The birth of a baby should be a time of safety, reassurance and careful clinical support. Most maternity care in the United Kingdom is delivered safely and compassionately, often in difficult circumstances. However, when mistakes are made during pregnancy, labour, delivery or the immediate neonatal period, the consequences can be life changing.
A birth injury claim is not about blaming staff simply because there has been a poor outcome. Some babies and mothers suffer injury despite appropriate care. A successful clinical negligence claim must prove that the care fell below a reasonable standard and that this caused injury which would probably have been avoided with proper treatment. That distinction is important.
Families often come to me, as a solicitor not knowing whether anything went wrong, but knowing that something does not feel right. My role as a specialist clinical negligence solicitor is to investigate carefully, obtain the records, instruct the right independent experts and advise whether there is a legal claim.
Birth injury claims can involve injuries to the baby, injuries to the mother, or both. They can include cerebral palsy, brain injury caused by oxygen deprivation, hypoxic ischaemic encephalopathy, neonatal stroke, Erb’s palsy or brachial plexus injury, fractures, infection-related injuries, stillbirth, neonatal death, maternal tears, haemorrhage, sepsis, uterine rupture and avoidable psychiatric injury following traumatic birth. Each case turns on its own facts, and careful analysis is needed before conclusions can be drawn.
Why birth injury claims matter
Birth injury claims are among the most serious types of clinical negligence claim. That is because the consequences can last for the whole of a child’s life. Where a baby suffers avoidable brain injury, the claim may need to provide for care, therapy, equipment, adapted accommodation, specialist education, case management, assistive technology, loss of future earnings, Court of Protection costs and financial security long after the parents are no longer able to provide care.
NHS Resolution recognises that avoidable errors in maternity can have devastating consequences for the child, mother and wider family. Its Early Notification Scheme investigates certain brain injuries at birth to consider whether they were caused by clinical negligence and whether families may be eligible for compensation.
The significant financial value of these claims reflects the lifelong needs of children and families, rather than a windfall. Compensation is intended, so far as money can, to put the injured person in the position they would have been in if the negligence had not occurred.
Common examples of birth injury negligence
In my experience, birth injury claims can arise from many different clinical situations. The most common themes include a failure to recognise foetal distress, a failure to act on abnormal CTG traces, delay in escalating care to a senior obstetrician, delay in performing an emergency caesarean section, mismanagement of shoulder dystocia, poor management of maternal infection, failure to treat pre-eclampsia, delay in recognising reduced foetal movements, inadequate neonatal resuscitation, and failure to transfer a baby promptly to specialist neonatal care.
In some cases, the issue begins before labour. There may have been poor antenatal monitoring, failure to identify that a pregnancy was high risk, failure to respond to abnormal scans, failure to manage gestational diabetes, or failure to plan delivery appropriately.
In other cases, the labour itself is the critical period. A baby may show signs of distress, but those signs are missed or not acted upon quickly enough. Sometimes the baby is delivered safely but deteriorates shortly after birth because of inadequate resuscitation, delayed cooling therapy, untreated infection or failure to recognise seizures.
Cerebral palsy and oxygen deprivation
One of the most serious types of birth injury claim involves cerebral palsy caused by avoidable oxygen deprivation around the time of birth. Cerebral palsy is a lifelong neurological condition affecting movement and posture. It can range from relatively mild physical difficulty to severe disability requiring 24-hour care.
In legal terms, the question is not simply whether a child has cerebral palsy. The question is why the cerebral palsy occurred. Some cases are not caused by negligence. Others may be linked to avoidable delay, poor foetal monitoring, failure to expedite delivery, inadequate resuscitation, or failure to provide appropriate neonatal treatment.
These cases require expert evidence from several disciplines, often including obstetrics, midwifery, neonatology, paediatric neurology, neuroradiology, care, occupational therapy, physiotherapy, speech and language therapy, educational psychology, accommodation, assistive technology and financial experts. MRI scans, cord gases, Apgar scores, CTG traces, blood results, neonatal records and developmental records all require close review.
A key issue is often timing. I often instruct our experts to carefully consider when the injury occurred, whether the baby was already compromised before labour, whether there was an acute event during labour, and whether earlier delivery would probably have avoided or materially reduced the injury. These are complex questions, and families should be cautious about anyone giving a quick answer without full review of the records and the expert team meeting to form an opinion.
Erb’s palsy and brachial plexus injury
Another important category of birth injury claim involves Erb’s palsy, which is caused by injury to the brachial plexus nerves around the shoulder and neck. This can occur during difficult delivery, particularly where shoulder dystocia occurs. Shoulder dystocia is an obstetric emergency where the baby’s shoulder becomes stuck after the head has delivered.
Not every case of Erb’s palsy is negligent. However, a claim may arise if risk factors were not recognised, if the mother was not properly counselled about delivery options, if delivery was mismanaged, or if excessive traction was used. The child may be left with weakness, reduced movement, pain, functional restriction, asymmetry and the need for surgery or long-term therapy.
Maternal birth injury claims
Birth injury claims are not limited to injuries suffered by babies. Mothers may also have claims arising from negligent maternity care. Examples include failure to diagnose or repair third- or fourth-degree tears, avoidable perineal trauma, negligent episiotomy, delayed treatment of postpartum haemorrhage, mismanagement of sepsis, retained products of conception, uterine rupture, bladder or bowel injury, failure to manage pre-eclampsia, and psychiatric injury following traumatic birth.
Maternal injuries are sometimes under-recognised because attention naturally focuses on the baby. However, the impact on the mother can be severe. She may be left with pain, incontinence, sexual dysfunction, prolapse, infertility, scarring, psychological trauma, loss of confidence, difficulty bonding with her baby, and loss of earnings. These injuries deserve careful investigation and sensitive handling.
Stillbirth and neonatal death
Some of the most devastating claims involve stillbirth or neonatal death. These cases require particular care. Families may have concerns about reduced foetal movements, missed infection, placental problems, poor interpretation of scans, delay in induction, failure to act on maternal symptoms, or failures after birth.
A legal claim cannot undo the loss. However, an investigation may provide answers, accountability and financial support where appropriate. It may also help ensure that lessons are learned. Families may be involved in hospital investigations, inquests in some circumstances, complaints processes and civil claims. These processes can overlap, and specialist advice is helpful so that evidence is preserved, and the family’s position is protected.
The Maternity and Newborn Safety Investigations programme explains that, after its investigation is complete, NHS Resolution may ask the NHS trust to share the final report with its clinical and legal specialist teams to consider whether the case meets the criteria for the Early Notification Scheme.
How a birth injury claim is investigated
I usually begin with meeting the family, getting to know them, and during this time taking a detailed account from the family. Parents often remember important details that are not obvious from the medical records. They may recall concerns being dismissed, delays in being reviewed, alarms sounding, changes in staff attitude, conversations in theatre, or explanations given after the birth. These details can be very important, although they must be tested against the records and expert evidence.
The next step is to obtain the medical records. These may include GP records, antenatal records, community midwifery notes, hospital maternity records, CTG traces, theatre records, neonatal intensive care records, imaging, incident reports, complaint correspondence, investigation reports and rehabilitation records. In serious cases, the records may be extensive and require detailed chronology preparation.
Independent expert evidence is then obtained. The expert’s role is not to support the family or the hospital, but to provide objective opinion. The solicitor must ask whether there was a breach of duty and, if so, whether that breach caused injury. It is not enough to prove that something went wrong. The claimant must prove that, on the balance of probabilities, proper care would probably have led to a better outcome.
If supportive expert evidence is obtained, a formal Letter of Claim is usually sent to the Defendant, often an NHS trust. The Defendant then investigates and provides a Letter of Response. If liability is admitted, the case moves towards valuing the claim. If liability is denied, further expert evidence and Court proceedings may be required.
What compensation can include
Compensation in birth injury claims depends on the injury and its consequences. In a serious child brain injury claim, compensation may include general damages for pain, suffering and loss of amenity, past care provided by family, professional care, case management, therapies, specialist equipment, wheelchairs, orthotics, communication aids, adapted vehicles, home adaptations or alternative accommodation, education support, deputyship costs, loss of earnings, pension loss, holidays, technology, transport and future medical treatment.
In the most serious cases, compensation may be paid partly as a lump sum and partly by periodical payments. Periodical payments provide annual payments for life, often used to fund care and case management. This can be very important where a child has lifelong needs and there is uncertainty about life expectancy, inflation and future care costs.
For maternal injury claims, compensation may include pain and suffering, treatment costs, care, loss of earnings, psychological therapy, travel expenses, medication, future surgery, and the practical consequences of ongoing disability. In fatal cases, claims may include bereavement damages where available, funeral expenses, dependency claims and other losses under the Fatal Accidents Act 1976.
Interim payments and early support
In serious birth injury cases, early support can be critical. If liability is admitted, or if there is a strong case and the Defendant agrees, interim payments may be sought before final settlement. These payments can fund urgent needs such as therapy, equipment, adapted accommodation, care, case management and specialist assessments.
This is particularly important for children with cerebral palsy or other complex needs. Early therapy, proper equipment and appropriate support can improve quality of life and reduce strain on the family. A good solicitor should not simply wait until the end of the claim. They should consider what can be done now to help the child and family.
Time limits in birth injury claims
Time limits must always be checked carefully. In general, a personal injury clinical negligence claim must be issued at court within three years of the date of injury or the date of knowledge, if later. However, the rules are different for children. For a child, time usually does not start running until their 18th birthday, meaning they usually have until their 21st birthday to bring a claim. A parent or litigation friend can bring a claim on the child’s behalf before then.
Where the injured person lacks mental capacity to conduct litigation, limitation may not run while that lack of capacity continues. This can be relevant in severe cerebral palsy and brain injury claims. However, families should not delay. Evidence can become harder to obtain, memories fade, staff move on, and early investigation may help secure support sooner.
The Limitation Act 1980 is the key statute governing limitation periods for personal injury claims, and careful legal advice should be taken in any case where time may be an issue.
Will bringing a claim affect NHS care?
Families are often worried that bringing a claim will affect their child’s treatment. It should not. NHS care should be provided according to clinical need, not according to whether a complaint or claim has been made. In practice, many families continue to receive treatment from the NHS while a legal claim is ongoing.
A claim is usually handled by NHS Resolution or the relevant indemnity organisation, rather than by the individual clinicians personally. This can reassure families who are uncomfortable with the idea of blaming a particular midwife or doctor. The legal test is focused on the standard of care and causation. It is not about personal hostility towards staff.
What families should do if they are concerned
If you are worried that a birth injury may have been caused by negligent care, it is sensible to write down a detailed account while events are still fresh. Include dates, names, conversations, symptoms, concerns raised, explanations given, and anything that seemed unusual. Keep letters, appointment notes, discharge summaries, photographs, videos, therapy reports and complaint correspondence.
You can also request medical records and consider making a complaint to the hospital trust. A complaint can sometimes produce useful explanations, but it is not a substitute for legal advice. Complaint responses may be incomplete, defensive or written without full independent analysis. A solicitor can help interpret the response and identify whether further investigation is needed.
It is particularly important to seek advice if your baby required resuscitation, cooling therapy, neonatal intensive care, MRI brain imaging, treatment for seizures, or has later developmental delay, abnormal tone, feeding problems, movement difficulties, epilepsy, hearing or visual impairment, or a diagnosis of cerebral palsy. These features do not prove negligence, but they may justify investigation.
Choosing the right solicitor
Birth injury claims require specialist experience. They are medically complex, emotionally sensitive and often high value. The solicitor must understand clinical negligence law, expert evidence, maternity care, neonatal medicine, rehabilitation, life-long care claims and the practical realities of supporting families through litigation.
A good solicitor will listen carefully, explain the process clearly, avoid making unrealistic promises, and investigate thoroughly. They should be comfortable working with medical experts, case managers, therapists, counsel and deputies where needed. They should also understand that families are not simply seeking compensation. They may be seeking answers, safety, dignity, support and a secure future for their child.
Birth injury claims are not easy, but families should not have to navigate them alone. If your child has suffered a serious injury around the time of birth, or if you suffered avoidable injury during pregnancy or delivery, specialist advice can help you understand your options and decide what to do next.
Scott Harding-Lister
Specialist Clinical Negligence Solicitor
Scott Harding-Lister is a dual-qualified solicitor and registered nurse with hands-on experience in both clinical practice and legal advocacy. His unique background enables him to understand the realities of healthcare delivery and to identify when standards have fallen short. Supported by a skilled team of clinical negligence specialists and connected to leading UK medical experts, Scott offers clients clear guidance, expert case preparation, and a depth of insight that ensures every claim is built on strong medical and legal foundations.