Injuries to a Child during Birth
Claims for birth injury medical negligence are among the most difficult cases for solicitors to handle. When injuries to a child during birth have occurred, the result can be devastating for the child and parents alike, yet it may not always be possible to claim medical negligence compensation for a birth injury.
In order to be eligible to make a claim for medical negligence at birth, it has to shown the injury was avoidable “in the circumstances and at the time” and was the consequence of the lack of care shown by a medical professional or an agent of a clinical facility.
Furthermore, it also has to be demonstrated by a “competent” doctor that an alternative course of action could “on the balance of probabilities” have prevented injuries to your child during birth from occurring, and that the person responsible for your child´s injuries displayed a lack of skill or was unable to deliver an acceptable professional performance.
Claim for Permanent Brain Damage at Birth
This article aims to explain some of the procedures that need to be completed before it is possible to make claims for birth injury medical negligence and what the process is thereafter. It is not intended to act as a substitute for receiving professional legal advice from a solicitor – who should be consulted as soon as possible after medical negligence is suspected to be the reason for injuries to a child during birth.
It should also be explained that, because of the complexity of medical negligence claims for birth injuries, the Injuries Board in Ireland will decline to assess any application for the assessment of birth injury medical negligence that is submitted to them, and will issue you with an “Authorisation” to pursue your claim through the courts.
Consequently you will always need a solicitor to assist you with a claim for medical negligence compensation for a birth injury, irrespective of whether the negligent party has already admitted liability or made an offer of settlement to you.
Claims for Cerebral Palsy at Birth
The first step in the process of making medical negligence claims for birth injuries in Ireland is to make a formal complaint to the medical professional or clinical facility you believe is responsible for your child´s injury. This is best done with the assistance of a solicitor because it will avoid the possibility of contradictory allegations when a “Letter of Claim” is submitted later in the claims process, and the formal complaint is less likely to be emotionally presented.
The purpose of the initial complaint is to get a response from the medical professional or clinical facility which explains how they perceive the incident(s) which resulted in the injuries to your child during birth; and it might be the case that they provide a perfectly reasonable explanation of the events that took place which would then save you the emotional distress of going deeper into the claims process only to discover that you did not have a viable claim for birth injury medical negligence compensation.
If, on receipt of the explanation, your solicitor believes that you should be entitled to claim for medical negligence at birth, he or she will write to all the parties involved in the delivery of your child and request their notes from the incident, which he or she will then ask an independent medical expert to review.
Erb´s Palsy Birth Injury Claims
Should the medical expert confirm your suspicions that the injuries to your child during birth were due to a poor professional performance, the next stage in the process of making medical negligence claims for birth injuries is to get approval to act on your child´s behalf – as it is your child who is the injured party – as a “next friend”.
Under Irish law, a child is not allowed to initiate legal action or instruct a solicitor until they reach the age of eighteen. As it may be impractical to delay a claim for birth injury medical negligence while evidence of negligence is fresh or when you need a settlement of a claim for medical negligence at birth to pay for your child´s medical or educational needs, your solicitor will arrange for you (as a parent or legal guardian) to be appointed as a “next friend”.
This process involves an application to the District Court, in which your solicitor will show that the claim for birth injury medical negligence is in your child´s best interests and that there is no conflict of interest between you and the child you are representing. Approval is usually a formality, and any costs associated with the application are recoverable from the negligent party when the claim is resolved.
Shoulder Dystocia at Birth Injury Claims
Once your appointment as a “next friend” is confirmed, you solicitor will write to all the parties who are considered liable for your child´s injury, informing them that you are claiming medical negligence compensation for a birth injury on behalf of your child, presenting them with the evidence of negligence that has been compiled by the independent medical expert and inviting them to make an offer of settlement.
It is rare that an offer of settlement is forthcoming, as medical practitioners and agents of a clinical facility (administrators, laboratory technicians etc.) are either covered against medical negligence claims by the State or indemnified by medical insurance – and neither the Health Service Executive nor insurance companies are eager to settle medical negligence claims for birth injuries quickly.
If you should be approached directly by an insurance company with an unsolicited offer of settlement, you should always refer it to your solicitor. Insurance companies will always place their profits before the financial well-being of your child and, if you inadvertently accept a settlement of medical negligence compensation for a birth injury which later proves to be inadequate, you cannot go back to the insurance company and ask for more (1).
(1) By their approach, the insurance company has effectively admitted their policyholder´s liability. This should enable your solicitor to arrange for interim payments of compensation until such time as a suitable settlement is negotiated.
Claims for Umbilical Cord Strangulation at Birth
You may have noticed that none of the individual birth injuries highlighted in the section titles have been mentioned in the content of this article. This is because no two medical negligence claims for birth injuries are the same – even when the nature of the injury is identical to another you may have heard about, or read about while you were doing you research on the Internet.
Many factors contribute to determining whether you have a claim for injuries to a child during birth which is worth your while to pursue and how much the claim will be settled for if it is successfully resolved.
Your solicitor will take into account every potential consequence of your child´s birth injury when calculating a settlement of your claim for and, with the possibility of a structured settlement system being introduced in Ireland in the near future, it is important that every element of your child´s injury is considered.
Cranial Injury at Birth Claims
The first element that a solicitor would consider when calculating how much medical negligence compensation for a birth injury your child would be entitled to is the physical injury your child has suffered, its permanence and the consequences that the injury will have on your child´s life as they grow older and into adulthood.
Some of the injuries to a child during birth mentioned on this page may heal naturally over time, or may be able to be reversed with future surgery; but many will be life-long conditions that result in your child requiring constant care and which may even shorten their life expectancy.
Mothers too will be able to claim for birth injury medical negligence is they have suffered a preventable physical injury due to a lack of care by a medical professional during the delivery process. The mother´s claim might be processed in tandem or separately from the claim for injuries to a child during birth depending on the circumstances of the injury and timing of the claim.
Claim for Baby Spinal Cord Injury at Birth
When medical negligence claims for birth injuries are made on behalf of their child, it is the child´s injuries that are considered – and not the parents. Therefore, although you (as parents) may have suffered immeasurable emotional trauma over the events of your child´s birth, it will not be possible to include your own psychological injury within the child´s claim.
Infancy psychological traumas due to injuries to a child during birth have been previously been identified by psychologists and, as many birth injury medical negligence claims are made a period of time after a mismanaged birth has occurred, it should be possible to include this factor – if applicable – in a claim for medical negligence at birth.
If you, as a parent, wish to claim for the emotional trauma you suffered as a result of negligence, you claim will have to be made within two years of the “date of knowledge” on which you were diagnosed with a psychological injury caused by the injuries to your child during their birth.
Claim for a Fractured Bone or Broken Bone at Birth
Both the physical and emotional injuries suffered by your child will have an effect on how full a life they are able to lead in the future, and the “loss of amenity” they experience – or are likely to experience in the future – will be included in the calculation of medical negligence* compensation for a birth injury.
The term “Loss of Amenity” refers to the non-economic factors in your child´s life that will be affected by their injury – such as if they are not able to pursue pastimes and hobbies enjoyed by their siblings or integrate socially with other children – and your own psychological background may have to investigated to ascertain how they may respond to potential social rejection emotionally.
Further factors such as being unable to go on family holidays or school outings will also be considered, as will the effect the injury has on their “anticipated social activity” as your child becomes an adult. The “Loss of Amenity” can be a major factor in a settlement of a claim for medical negligence at birth and will vary considerably depending on the social and economic environment into which they were born.
Asphyxia at Birth Injury Claims
The final element of medical negligence claims for birth injuries addresses the financial cost of injuries to a child during birth. The primary consideration within the “special damages” element of a birth injury medical negligence compensation claim is the cost of raising a child who has special medical and educational needs, but other considerations are also taken into account.
If your child will be unable to work because of their injury – or will have to take lower-paid employment than they otherwise might have had – you will be entitled to claim for their loss of future income and opportunities, as well as recovering any loss of income you have experienced while caring for your child since their birth.
You will also be able to recover any expenses you have incurred which directly relate to the care of your child including specialist medical or educational help, travel costs to attend hospital appointments and, if appropriate, the restructuring of your home to permit wheelchair access. Any costs associated with making a claim for birth injury medical negligence* will also be recovered in the settlement of your claim.
Brachial Plexus Injury at Birth
It was mentioned above that neither the Health Service Executive nor insurance companies are eager to settle medical negligence claims for birth injuries quickly. It may be necessary for your solicitor to initiate court action in order to expedite your claim for medical negligence at birth.
This does not mean that you will necessarily have to undergo the emotional trauma of a court hearing to establish liability for the injuries to your child during birth. If your solicitor has compiled a sufficiently strong argument, the representatives of the negligent party will agree to settle before a hearing in order to avoid the inevitable court costs they will incur when your claim is successful.
You will however have to have the settlement of your child´s birth injury medical negligence claim approved by a judge to ensure that it is appropriate to the level of injury that has been sustained and adequate to provide for the child throughout the remainder of their anticipated life.
Claim for Facial Paralysis during Birth
When your claim for injuries to a child during birth has been settled and approved, the settlement is paid into an interest-yielding account which is managed by the courts and released when your child becomes a legal adult (currently eighteen years of age).
Any funds that are directly related to expenses you have already incurred – or that are required for the medical and education needs of your child – can be withdrawn from the account on application to the court, although this process may change when a structured system of injury compensation payments is introduced in Ireland.
It may also be the case that the initial payment(s) of medical negligence compensation for a birth injury are interim payments; made in order that the support that you and your child need immediately can be provided for. In certain circumstances, courts will approve an interim settlement of medical negligence claims for birth injuries, and adjourn the case for a period of time until a structured settlement system is introduced or for further reports into the future requirements of your child to be prepared.
Infant Haematoma Claims
Medical negligence claims for birth injuries are emotionally draining and touch everybody who is involved with them. Because the full consequences of your child´s injuries may take many years to manifest, claiming for medical negligence at birth can often be a long process and you should be prepared for a long wait before your child´s claim is resolved.
By speaking with a solicitor and submitting a formal complaint to the medical professional or medical facility you believe is responsible for your child´s injury, you are not committing to pursuing a claim for medical negligence at birth – simply finding out why and how the injuries to your child during birth occurred.
For some parents this is enough, but others will need the financial security that a settlement birth injury medical negligence can provide to ensure that their child receives the best care and support available for the rest of their lives.
Claim for a Soft Tissue Injury to a Baby during Birth
Although this article explains many of the procedures that may be required before medical negligence claims for birth injuries can be made, it will not apply in every case. No two claims for birth injury medical negligence are the same and consequently settlements of a claim for medical negligence at birth will vary considerably.
Indeed, not all of the factors mentioned in the above article will apply in every claim for injuries to a child during birth, or there may be other elements of a settlement that have not been included above, but which would be unique in your child´s claim.
Consequently, for the most accurate advice which is relevant to your specific circumstances, it is vital that you speak with a solicitor at the earliest possible opportunity.