Time Limits in the Context of Injuries at Birth
The first thing to be said in the context of birth injury is that the considerations surrounding the time limits for proceedings imposed by the Statute of Limitations are quite different to those involved in most other personal injury claims depending on the nature of the case.
If a child suffers a birth injury, they have a lot more time to investigate it and to carry out the necessary due diligence to find out if they’ve got a case whereas if a parent has suffered an injury in a birth context, they have two years from the date they suffered the injury.
So, you could have a case, for instance, where you have a traumatic birth resulting in injury to both the mother and the child, in which the injuries suffered by the mother in her own right might be both physical and psychological.
Physical injuries could arise because there was a trauma to her person that could have been avoided if the delivery had been handled properly. Then, there could also be psychological injuries arising out of her traumatic experience, or indeed if the child also suffers an injury, then she may have a nervous shock claim, because she saw a loved one in close proximity suffering an injury, and this in effect gives her a psychological injury.
Of course, a father could also have a similar case due to negligent medical treatment, if the child or mother suffers an injury in the course of delivery, and if the father is traumatized psychologically by witnessing this while present at the delivery, that’s a classic nervous shock scenario.
A particular point with nervous shock criteria is that the person who suffers the psychological injury has to be within sufficiently close physical proximity to actually witness the event of the injury personally.
And, in those cases of nervous shock, the father or the mother will have two years from the date they sustained the injury.
In the case of a child who suffers a brain injury in the course of delivery, then time won’t run against them at all for the purposes of the Statute of Limitations. While the Courts do have an inherent jurisdiction to strike out cases that are not brought with due haste if there’s extreme prejudice being suffered against the defendant, generally speaking, if a child has suffered a brain injury, time doesn’t run against them at all.
Even if a child suffers some form of injury, which doesn’t leave them with a mental impairment, they will have until two years from the date they reach adulthood at 18 years before their case would be statute-barred for the purposes of the Statue of Limitations. Therefore, there are very significant differences in the limitation periods in birth injury cases depending on the circumstances, whether the injuries are to children or parents and whether brain injury occurs.
That is a very important factor to consider, but even in cases where a time limit imposed by the Statute of Limitations is not pending, cases of this nature are not generally something that one should just allow to drift or neglect.
That said, you will often find that in the case of a child, it will only be when development can be assessed when they are say four, five, or six that one will be able to establish that they may have missed enough milestones that there is evidence of a significant deficit that may have resulted from any injuries caused in the course of delivery at birth.
So, in a lot of cases where there might be some evidence of some kind of brain injury, or some abnormal MRI of the brain, at birth, whether or not that’s actually going to have an effect on the child’s neurological development can only be determined as time goes by and the child passes through the developmental stages of life at which one would otherwise expect to see normal progression.
For this reason, you will often have parents who won’t even start investigating whether or not there was any substandard treatment at birth until their child is clearly not developing the way that they should, and that could be when the child is at school age or later.
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Types of Injuries and Circumstances Giving Rise to those Injuries
In terms of the types of injuries that can result from substandard medical treatment at birth Cerebral Palsy is one of the most common, where there’s a failure to intervene in a timely fashion in a traumatic birth, as a result of which ischaemia occurs and oxygen is deprived to the brain, or where you have an abnormal heartbeat or a failure to monitor the fetal heart rates and so on.
The other things one can commonly encounter in this context are gynaecological injuries to the mother. One can have tears, which results in incontinence, and you can have nerve damage due to excessive pressure on certain parts of the anatomy resulting in acute and ongoing pain to the mother.
Different types of delivery procedures can also lead to problems, for instance, if it’s a large child indicating that an episiotomy may be required, and the episiotomy is not performed quickly enough, or correctly, then you can have a tear or other damage-causing injury to the mother. Furthermore, if the child is delivered late as a result and is deprived oxygen, then they could also be injured.
In the context of cesarean sections, considerations again usually revolve around timing. If there’s a distressed fetus, and cesarean section is warranted but isn’t carried out quickly enough, either because the consultant isn’t on-site or isn’t called or notified quickly enough or anything like that, then it’s a question of whether or not the child could or should have been delivered by cesarean section earlier and therefore otherwise avoided the injury that subsequently occurred.
Other issues that can arise in the context of birth injury include issues associated with the proper delivery of the placenta and post-delivery issues.
The failure to ensure that the placenta is properly cleared can result in infections that can lead to serious side effects and complications including serious pain and suffering, but also potentially lethal sepsis.
Frequently Asked Questions
Some of the questions our legal team are often asked in relation to birth injury cases.
What are time limits for birth injury claims?
In Ireland, the Civil Liability and Courts Act 2004 stipulates that a person must take an action for medical negligence (inclusive of birth injury claims), within two years of the date of the event which gave rise to the injury. However, birth injury claims can be made by parents acting as “next friend” at any time up to the child’s eighteenth birthday. Thereafter, the child has two years to instigate a compensation claim in their own right.
Which types of scenarios can result in a birth injury claim?
It is possible to bring a compensation claim for a birth injury when your child has suffered an injury during the antenatal care phase, during the intrapartum period or process of delivery, or at any point in the postnatal period – as long as there is evidence of negligence by medical staff.
What are the key factors in bringing a successful birth injury claim?
In order to have the basis for a successful claim, it is necessary to prove that medical staff breached their duty of care. A causal link must be established between the breach and the consequent injury to the plaintiff.
How can I prove that my child’s birth injury was caused by a breach in the duty of care?
To strengthen the basis of your claim, it is essential to seek expert advice from an independent medical expert such as a gynaecologist or obstetrician. You will need to obtain all paediatric medical records and prepare a detailed statement of events. In order to win damages, you must show evidence that your child doesn’t meet developmental criteria and that this was caused by the injuries the child sustained.
Do I have a legitimate birth injury case?
If your baby has suffered a severe birth injury, our team at McCarthy + Co can help you to explore the legal options available to you and determine the best route for bringing your claim. Contact our medical negligence team today for further advice.
About McCarthy + Co
With more than 30 years of experience in dealing with birth injury compensation claims, McCarthy + Co. has expertise in a wide variety of fields relating to medical negligence and personal injury, including birth injury cases. We are a family-run business, and we pride ourselves on offering honest, impartial and helpful advice.
Our offices are based in Dublin and Cork but we work with clients throughout Ireland in locations ranging from Galway to Waterford. You can count on us for legal advice, guidance and assistance on any form of personal injury including fracture compensation claims.
If you have a specific question relating to birth injury, you may find our video FAQ guides useful. Click on the image above or visit our birth injury FAQs page here.
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Flor McCarthy wears multiple hats, not only as the managing partner of one of Ireland’s leading law firms, but also as an author, speaker and an acknowledged expert in client service, innovation and marketing.
Beginning his academic journey at UCC, Flor furthered his education with a master’s degree in law from UCD. After gaining valuable experience as a solicitor in Dublin, the allure of home and the family brought him back to West Cork to contribute his expertise to the family business.
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John McCarthy is a seasoned solicitor with almost 20 years of experience, specialises in personal injury and medical negligence claims, focusing particularly on high-value compensation cases. His extensive litigation experience spans Circuit Court, High Court and Supreme Court levels.
John's practice involves a diverse range of cases, from personal injury and wrongful death to property damage, defective products, professional negligence and judicial reviews.