settlement over birth injuries’
The Journal.ie 24.05.2015 - ‘Ireland’s maternity units are facing chronic and dangerous understaffing’
The Irish Times 10.06.2015 - ‘Cavan maternity unit review begins after four baby deaths‘
The Irish Times 15.10.2015 - ‘Girl with cerebral palsy settles action against HSE for €6.7m’
*In contentious business, a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement. This statement is made in compliance with RE.8 of SI 518 of 2002.