Birth Injury Compensation Claims

The following information is provided to help you ascertain your rights in relation to birth injuries.

You may also find our resources sections for mothers and children useful too.

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.

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.