If you or your baby experienced avoidable harm because of the care provided during pregnancy, labour, delivery or shortly after birth, you may be able to make a medical negligence claim for compensation. The first step is usually to speak to a specialist solicitor, who can listen to what happened and assess whether the care should be investigated.

For many families, this comes at a time when they are still trying to understand what happened during the birth and what the injury may mean for the future. You do not need to know whether medical negligence definitely occurred before asking for legal advice.

A birth injury claim involves gathering medical records, obtaining independent expert evidence and establishing whether the care provided by doctors, midwives or other members of the maternity team fell below a reasonable standard and caused avoidable harm. Where the evidence supports a claim, compensation is then assessed according to the effects of the injury and the support that may be needed now and in the future.

This guide from the birth injuries solicitors at JMW explains each step in that process.

Step 1: speak to a specialist birth injury solicitor

The first step is to speak to a solicitor who specialises in medical negligence and birth injury claims.

You may have serious concerns about what happened during the birth without knowing whether the care was negligent. For example, you might know that your baby required emergency intervention and suffered a brain injury or needed neonatal care, but not whether doctors or midwives missed earlier warning signs.

You do not need to establish this before contacting us. You also do not need to:

• Know exactly which doctor or midwife was responsible
• Have all the medical records already
• Understand the legal tests involved
• Obtain your own medical expert evidence
• Know how much compensation the claim may be worth

When you contact our team, we listen to what happened during the pregnancy, labour, birth and the immediate period afterwards. We will also discuss the impact that the potential failings in care have had on your child, yourself and your family. We will also explain how we can move your claim forward.

Step 2: build a clear account of what happened

Your account of the birth helps us understand the sequence of events and identify areas that may require further investigation.

You do not need to remember every detail. Medical records will provide an important source of evidence later. However, writing down what you recall can help build an early picture of the care you and your baby received.

Depending on the circumstances, useful details may include:

• How the pregnancy progressed
• When labour started
• When you arrived at hospital or the maternity unit
• Any concerns you raised with doctors or midwives
• Changes in the baby’s movements
• What you were told about fetal monitoring
• Any signs of fetal distress
• Discussions about induction or delivery
• Whether an emergency caesarean section was considered
• When your baby was delivered
• Any resuscitation or emergency treatment your baby required
• Whether your baby was admitted to a neonatal unit
• What doctors or midwives told you afterwards

Family members who were present may also remember conversations or events that you did not hear or were not in a position to take in at the time.

This account forms part of the wider evidence trail. Our explanation of how to prove medical negligence sets out how a person’s account can be considered alongside medical records, witness evidence and independent expert opinion.

Step 3: gather and review the medical records

Medical records are central to most birth injury medical negligence claims because they document the care provided to the mother and baby.

When JMW investigates a case, we will request the relevant records on your behalf. These could include:

• Antenatal records
• Maternity notes
• CTG monitoring records
• Labour and delivery notes
• Midwifery records
• Operation notes
• Anaesthetic records
• Test and scan results
• Neonatal records
• GP records
• Discharge summaries
• Follow-up records

We review the records alongside your own account of what happened. This allows us to build a detailed chronology and identify important points in the care.

For example, the records may help show whether the frequency of monitoring was appropriate, if and when fetal distress first became apparent, whether monitoring identified warning signs, what action doctors and midwives took, and how quickly a decision was made to deliver the baby.

In other birth injury cases, the focus may fall on the care provided after delivery. A baby may have needed urgent treatment because of breathing difficulties, jaundice or another health problem, and the investigation will need to establish whether the neonatal team responded appropriately.

The records do not need to contain an explicit statement that negligence occurred. Their purpose is to show what happened, what information was available to the care team and what decisions were made.

Step 4: obtain independent medical expert evidence

Medical records alone will not usually establish that birth injury medical negligence occurred. Independent medical experts are often needed to assess whether the care provided met a reasonable standard.

The type of expert required depends on what happened.

A birth injury claim could involve evidence from:

• An obstetrician
• A midwife
• A neonatologist
• A paediatrician
• A paediatric neurologist
• A radiologist
• An anaesthetist
• Another appropriate specialist

More than one expert is needed in many birth injury cases.

The independent expert reviews the medical records and other relevant evidence. They may be asked to explain what a reasonably competent doctor, obstetrician or midwife should have done in the same circumstances.

Their evidence may consider:

• Whether monitoring was adequate
• Whether warning signs were recognised
• Whether doctors or midwives responded appropriately to fetal distress
• Whether delivery should have happened earlier
• Whether an emergency caesarean section should have been carried out
• Whether the baby received appropriate care after birth
• Whether any failure in care caused or contributed to the injury

This independent expert medical evidence is an important part of establishing whether the legal tests for a medical negligence claim are met.

Step 5: establish whether negligent care caused the birth injury

A birth injury compensation claim usually needs to establish two things: that the care fell below a reasonable standard and that this caused or contributed to avoidable harm.

Showing that something should have been done differently is therefore only one part of the investigation.

The expert evidence must also consider what probably would have happened if reasonable care had been provided.

For example, a claim might investigate whether:

• Fetal distress should have been identified earlier
• Inadequate monitoring meant warning signs were missed
• An avoidable delay occurred before delivery
• A caesarean section should have taken place sooner
• A baby was deprived of oxygen because appropriate action was delayed
• Doctors did not respond appropriately when a baby became unwell after birth

A child may experience a brain injury because of reduced oxygen around the time of birth, sometimes referred to as birth asphyxia. Where this happens, independent medical experts will consider whether earlier or different care would probably have prevented the injury or reduced its severity.

Some children who experience a brain injury around birth are diagnosed with cerebral palsy. However, cerebral palsy has different causes and a diagnosis does not itself mean negligence occurred. Where there are concerns about the maternity care provided, our cerebral palsy claims solicitors investigate whether avoidable failures in care caused or contributed to the child’s injury.

The same principles apply to injuries experienced by a mother. The evidence must show not only that care was substandard, but that this caused or worsened the physical injury or any proven psychological injury being claimed.

Step 6: understand the child’s or mother’s current and future needs

If the evidence supports a birth injury negligence claim, we also need to understand the full effect of the injury.

For families whose child has experienced a severe birth injury, this can mean looking far beyond their immediate medical care.

A child’s needs may change considerably as they grow. Independent experts will therefore assess their condition, prognosis and the support they are likely to require throughout childhood and into adulthood.

Depending on the injury, a claim may take account of needs relating to:

• Care and assistance
• Physiotherapy
• Occupational therapy
• Speech and language therapy
• Psychological support
• Specialist medical equipment
• Mobility equipment
• Communication aids
• Adapted accommodation
• Education and learning support
• Transport
• Ongoing treatment
• Future care

The assessment will be specific to the individual child. A child who lives with cerebral palsy or another serious brain injury may have very different physical, communication, educational and care needs from another child with the same diagnosis.

Where a mother experienced negligent care during pregnancy or childbirth, the assessment may instead consider her physical injuries, recovery, ability to work, care needs and any proven psychological injury.

Step 7: send the claim to the healthcare provider

If the medical records and independent expert evidence support the case, we can formally present the medical negligence claim.

We prepare a Letter of Claim setting out the key allegations. This will usually explain:

• The chronology of the care
• What doctors, midwives or other healthcare professionals should have done
• Where the care fell below a reasonable standard
• How those failings caused or contributed to the birth injury
• The impact of the injury
• The losses and future needs arising from it

We review the Letter of Claim with you before it is sent.

The organisation receiving the claim will depend on where the care was provided. It may be an NHS trust, a private hospital or another healthcare provider.

This forms part of the wider medical negligence claims process, during which both sides investigate the evidence and identify the points that are agreed or disputed.

Step 8: consider the healthcare provider’s response

The healthcare provider or its representatives will investigate the allegations and provide a formal response.

The response may:

• Admit all of the allegations
• Admit some of the allegations
• Dispute particular parts of the claim
• Deny the allegations

We review the response alongside the medical records and independent expert evidence and explain what it means for your claim.

Where further questions arise, we may need to gather additional evidence or ask an expert to consider a particular point raised in the response.

If the evidence remains supportive but agreement cannot be reached, it may become necessary to start court proceedings. This does not automatically mean the case will go to trial.

We explain each stage before it happens and advise you about the options available. Decisions about how to proceed remain yours, and we make sure you have the information you need when those decisions arise.

Step 9: work out the appropriate birth injury compensation

There is no standard amount of birth injury compensation. The amount is assessed according to the injury and the physical, psychological, practical and financial impact that the negligent care has caused.

For a child with severe birth injuries, this can include needs extending many years into the future.

Medical negligence compensation is divided into general damages and special damages.

General damages

General damages reflect the injury itself and its consequences.

This can include:

• Pain
• Loss of amenity
• Physical disability
• Scarring
• Any proven psychological injury

The nature and severity of the injury, its long-term effects and the person’s prognosis will all be relevant.

Special damages

Special damages cover financial and practical losses caused by the negligence.

In birth injury compensation claims, these might include:

• Care provided by family members or paid carers
• Lost earnings
• Physiotherapy and occupational therapy
• Psychological support
• Specialist equipment
• Mobility and communication aids
• Adaptations to the family home
• The cost of suitable accommodation where required
• Transport needs
• Education support
• Additional travel expenses
• Future care and support

Special damages can include both losses that have already arisen and future losses that the evidence shows are likely to result from the injury.

For children with significant lifelong needs, understanding the future impact of the injury is particularly important. Compensation should be assessed against the evidence about what the child is likely to need in the future, rather than simply their position at the time the claim begins.

Who can bring a birth injury claim for a child?

A child cannot conduct their own birth injury medical negligence claim while they are under 18. Instead, a parent or another suitable adult can usually act on their behalf as a litigation friend.

The litigation friend makes decisions about the claim in the child’s best interests and works with the legal team while the child is unable to conduct proceedings themselves.

A claim does not have to be brought while the child is young. If no claim has been made on their behalf before they turn 18, the child can usually make their own claim once they become an adult.

Different rules can apply where a person lacks the mental capacity to conduct their own claim. In those circumstances, a suitable family member or another appropriate person may be able to act as their litigation friend.

Where a mother experienced a birth injury because of negligent maternity care, she can bring the claim for her own injuries separately from any claim relating to her child.

What is the time limit for a birth injury medical negligence claim?

Different time limits can apply depending on whether the claim relates to the child or the mother.

For a child, the usual three-year limitation period does not start until their 18th birthday. This generally means that they have until their 21st birthday to start a claim if one was not brought on their behalf while they were under 18.

A parent or another suitable litigation friend can start a birth injury claim on the child’s behalf before they turn 18.

For a mother bringing a medical negligence claim for injuries she experienced during pregnancy, labour or delivery, the usual time limit is generally three years from the negligent treatment or from the date she first knew, or could reasonably have known, that the care may have caused avoidable harm. This is known as the date of knowledge.

Different rules apply to people who lack mental capacity.

Because the limitation period depends on individual circumstances, seeking advice early gives our team time to investigate the medical records and obtain the necessary expert evidence. Our detailed article on medical negligence claim time limits explains the general rules and exceptions in more detail.

How can JMW help with a birth injury compensation claim?

Our medical negligence solicitors help families investigate whether avoidable failures during pregnancy, labour, delivery or neonatal care caused or contributed to an injury.

We begin by listening to your account and understanding what has happened to you or your child. If we recommend investigating a birth injury negligence claim, we gather the relevant medical records and build a detailed chronology of the care.

Depending on what those records show, we instruct independent medical experts to consider whether the care met a reasonable standard and whether any failings caused avoidable harm.

Where the evidence supports the claim, we guide you through each stage, from presenting the allegations to assessing the impact of the injury and the compensation that should be awarded.

Our team includes members of the Law Society’s specialist panel of clinical negligence solicitors and the Action against Medical Accidents (Avma) solicitors panel.

The vast majority of our medical negligence cases are funded through a no win, no fee agreement, also known as a conditional fee agreement. In most circumstances, this means you will not have to pay legal fees if the claim does not succeed, so there is very limited financial risk. We explain the funding arrangements that apply before you decide whether to proceed.

For families dealing with a birth injury, we understand that you will have other priorities and  the legal process is only one part of what may be happening in your lives. We provide clear advice, keep you updated as the evidence develops and make sure you understand the decisions that arise throughout the claim, so you can focus on what is best for you and your family.