Birth Injuries

For most people, pregnancy and giving birth is one of the happiest times of their lives. However, if things go wrong, it can be a very traumatic time for parents. Birth injury claims involving children who suffer Cerebral Palsy and other neurological injuries during the course of labour, delivery and the neonatal period are probably the most tragic, emotional and distressing types of medical negligence litigation that regularly comes before the Courts.

During the birth process a baby may suffer a physical injury. This is called birth trauma or birth injury. A baby’s size and position during labour and delivery can lead to a difficult birth and cause an injury to the baby. There are several types of birth injuries that can commonly occur as a result of complications during pregnancy, labour, or child birth. The types of birth injuries that can occur can be temporary or can result in extensive and long term damage.

Typical injuries that lead to a birth injury compensation claim are mostly related to the foetus not receiving sufficient oxygen during the delivery. This can be caused by the umbilical cord becoming trapped, the mother experiencing complications during the birth or improper handling of the baby once it is born. A reduction in the supply of oxygen to the brain may cause brain damage or lead to some other form of permanent disability.

The following are common birth injuries:

Brachial palsy – brachial palsy occurs when the brachial plexus (the group of nerves that supplies the arms and hands) is injured. It is common when there is difficulty delivering the baby’s shoulder, called shoulder dystocia. The baby loses the ability to flex and rotate the arm.

Fractures – fracture of the clavicle or collarbone is the most common fracture during labour and delivery. The clavicle may break when there is difficulty delivering the baby’s shoulder or during a breech delivery.

Caput succedaneum – caput is a severe swelling of the soft tissues of the baby’s scalp that develops as the baby travels though the birth canal.

Facial paralysis – during labour or birth, pressure on the baby’s face may cause the facial nerve to be injured. This may also occur with the use of forceps for delivery. The injury is often seen when the baby cries when there is no movement on the side of the face and the eye cannot close.

Hip dysplasia – a problem with formation of the hip joint. The location of the problem can be either the ball of the hip joint (femoral head), the socket of the hip joint (the acetabulum), or both.

Neonatal hypoglaecemia – an abnormally low level of blood glucose which can cause long-term brain damage.

Cerebral Palsy – the development of ‘cerebral palsy’ is one of the most serious types of birth injuries that a child can develop. The term “Cerebral Palsy” is used to describe a medical condition that affects control of the muscles. Due to an injury to the brain, the sufferer is unable to use some of the muscles in their body in the normal way. There are different types of Cerebral Palsy; spastic quadriplegic or Hemiplegia Cerebral Palsy, Dyskinetic Cerebral Palsy, Hypotonic or Ataxic Cerebral Palsy.

Cerebral Palsy is caused by an injury to the brain before, during, or shortly after birth. Problems during birth such as the baby not getting enough oxygen, or a difficult delivery in which the baby’s brain is injured may result in Cerebral Palsy. Some babies born with Cerebral Palsy do not show obvious signs right away. Classically, Cerebral Palsy becomes evident when the baby reaches the developmental stage at six and a half to nine months and is starting to mobilise, where preferential use of limbs, asymmetry or gross motor developmental delay is seen.

Many of the common types of birth injuries can be prevented when proper medical protocol is adhered to. Medical negligence can cause several types of birth injuries.

If a hospital is negligent in their handling of a birth which leads to a baby developing Cerebral Palsy or any of the other birth injuries listed above then an action for medical negligence may arise.

If you or a loved one have suffered a birth injury which you feel is due to medical negligence, please contact us to speak with one of our experienced solicitors who can evaluate your case to determine your legal rights and options.

Making a Claim

Compensation from a successful claim can help to pay for the necessary care and therapy needs of the child.
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. Over the past 23 years since the Dunne case there have been perhaps approximately 15 cases brought before the Courts each year concerning Cerebral Palsy.

When can I bring a claim?

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.

Note: Notwithstanding the above, 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 intra partum 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 intra partum 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.

Our experienced solicitors will review the set of obstetric/neonatal records to see if there might be evidence available to link the child’s injury to intrapartum events for example, so as to justify commencing a pre-action investigation. We 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

Birth Injury Compensation Claims

For most people, pregnancy and giving birth is one of the happiest times of their lives. However, if things go wrong, it can be a very traumatic time for parents. Birth injury claims involving children who suffer Cerebral Palsy and other neurological injuries during the course of labour, delivery and the neonatal period are probably the most tragic, emotional and distressing types of medical negligence litigation that regularly comes before the Courts.

During the birth process a baby may suffer a physical injury. This is called birth trauma or birth injury. A baby’s size and position during labour and delivery can lead to a difficult birth and cause an injury to the baby. There are several types of birth injuries that can commonly occur as a result of complications during pregnancy, labour, or child birth. The types of birth injuries that can occur can be temporary or can result in extensive and long term damage.
Typical injuries that lead to a birth injury compensation claim are mostly related to the foetus not receiving sufficient oxygen during the delivery. This can be caused by the umbilical cord becoming trapped, the mother experiencing complications during the birth or improper handling of the baby once it is born. A reduction in the supply of oxygen to the brain may cause brain damage or lead to some other form of permanent disability.

The following are common birth injuries:

Brachial palsy – brachial palsy occurs when the brachial plexus (the group of nerves that supplies the arms and hands) is injured. It is common when there is difficulty delivering the baby’s shoulder, called shoulder dystocia. The baby loses the ability to flex and rotate the arm.

Fractures – fracture of the clavicle or collarbone is the most common fracture during labour and delivery. The clavicle may break when there is difficulty delivering the baby’s shoulder or during a breech delivery.
Caput succedaneum – caput is a severe swelling of the soft tissues of the baby’s scalp that develops as the baby travels though the birth canal.

Facial paralysis – during labour or birth, pressure on the baby’s face may cause the facial nerve to be injured. This may also occur with the use of forceps for delivery. The injury is often seen when the baby cries when there is no movement on the side of the face and the eye cannot close.

Hip dysplasia – a problem with formation of the hip joint. The location of the problem can be either the ball of the hip joint (femoral head), the socket of the hip joint (the acetabulum), or both.

Neonatal hypoglaecemia – an abnormally low level of blood glucose which can cause long-term brain damage.

Cerebral Palsy – the development of ‘cerebral palsy’ is one of the most serious types of birth injuries that a child can develop. The term “Cerebral Palsy” is used to describe a medical condition that affects control of the muscles. Due to an injury to the brain, the sufferer is unable to use some of the muscles in their body in the normal way. There are different types of Cerebral Palsy; spastic quadriplegic or Hemiplegia Cerebral Palsy, Dyskinetic Cerebral Palsy, Hypotonic or Ataxic Cerebral Palsy.

Cerebral Palsy is caused by an injury to the brain before, during, or shortly after birth. Problems during birth such as the baby not getting enough oxygen, or a difficult delivery in which the baby’s brain is injured may result in Cerebral Palsy. Some babies born with Cerebral Palsy do not show obvious signs right away. Classically, Cerebral Palsy becomes evident when the baby reaches the developmental stage at six and a half to nine months and is starting to mobilise, where preferential use of limbs, asymmetry or gross motor developmental delay is seen.
Many of the common types of birth injuries can be prevented when proper medical protocol is adhered to. Medical negligence can cause several types of birth injuries.

If a hospital is negligent in their handling of a birth which leads to a baby developing Cerebral Palsy or any of the other birth injuries listed above then an action for medical negligence may arise.

If you or a loved one have suffered a birth injury which you feel is due to medical negligence, please contact us to speak with one of our experienced solicitors who can evaluate your case to determine your legal rights and options.

How compensation is addressed

If you bring a birth injury claim and are successful, you will be awarded compensation which will provide much needed funds towards the cost of care and therapy your child will require.

It is essential that you seek an award for compensation that flowed from a negligent act on the part of a healthcare professional or hospital. Compensation in medical negligence cases can include damages for pain and suffering both past and future, loss of pleasures/amenities of life past and future, loss of expectation of life, loss of income or employment opportunities and loss of opportunity.

The purpose of awarding compensation is to put the Plaintiff back into the position that they were in before the negligent action took place. In other words, an appropriate description for awarding general damages is “a recognition of the injuries suffered by the Plaintiff and damages should reflect the changes of circumstances of the Plaintiff”. (Personal Injuries and Periodic Payments and Structured Settlement 1996, LRC). Although this is generally considered amongst legal professionals as an imperfect mode of compensating a Plaintiff, it is the only method currently available to the Court.

In assessing the level of compensation, there is a general consensus that the sum awarded should be:

  • Proportionate to the injury sustained
  • Be fair to the Plaintiff and the Defendant
  • Be proportionate to social conditions bearing in mind the common good
  • Proportionate to the general scheme of damages awarded by a Court

In addition, compensation both past and future may also be claimed which include financial losses such as medical expenses, loss of earnings, care costs, aids and appliances and housing accommodation. This aspect of the compensation is the most complicated and requires the input of various experts which we can assist in securing on your behalf.

If you are unsure whether or not you can bring a claim for compensation, seeking advice from a solicitor will, at the very least, reassure you about your legal rights. It is worth taking legal advice before you decide whether or not to pursue a claim.

Why instruct us

For most people pregnancy and giving birth is one of the happiest times of their lives. Unfortunately, things can go wrong and injuries can happen. When they do, the effects can be traumatic for everybody involved. When those injuries have been caused by negligence or a lack of care by the medical team involved in the antenatal care, care during the intra partum period, care during the process of delivery, care in the resuscitation techniques employed or lack of care in the neonatal period, you may want to consider making a birth injury compensation claim.

There are a number of reasons why complications with the delivery may occur – many of them are overcome with professional medical attention. However, sometimes the health of both the mother and the baby are compromised by medical negligence in instances where the umbilical cord compresses and gets trapped, or the foetus becomes distressed, and the attending obstetrician or midwife fails to deal with the emergency situation adequately.

A birth injury compensation claim can be a complex and lengthy case to pursue. As well as being based on medical opinion, judgment in a birth injury compensation claim may depend on how well the argument of medical negligence is presented and communicated to the Court. In addition, a lot of background work is needed when making a birth injury compensation claim – this work can be undertaken and processed more quickly by our experienced solicitors on your behalf.

If you or your child has suffered a birth injury during a delivery or in the immediate aftermath, our solicitors will be able to advise you on the best course of action to take. They will discuss with you the circumstances surrounding you or your child’s birth injury, and determine whether there is a birth injury compensation claim which is worth your while to pursue.

We can offer you practical and accurate advice. You are under no obligation to act on our advice. We guarantee discretion and that our service is strictly confidential.

At McMahon Goldrick Solicitors we understand that no amount of compensation can ever replace the damage that may have been caused by a birth injury, but with a successful birth injury compensation claim, we believe that you will at least have the funds for adequate support and financial stability.

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‘Dear Ralph, I just wanted to express my gratitude and sincerest thanks to you for all your hard work and your professionalism in dealing with my recent case. Mostly I would like to thank you for your compassion and kindness in taking my case on and representing me through the years. I am indebted to you.’

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Irish based organisation which aims to preserve and enhance patient rights in all healthcare settings.

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