Birth Injury Negligence Claims

Birth Injury Negligence: Overview

Birth injury negligence encompasses clinical failures occurring during antenatal care, labour, and delivery that result in harm to the baby, the mother, or both. These are among the most complex and highest-value cases in clinical negligence litigation, frequently involving multimillion-pound awards where a child has sustained permanent brain injury.

The clinical settings in which birth injury negligence arises include:

• NHS maternity units and labour wards
• Private maternity hospitals
• Community midwifery services
• Neonatal intensive care units (NICUs)

Responsibility may lie with midwives, obstetricians, anaesthetists, neonatologists, or the NHS trust as a corporate entity — often more than one defendant is relevant in a serious birth injury case.

Cerebral Palsy Claims

Cerebral palsy is a group of permanent movement and posture disorders caused by non-progressive damage to the developing brain. Where cerebral palsy results from hypoxic-ischaemic encephalopathy (HIE) — oxygen deprivation to the baby's brain during labour or delivery — a negligence claim may arise if the oxygen deprivation was caused or materially contributed to by substandard care.

Common failures leading to HIE claims include:

• Failure to identify foetal distress on CTG monitoring and act in time
• Delay in performing emergency caesarean section once distress was identified
• Failure to use foetal blood sampling to assess acidosis
• Inadequate staffing or supervision on the labour ward
• Failure to recognise and manage cord prolapse

Cerebral palsy claims are among the highest-value cases in clinical negligence. Where a child has profound disabilities requiring lifetime care, compensation may exceed £10 million when future care costs, aids and equipment, accommodation adaptations, and loss of earnings are included.

The Royal College of Obstetricians and Gynaecologists and the Maternity and Newborn Safety Investigations (MNSI) programme — which from 1 October 2023 took over the maternity investigation function previously carried out by the Healthcare Safety Investigation Branch (HSIB) and is now hosted by the Care Quality Commission — publish reviews of maternity safety incidents. Their investigation reports frequently form part of the evidential picture in birth injury litigation.

Erb's Palsy Claims

Erb's palsy is a paralysis of the arm caused by injury to the brachial plexus — the network of nerves controlling the shoulder, arm, and hand — typically occurring during a difficult delivery involving shoulder dystocia.

Shoulder dystocia occurs when the baby's shoulder becomes impacted behind the maternal pubic bone after the head is delivered. It is a recognised obstetric emergency. Standard manoeuvres (McRoberts position, suprapubic pressure, internal rotation) are taught and required. Where excessive traction is applied to the baby's head during delivery — pulling in a direction or with a force that causes brachial plexus injury — negligence may be established.

The degree of Erb's palsy varies from temporary weakness to permanent paralysis. In severe cases — where the nerves are avulsed from the spinal cord — the disability is permanent and lifelong.

Maternal Injuries

Birth injury negligence does not only affect the baby. Mothers may sustain serious harm from negligent intrapartum or post-partum care, including:

Third and fourth degree perineal tears

Severe perineal injuries (OASI — obstetric anal sphincter injuries) should be identified and repaired immediately after delivery. Failure to identify or adequately repair these injuries causes significant long-term harm including incontinence and chronic pain.

Postpartum haemorrhage

Failure to recognise and manage postpartum haemorrhage in time can be fatal. Claims in this category may involve failures of monitoring, delayed blood transfusion, and inadequate surgical intervention.

Surgical injuries during caesarean section

Bladder, ureteric, and bowel injuries during caesarean section may give rise to claims where they result from surgical error rather than inherent anatomical risk.

Maternal psychological injury

Severe post-traumatic stress disorder following a traumatic birth experience — particularly where the trauma was caused or worsened by clinical failures — is a recognised head of damage in birth injury claims.

CTG Monitoring Failures

Cardiotocography (CTG) monitoring records the baby's heart rate and uterine contractions during labour. Correct interpretation of CTG traces is a core competency required of all midwives and obstetricians working in labour settings.

Failures of CTG monitoring are a recurring theme in serious birth injury cases:

• Failure to commence continuous CTG monitoring when indicated by risk factors
• Misinterpretation of an abnormal CTG trace as normal
• Delay in escalating an abnormal trace to medical review
• Failure to act on a pathological CTG trace with appropriate urgency

The RCOG Green-Top Guidelines on CTG interpretation and the CTG classification system (normal / suspicious / pathological) are the relevant standards against which clinical conduct is assessed.

Proving Birth Injury Negligence

Birth injury claims require expert evidence from multiple specialties:

• Obstetric expert (liability — was the midwifery and obstetric care adequate?)
• Neonatology expert (causation — was the brain injury caused by hypoxia during labour, and was that hypoxia preventable?)
• Paediatric neurology expert (condition and prognosis — what are the long-term implications of the injury?)
• Care expert, accommodation expert, and employment expert (quantum — what are the lifetime needs and their cost?)

The Labour Ward CTG trace, the obstetric notes, and the neonatal records are central documents. In serious cases, MNSI or local investigation reports may also be available and relevant.

Compensation in Birth Injury Claims

Birth injury claims involving permanent disability to a child are typically the highest-value cases in clinical negligence. Compensation is assessed to meet the child's lifetime needs, including:

• General damages for pain, suffering and loss of amenity
• Cost of professional care throughout life
• Specialist accommodation
• Aids, equipment, and technology
• Loss of future earnings
• Case management
• Transport

Awards of £5–15 million are not unusual in cases involving severe cerebral palsy with complex lifetime care needs. In catastrophic cases the figure may be higher.

Full guide to medical negligence compensation →

Time Limits for Birth Injury Claims

For claims brought on behalf of a child who sustained birth injury, the three-year limitation period does not begin to run until the child's 18th birthday. This means a claim can be brought at any time until the child's 21st birthday.

For maternal injury claims, the standard three-year period applies from the date of injury or date of knowledge.

Despite the generous limitation period for children's claims, early investigation is strongly advisable — memories fade, staff move, and contemporaneous records are more readily obtained sooner.

Full guide to medical negligence time limits →