The Health Service Executive do not release statistics relating to how many serious birth injuries occur in Irish hospitals, but the “accepted norm” in other Westernised countries is 7 in every 1,000 deliveries – almost 1 per cent. Most birth injuries are minor, and often undetected by the naked eye, but some can cause devastating disabilities which stay with the child throughout its life.
Common Birth Injury
The most common injuries that occur at birth are bruising, swelling and fractured bones. These are not usually permanent and heal within a matter of weeks. More serious cases of birth injury include:-
Facial Paralysis – Facial paralysis is caused by pressure being applied to the nerves in the face during birth and occurs quite frequently when forceps are used. If the nerve is simply bruised, the condition will heal within weeks. If it continues, minor corrective surgery may be required.
Brachial Plexus Injury – The brachial plexus is a network of nerves located beneath the collar bone which transmits signals between the brain and the arm. If these nerves are damaged when excessive force is used to free a baby’s trapped shoulders, your child could suffer from permanent disability.
Cerebral Palsy – Cerebral palsy (literally paralysis of the brain) occurs when a baby is starved of oxygen during the delivery process. This could occur due to the umbilical cord becoming trapped in the birth canal or even by leaving the mother in labour for too long, causing foetal distress. The consequences of cerebral palsy will depend on how deprived the foetus is of oxygen, but some loss of brain function will occur and, in the worst cases, this could lead to your child being severely disabled.
Liability for Birth Injury
If a baby suffers a birth injury which could have been avoided at the time it happened, it is regarded as medical negligence; however proving that a medical practitioner acted negligently is a complex task. Birth injury claims rely on medical opinion to be successful (which is why the Injuries Board Ireland decline to assess applications for birth injury compensation) and your solicitor – with the assistance of a medical expert – will have to show that “on the balance of probability” the management of your baby’s delivery was negligent.
Furthermore, determining who exactly was negligent, and is now liable in a birth injury compensation claim, can be complicated, as a number of medical staff will have been involved in the delivery of your baby. As most worried parents will only make birth injury claims after many years of hoping and praying that their child’s condition is temporary, memories of a specific birth may have dimmed and medical staff could have moved away from the area.
Process for Birth Injury Claims
The process for a birth injury claim is that your solicitor will apply for both yours and your child’s medical records and any additional notes relating to the birth of your child. Your solicitor will also make a formal complaint against the person or persons that they believe are responsible for the birth injury. In most cases this will be the Health Service Executive, the hospital or clinic at which the delivery took place and the leading midwife or obstetrician.
At the same time, your solicitor will also arrange for your child to have an independent medical examination to determine the extent of the birth injury and establish what the long term consequences will be for you and your child. This information will also be presented to those against who the complaints have been made and, in many cases, litigation in court can be avoided through negotiation.
Assessment of Birth Injury Compensation
A birth injury compensation claim will be assessed on the level of injury to the baby, the potential impairment to its quality of life and the cost of future care. In cases where your solicitor has compiled the strongest possible birth injury claim on your child’s behalf, the negligent party and their insurance company may propose a birth injury compensation settlement based on the trauma suffered by you and your child, and realistic costs of care.
If this settlement figure is fair, your solicitor will advise you to accept it. If not, even though liability has been admitted, you may need to go to court for assessment of damages by a judge. Irrespective of whether an agreement is reached out of court or not, you will still have to attend court in order to have the birth injury compensation settlement approved by a judge.
- It is estimated that 7 in every 1,000 deliveries result in some form of birth injury. Many are undetectable and the majority heal by themselves in a short space of time.
- More serious birth injuries will manifest as paralysis or learning disability, and fail to improve as the child gets older.
- Birth injuries can only be described as medical negligence if it can be shown that another course of action could have been taken at the time which would have prevented the birth injury.
- Proving liability in birth injury claims is often difficult, and complicated by time which has elapsed between the birth injury and birth injury compensation claim.
- A medical expert will help your solicitor compile the strongest possible birth injury compensation claim based on your child’s medical notes and an examination
- Birth injury claims can often be settled before litigation in court is necessary. However, you will still have to attend court for approval of the settlement as your child is under 18 years of age.
Acknowledging that your child has a birth injury which will disable them for the rest of their lives is a heartbreaking experience and, if you are in this terrible situation, discuss the points raised in the article above with a solicitor at your earliest opportunity.
It is important to note that each case is unique. If you or your child have been unfortunate enough to have suffered a birth injury and feel that you have a potential injury claim you are advised to discuss all of the points raised in the preceding article with a solicitor at the earliest opportunity.
Copyright © 2009-2019 Eoin Campbell
About the Author
Eoin P. Campbell is an honours law graduate (LL.B) and qualified solicitor whose professional experience is in the area of litigation and in particular personal injury claims. Eoin P. Campbell is currently lecturing in law at two universities in Lyon, France.