How to Claim for a Catastrophic Birth Injury* 

If a child has unfortunately suffered from a birth injury and that injury was caused by the negligence in the medical care afforded to the mother and baby, then a case may be brought to receive financial compensation. Birth injuries are often categorised in the legal world as ‘catastrophic’ (life changing) injuries.

Typical injuries that lead to a birth injury compensation claim are often related to the baby not receiving sufficient oxygen during or just before delivery. A reduction in the supply of oxygen to the brain may cause brain damage or lead to some other form of permanent disability, such as cerebral palsy. This can be caused by inadequate monitoring, failure to diagnose a condition, the mother experiencing complications during the birth or improper handling of the baby once it is born.

Birth injury claims can be brought by a parent of the child, acting as a ‘next friend’ up until the child’s 18th birthday. Thereafter, the individual has two years to bring a birth injury claim in their own right. The person bringing the claim is called the Plaintiff.

 

Your solicitors will take up all of the medical records, scans and radiology from the medical practitioners who provided care to the expectant mother and the hospital where the baby was born.

Our team in McMahon Goldrick Solicitors would then carry out a thorough review to see what issues there may have been in the care afforded to the mother and baby to see if there might be a link to the baby’s injury to intrapartum events. For example, we would be looking out for the following:

  • Evidence of foetal distress in labour,
  • The cord blood pH,
  • The baby’s condition at birth (the Apgar score),
  • Any requirement for breathing support or resuscitation,
  • Any requirement for a blood transfusion,
  • Encephalopathy in the first 72 hours of life,
  • Evidence of a hypoxic-ischemic injury,
  • Evidence of a PVL injury etc.

Your solicitors would then engage the appropriate expert such as an Obstetrician or a Neonatologist to review the records and scans and prepare an expert report on the standard of care provided by the medical practitioners and whether there was any negligence which led to the baby’s injury.

Depending on the unique circumstances of the case, your solicitors may require a number of reports from other experts of varying professions such as a paediatric neurologist and a paediatric neuroradiologist for example, before liability & causation can be established.

It is important to be aware that a case of this kind cannot be brought without a supportive report from an independent expert that states there was negligence in care provided by the medical practitioners.

Once your solicitors have obtained a supportive report, they can then begin the process of bringing about court proceedings, which are typically issued in the High Court.

The person or party who allegedly caused the injury is called the Defendant. When your proceedings have been issued, the solicitors for the Defendant will obtain their own expert reports which comment on the issues of liability and negligence.

To facilitate with their investigation, the solicitors for the Defendant will request for your solicitors to issue them with a copy of the relevant medical records and any other records relating to the injury and treatment received. This process is called ‘discovery’.

Broadly, there are three categories of reports that your solicitors will obtain for the purpose of building your birth injury case.

The first category of reports are those relating to liability & causation.

The second category of reports are medical reports. If appropriate, some of these reports may be obtained from the child’s treating doctors e.g. GP, paediatric neurologist, rehabilitation consultant etc. These reports are obtained for the purpose of detailing the child’s current condition and future prognosis, from a medical perspective.

The third category of reports is what is referred to as quantum reports. These are the reports which your solicitors will use for the purpose of calculating the bulk of the value of the claim for compensation. Your solicitors will instruct a number of experts to assess the child’s current needs and what their needs will look like moving into the future.

Quantum experts can include physiotherapists, occupational therapists, care consultants, speech & language therapists, housing experts, assistive technology experts, vocational assessors, psychologists and rehabilitation consultants. Those experts will make a number of recommendations to help the child live a more independent life moving into the future. For example, the housing expert may advise in relation to the costs of building a home to make it fully accessible, the nursing expert will make recommendations in respect of the number of private care hours they may require, the occupational therapist will advise in respect of the equipment needs and their associated costs moving into the future, the vocational assessor will ascertain to the extent that is it possible what the likely future loss of earnings will be.

Finally, an actuary will review all of those quantum reports to calculate the total value of those future recommendations.

The costs that have been built up to date will also be included in the claim. For example, the cost of making any adaptions to the child’s home will be included and additionally, the hours put in by loved ones caring for the child will be valued (this is known as ‘retrospective care’).

The solicitors for the Defendant will typically obtain like for like quantum reports, meaning that for every type of expert that your solicitors send to you, the Defendant will arrange for you to see an expert of the same profession for them. Those experts for the Defendant will also ascertain the child’s past & future needs, however, the value of their recommendations is often much lower than the value of the recommendations made by your own experts. This is where negotiation will come into play.

As you can probably tell by now, obtaining the appropriate expert reports are crucial for firstly being successful and secondly, for achieving favourable compensation.

Your solicitors will hire barristers or ‘counsel’ on the child’s behalf. In a catastrophic birth injury case,  you will will have a junior barrister and 1 – 2 senior barristers. Your solicitors and counsel will work together as the child’s legal team.

Your counsel will advocate for the child in court, prepare some of the legal documents that must be filed in a case and provide legal opinions on whether or not you have a good legal case and will advise your solicitors in respect of steps to take to overcome certain issues that may crop up. Finally, your counsel will be the person who negotiates a settlement of your case if it does not go to trial.

Therefore, it is equally as important for your solicitors to hire counsel on your behalf who are not only experienced in handling personal injury and medical negligence claims, but also have an in-depth experience of dealing with complex catastrophic birth injury claims.

The vast majority of cases end up settling outside of the court room, however, there is never a guarantee that a case will not go to trial.

If a case proceeds to trial, the judge will hear evidence from each party and each of the parties’ expert witnesses.  The judge will then decide whether or not to make an award in the child’s favour.

If there is a successful outcome, there is usually a payment made directly to the parent or parents for retrospective care which is the additional care that was provided because of the injury and for items paid for by the parents up to the date of settlement.

If a case is settled or if an award is made by a judge, typically the State Claims Agency will make the payment in the case of medical negligence cases relating to care provided in public hospitals.

If you have been successful with your claim for compensation, then the child may receive a lump sum payment or an interim settlement or periodic payments.  Although the courts are currently not disposed to making periodic payments, we will always engage an expert to secure their view on this point.

If the injured party is now an adult, who has full mental capacity, then he/she spend the money how they see fit.

If the injured party is under the age of 18, then the funds are typically lodged in the High Court until the child turns 18 years. In the meantime, the child’s next friend (e.g. parent/guardian) will be permitted to take out monies to cover the child’s expenses on a monthly basis and also make big purchases for housing and equipment.

Our clients often use the funds to build a fully accessible home, purchase an accessible car, pay for private care hours and private medical treatments and purchase equipment to help them live more independent lives.

Advice should be secured from a tax expert to ring fence any monies that are secured in the settlement so that tax is not paid any income that is generated by investments.

Here are of the first steps that you should take if you are considering taking legal action in respect of your or your child’s birth injury:

Contact a solicitor ASAP

If you are aged 18 years or over, you only have two years from the date of your 18th birthday to lodge a birth injury claim in normal circumstances (there are some limited exceptions to this). Therefore, it is crucial that you firstly make contact with a solicitor who can then advise you whether or not you might have a claim. Your solicitor can then start the work on lodging your claim within the two-year time frame from the date of your 18th birthday and if necessary, make arrangements to preserve any evidence.

If you are enquiring on behalf of a child who is below the age of 18, then the time window is much more extensive. The statutory time limit of two years only starts from when the child turns18. The child’s next friend has the ability to bring a claim on their behalf at any point in time if the child is under the age of 18.

Make a detailed note of the event

You should write down all the details that you can recall of the circumstances of the birth and the care that was provided during the pregnancy. This can be a particularly difficult exercise to do after experiencing such a traumatic event, but it will be of tremendous benefit to your potential new solicitors and it will assist them with the process of taking your formal instructions. Crucial details such as any symptoms leading up to the day of delivery, what happened on the day of the delivery, what medical services the mother immediately received, the baby’s condition at birth and the timing of all those events should be noted. The sooner you write those details down the better.

Take up a copy of the medical records

You should obtain all of the mother’s and infant’s medical records, radiology and reports from the hospitals & care providers attended. Information on how to obtain those records will be available on the hospital’s website. It is also advisable to take up a copy of the medical records held by the mother & infant’s GP.

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 are injured during the course of labour, delivery and in the neonatal period are some of the most tragic, emotional and distressing types of medical negligence cases that come before the courts.

It is therefore important that you engage solicitors who have a full understanding of the nature of these injuries and the impact they have both from the medical side of things and in terms of how they can affect the whole family.

Your solicitors must know who the leading experts are and be able to competently instruct them with all the relevant details so that you can ultimately obtain meaningful compensation to help safeguard your / your child’s future and to enable you / your child to live a more independent life.

We at McMahon Goldrick Solicitors, understand that clients who have suffered from a catastrophic birth injury have very specific needs and concerns. We purposefully maintain a very low number of files so that individual attention can be given to each client.

We have over 60 years’ combined experience and we only deal with catastrophic injuries so the specialist nature of our office allows us gently glide over hurdles that others may, with the best will in the world, procrastinate about.

Over the years, we have established professional connections with the top medics and expert witnesses who are involved with these types of cases.

And our clients are informed in “real time” of any developments and they get their case heard as soon as possible but without taking any shortcuts.

Without ever losing sight of the sensitivity of the injury, we go about our work in that empathetic and honest way, completely aware of how difficult and anxious having a catastrophic birth injury is. Clients often confide in us and share private matters with us. We respect that. We want to walk in the client’s shoes with them.

Please, as always, email or telephone us with any queries on a non-committal basis.

Please, as always, email or telephone us with any queries on a non-committal basis.

Contact Us

Looking for help? Call us on 01 6770044 or email us at info@rmcm.ie