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A baby in an incubator

It is not uncommon for minor health complications to arise during or following the birth – these often resolve quickly and require little or no treatment. However, some birth injuries may have life-changing consequences that are often irreversible, and some may require life-long care and support.

In many cases, injuries may not become apparent until the baby is slightly older and are only recognised when key milestones such as crawling and talking fail to be met. Physical and mental delays in development may be an indication that a baby has suffered a birth injury.

Birth injury refers to an injury sustained by a woman or her baby before, during or soon after the birth. Although there are many different types of birth injury that a mother may experience, this article will only focus on those that affect the baby.

Types of birth injury

Birth injuries affecting babies are usually one of the following:

  • Injuries affecting the brain or nervous system
  • Physical injuries (e.g. broken bones)
  • Infection transmitted from the mother

Brain injuries at birth

Brain injuries sustained at birth can vary in severity. They often can be serious and may result in permanent physical and mental complications. One of the most commonly seen brain injuries in children is cerebral palsy.

Cerebral palsy is a neurological condition that affects the brain’s ability to control movement, posture and balance. The condition is often not recognised until a child reaches the age of around two or three years when the child is starting to be more mobile. Some individuals affected may have mild issues with movement, whilst others may have more severe damage requiring full-time care for the rest of their life.

Cerebral palsy and medical negligence claims

In the majority of cases, cerebral palsy occurs spontaneously during pregnancy and not as a result of negligent medical care.

However, mistakes can occur before, during or after birth that result in cerebral palsy. If you are unsure, it is worth investigating further. A successful cerebral palsy claim can award the injured child with enough compensation to cover the necessary costs that the condition may incur over their lifetime.

Errors made by medical professionals that can fail to prevent or cause cerebral palsy include:

Lack of oxygen during birth

Many medical negligence claims regarding cerebral palsy are often caused as a result of a lack of oxygen at birth. When a baby does not receive enough oxygen (hypoxia), their brains can be left permanently damaged. A baby’s oxygen supply may be temporarily cut off for a number of reasons, however it is the medical professional’s duty to recognise and react in the appropriate manner within a reasonable timeframe.

Not recognising symptoms of distress

Although the initial health complications may not be caused by negligent care, it is essential that health professionals are always checking the mother and baby so that the correct preventative measures can be taken if needed. Failure to monitor the baby’s heartbeat, incorrectly analysing the CTG monitor and inappropriate use of medication in order to initiate contractions can all lead to signs of distress going unnoticed. If this happens the baby may not be delivered early enough – this can increase the risk of the baby becoming brain damaged.

Incorrect use of instruments during delivery

During some births, forceps or a ventouse suction cup may be used to assist the delivery. Both instruments involve pressure being put on the baby’s head. If a medical professional uses these tools incorrectly, or too prematurely, the baby may be left brain damaged.

Shoulder dystocia

Shoulder dystocia is a childbirth complication that occurs when a baby’s head is delivered but one of its shoulders gets stuck behind the mother’s pelvic bone. When this happens, increased force is often required to deliver the baby. Usually, this is managed without any further issues. However sometimes, the increased force can cause some of the baby’s nerves that pass between the spinal cord and the arm to become damaged. These nerves form an important neural network in the upper arm called the brachial plexus.

Erb’s palsy

Erb’s palsy is the most common injury to the brachial plexus. It can happen during childbirth and may occur when the nerves in the brachial plexus are stretched or torn. Like most birth injuries, the severity of the injury can vary, and although damage to the nerves is usually apparent at birth, the extent of the damage is not always clear.

Erb’s palsy and medical negligence claims

When a baby is awkwardly positioned in the womb during labour, it is not as a result of negligence. Claims surrounding Erb’s palsy and other similar injuries occur when the medical professional in question fails to take the appropriate actions in order to either prevent, or treat an injury within a suitable timeframe.

For example, you may have a claim if you are a diabetic and have a child with Erb’s palsy. This is because diabetic women are more likely to deliver a larger baby and therefore should be informed about the potential risks of shoulder dystocia before they give birth. If they were not told about the risks, and their child ended up being diagnosed with Erb’s palsy, then this may result in a case of medical negligence being brought.

Group B Streptococcus (GBS)

GBS is a bacterium that is carried naturally by around one in four women. It is usually harmless and presents no symptoms, meaning that most women will not even know they have it.

Testing for GBS during pregnancy can be done, however it is not a routine check that is offered by the NHS (unless you are showing symptoms that suggest you are a carrier).

When a woman carrying GBS gives birth, there is a small risk that the bacterium may be transferred to the baby during childbirth. This can make the baby seriously ill, and in the most severe cases might lead to the baby developing a life-threatening disease such as pneumonia, meningitis or sepsis. The bacteria can also damage the baby’s brain, resulting in permanent brain damage.

GBS and medical negligence claims

GBS occurs naturally in women and is not caused as a result of inadequate medical care. However, you might be able to make a medical negligence claim if:

  • The correct preventative measures were not taken to reduce the risk of GBS and your baby became ill as a result of this
  • GBS was transferred to your baby and they didn’t receive the appropriate treatment within a reasonable timeframe

Healthcare Safety Investigation Branch (HSIB)

HSIB is an independent organisation that investigates medical incidents that have jeopardised patient safety. Their aim is to figure out how and why an incident occurred and what can be done to prevent a similar event from happening in the future. They are not trying to find out who is to blame.

HSIB investigates all of the clinical and medical aspects of incidents where:

  • A baby was thought to be alive at the beginning of labour but was born showing no signs of life (intrapartum stillbirth)
  • A baby dies within the first week of its life (early neonatal death)
  • A baby is diagnosed with brain damage within the first week of its life (only investigated in some circumstances)

HSIB works alongside all the individuals involved in the incident in order to establish which actions were responsible for the outcome. The results are then widely shared for learning purposes.

Interested in reading more about clinical negligence claims?

How to make a clinical negligence claim

This article has been produced by Sandra Patton of Ashtons Legal Solicitors

Sandra is Head of the Medical Negligence team at Brain Injury Group member law firm Ashtons Legal. She has specialised in claimant clinical negligence law since 1991 and has a special interest and expertise in birth injury. Sandra is APIL accredited and is a member of AvMA’s and the Law Society’s Clinical Negligence Panel.

Ashton Legal’s Medical Negligence team are nationally recognised and have been ranked as top tier consistently for over 20 years by independent sources such as The Legal 500 and Chambers UK.

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What is the Brain Injury Group?

Brain Injury Group is a free service designed to connect those affected by a brain injury (whether there is a claim or not) to a range of experts who may be able to offer advice and assistance.

If you’d like to find out more about the work of Brain Injury Group, you are at the right place! You can follow the links below to:

The Brain Injury Group exists to support individuals and families affected by brain injury and the health and social care professionals working in this specialist field. Our mission is to provide anyone affected by brain injury with access to advice on legal, financial and welfare benefit issues delivered by proven experts in the field who have been chosen not only for their skills and knowledge, but also for their passion and dedication to helping people.

As well as providing legal and welfare advice, Brain Injury Group provide training for legal, health and social care professionals. View our award winning Brain Injury Group brain injury training events.

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How can Brain Injury Group help you?

If you would like advice about bringing a brain injury claim, capacity, deputyships, managing the award of compensation or any other aspect of brain injury welfare, legal or financial advice, we have specialist brain injury solicitors and Court of Protection solicitors who can assist.

You can find full details of Brain Injury Group members on our website or there are several ways to get in touch:

  1. Call us on 0800 612 9660 or 01737 852203
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