User Friendly Guide to the Legal Process
STEP BY STEP GUIDE TO THE STAGES OF BIRTH LITIGATION
The following is based on our own personal experience and other cases may vary slightly. However, this is a fairly common path taken by Birth Negligence claims. I have researched the current organisations used in claims, although these may change over time, and may need updating. I am not legally trained so this is purely a guide which must be used in conjunction with your solicitor’s guidance. It is not designed to take the place of legal advice, but simply to help parents follow the process.
Having a baby should be one of the most joyful experience parents should have. However not all births are uncomplicated and result in a healthy baby. In some cases, babies are born with a significant brain injury, resulting in lifelong disabilities.
If you feel something wasn’t right and you want answers, you are often met with platitudes and silence. Sometimes its simply a desire to know what happened that drives parents to seek legal advice. Sometimes NHS care is difficult to get and the support you need is not there because the services are overstretched. Suing the NHS may seem counterintuitive, but the money used to care for injured children comes from an insurance scheme fund.
There is also the matter of preventing these injuries from happening. If we all stayed silent, or were silenced, these mistakes would happen again and again so no lessons would ever be learned.
NHS Trusts have a duty to inform the Maternity and Newborn Safety Investigation Scheme (MNSI) promptly. This will trigger an investigation if certain criteria are met under the Early Notification Scheme (ENS).
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The Early Notification Scheme
Since April 2022 the criteria for Early Notification has changed from:
- has a diagnosis of Grade 3 HIE (hypoxic ischaemic encephalopathy)
- needed therapeutic cooling after birth;
- had seizures, coma, or floppiness (hypotonia) after birth.
to a revised criteria,
“Babies who have an abnormal MRI scan where there is evidence of changes in relation to intrapartum hypoxic ischaemic encephalopathy (HIE)”.
Other types of injuries may be looked at but are not automatic and must be referred separately. The previous criteria are indicators of HIE and may be referred, but there must be visable brain injury on MRI.
The HSSIB, (the Health Services Safety Investigations Body) investigates adverse medical events. From October 2023 the investigation of newborn injuries is conducted by the Maternity and Newborn Safety Investigations. The MNSI will examine the circumstances around the birth, look at the notes and interview witnesses to see if negligence was a factor. They give this report to NHS Resolution (NHSR – the legal/insurance arm) under the Early Notification Scheme (ENS), for review.
NHSR’s chosen solicitors will look at the legal case in depth, commissioning medical reports and taking advice from a barrister, and decide whether there was negligence and if it caused the harm. If harm was caused by the Trust’s negligence, they will reach a conclusion that the NHS is liable to pay compensation.
The MNSI will make you aware an investigation is needed and ask for your consent.
The above process is designed to speed things up and help the child and family receive compensation sooner, and indeed, this can be the case. It may be admitted in as little as 2 years. However, it is a relatively new scheme and a case may be dropped for various reasons. This may be the correct decision, or it may not be. It can take many months to reach this conclusion. A recent freedom of information notice has revealed the number of successful cases so far under this scheme is relatively small.
If the ENS reject your claim you can still contact a Birth Negligence Specialist Solicitor. Indeed the ENS should inform you that you are entitled to contact an independent solicitor for advice. The ENS can take time to return a decision. If they decline your claim and you decide to see a solicitor it can add significant time to the course of the claim. These claims average 8-11 years using the traditional legal route, so adding to the timescale is not desirable. Therefore it is perfectly acceptable to leave the ENS case to reach its conclusions, but also contact a solicitor for advice. I would advise you to do so simultaneously with the start of the MNSI investigation.
(Source NHS Resolution)
For more information on what the different bodies (eg ENS, MNSI, NHSR) do Click here
Seeing a solicitor
If you opted to see a birth injury solicitor as the MNSI investigates or do not accept the outcome, contact one of the major legal firms dealing with Birth Negligence. I would really advise you not to go to a firm without the expertise in this very specific and highly complex litigation area. The large companies will have access to skilled medical experts, access to Legal Aid and solicitors and barristers experienced in this field. There may be smaller firms dealing with birth injury and if you are attracted to their service, do your homework, and make your decision based on good information. Smaller does not mean less competent of course. Choosing the wrong legal firm can add years to your claim so I advise contacting AvMA for an accredited solicitor.
Your chosen legal firm will assign you a solicitor and they will take a statement from you. We suggest prior to this meeting you sit down and discuss with other witnesses what you remember to get a clearer picture of the events. It can be overwhelming to recall stressful events in one sitting. Write this down in bullet points so that nothing will be missed when giving the statement.
These statements are usually revised a few times as the case proceeds anyway. Just have a clear timeline and idea of what transpired. Then I would write it all down including thoughts and impressions you may have had, such as the midwife dismissing your concerns, and especially times things occurred as they are very important. Any phone calls you made to the labour ward, get phone records as soon as possible. Statements should be as accurate and comprehensive as possible, because increasingly Judges at trial rely on written statements from witnesses, rather than oral evidence given in the witness box if the case ever goes to court. This statement will go to the in-house medical professional (usually an experienced midwife) and will be the deciding factor whether the case is taken on.
If they opt not to take the case then it is perfectly reasonable to try another firm.
Either way, the solicitor assigned to your case should keep you updated on how things are progressing. They will send a covering letter with each report summarising the findings, they will have as much or as little contact with you as you wish. It is often the best idea to have a time frame for the next stage, note it in your diary and do your best to forget it. These cases will take years so a constant focus on them will be unnecessarily stressful.
Parental psychological/Injury Claim
If the birth was very traumatic for the mother she may be liable for compensation for psychological injury. Generally speaking, you have 3 years from the event, and will usually need evidence of PTSD, therapy, etc to be successful. However, each case is taken on its merits, so the solicitor will discuss what ‘evidence’ is needed. The initial meeting with the solicitor to discuss the child’s injury, is the time to bring this up as there is a time limit. There must be proveable negligence for the case to succeed.
Your child is the ‘primary victim’, but you (the mother) will also have a primary victim case in your own right. Your case will run alongside the child’s case. As of January 2024, the rules around secondary victims has become tighter and it is almost impossible for partners/family members to claim. Previously a partner present at a traumatic birth caused by the negligence of the medical professional, had a claim for psychiatric injury if the events shocked them sufficiently for them to suffer PTSD or a similar psychiatric injury. The judgement handed down in January 2024 will now form a legal precedent whereby its ruled that in the case of medical negligence, the doctor/midwife’s ‘duty of care’ does not extend to witnesses, and the nature of the ‘shock’, is so variable it entails a level of uncertainty, which the law cannot quantify. I’ve tried on this website not to give opinion or direct advice, but on the matter of psychological injury to the mother, I would advise putting this into your claim immediately. My reason is, the litigation journey, the affects of the birth injury on your child and the stress on yourself and family will almost always take it’s toll on your mental health. The rules around primary and secondary victims are quite complicated but your solicitor will clarify this.
If your birth experience was traumatic but your baby is unaffected, then you may have a totally separate case from the type of case I am discussing here. If you suffered physical or psychological injury attributable to the negligence of the hospital staff, you may have a case. You have 3 years to bring a case for personal injury and a medical negligence solicitor would look at your case in a no win no fee capacity. If it is accepted then you would be regarded as the primary victim. This website is dealing only with Birth Injury but this link to the Birth Trauma Association has some excellent advice and support, as does the AvMA (Action against Medical Accidents) website.
(Source LexisNexis)
Making a Decision
The solicitor will then request your obstetric/neonatology notes from the hospital, your midwife’s notes and all scans/reports etc, and give everything to their medical expert to look over, and based on that report, will offer to take the case or not. They may ask for an updated statement from you and statements from witnesses, such as your partner.
If they do offer to take the case, now may be the time to start making a diary of all the expenses you have on a day to day basis, appointments attended, therapy sessions attended and cares given (feeding, washing, dressing etc). All the everyday things that occur with a brain injured child, over and above that which a normally developing child would need.
If the case is successful in the future you are asked to provide a list of such expenditures, as many will be repaid from the award at settlement. It is a partial recompense purely for the time and money you have paid over and above that of a typical child. It comes under the heading ‘Past Care/Expenses’. Some of this past care may even be given during Interim, so it is always worth requesting this. In my ‘Blog’ section I’ve put up a checklist to help guide this process.
Funding the Claim
You will then need to decide whether you will have state funded Legal Aid (the simplest) or a Conditional Fee Arrangement (CFA) (no win/no fee). Legal Aid is applied for and awarded in tranches according to the strength of the case and the likelihood of winning. However Legal Aid at present is experiencing long delays in some cases and causing various issues with awarding the fees. Your solicitor will discuss this with you if they feel it is an issue. CFA involves a fee which varies according to each legal firm and will be explained to you by the solicitor. Insurance can help to mitigate any fees. I’ve discussed this more in depth in my ‘Legal Agencies’ section.
I would advise taking Legal Aid first as, if the case fails, you can then ask a CFA solicitor to look at the case again, and hopefully, take it on. This gives you a second chance and many claimants have won with this second chance. You cannot do this the other way around. If a case fails on a CFA the Legal Aid Board are unlikely to grant LA, as it must have a good chance of success. If you prefer, your home may have insurance that covers legal cases, so you can opt for this route. Your solicitor will go through your options.
(Source Gov.UK Legal Aid)
Gathering of Evidence
If the solicitor takes the case they send everything including your statement to a set of medical experts who will also look at the hospital records. They are usually a midwife, obstetrician, neonatologist a paediatric neurologist and a radiologist. These experts are not biased one way or the other, so they are not there to support your case, simply to examine the evidence impartially. Other experts may be employed further down the line. It can take anything up to a year to report back, with the more in demand ones having longer waiting lists. I cannot advise you strongly enough, to read these reports, note any errors or things you disagree with and report these back to your solicitor. It is incredibly difficult to read about avoidable harm caused to your child, but it is so important to ensure a real understanding of the reports.
Initial Meeting with Legal Team
Case Management Conferance
Once all reports have been submitted the solicitor will invite you to a meeting to meet the KC (barrister) who will be dealing with your case. You will also meet the experts who wrote the reports. These meetings can be in person, zoom, conference calls etc. The purpose of this meeting is for the barrister to look at the strengths and weaknesses of the case, to ask the experts questions that clarify their reports, and basically hope for a consensus from the experts on the case. You may be asked questions, and you can ask questions, but it’s mostly listening to all the points made. This meeting will decide whether the solicitor will take your case forward. If the case is rejected you are quite free to see another solicitor to try again under a CFA agreement.
The Letter of Claim
If the case is accepted, the barrister puts together a Letter of Claim, which is sent to the Defendant and a copy to you. This lays out in detail why they think there has been negligence, and why that negligence caused the injury. It will have quite detailed evidence from the notes and will use the expert witnesses findings in the report, along with elements of your statement. It usually has a clear timeline. It will not share the expert reports or your statement at this time. Therefore, reports and statements can be revised and updated in line with the reply when it is received from the Trust. The ‘Burden of Proof’ always lies with your team (the Claimants). Your case needs to be proven ‘on the balance of probabilities’ which means it must be greater than 51%.
The Response
The Trust will acknowledge the receipt of the letter of claim and is initially given 4 months to respond, but they inevitably ask for an extension, often 12 months. They quite often ask for further extensions, so it is a long process. If the extensions are getting silly the legal team may ask a Judge to intervene, but they usually allow more time anyway, so it’s not an effective tactic to get them moving unless they are being extremely unreasonable.
In this time the defence will commission their own experts to look over all the evidence and the letter of claim. They may interview witnesses and take statements. Their barrister and legal team then prepare a Letter of Response to the claim. Once received this is also passed on to you. Your solicitor always writes a covering letter to explain what this means, and where the case goes from there.
At this point, they may accept liability and you move on to the next phase, see ‘Interim‘. If, however they reject the claim, you move on to challenging the reasons for the rejection. Unfortunately many cases will be rejected by the Defence unless very clear cut. Often, they will admit some negligence but deny it caused the injury. It is often extremely difficult to cope with these letters of response, but it is a common tactic to deny liability. It’s not personal, it’s their job. Please don’t be discouraged at this point, it is very common to deny due to the adversarial nature of UK civil law.
(source (1) NHSResolution)
Next Steps
The next steps are always variable as it depends on what the grounds for denial are
One thing your legal team will most likely need to do is to ask for further Legal Aid to continue the case if this is not already available. Legal Aid isn’t guaranteed, but usually it is paid if there is a significant chance of it succeeding. The letter of Response is sent to the experts to review. They note any inconsistencies or areas they disagree with, revise their reports to counter the Defence’s claims, and return everything to the barrister. He considers the evidence and from there, decides where the case is going. You may have another Case Management Conference to look at all the evidence, question the witnesses and so on. Your barrister may need to put together a further letter to the Defence with any updated information in the hope they agree to mediation via a JSM. Your barrister will also likely put together a draft Particulars of Claim (a formal document specifying the precise allegations made against the Defendant). This has to be approved by the medical experts and yourself before it is filed with the court, because it can only be amended with the court’s permission. A Joint Settlement Meeting (JSM) (basically mediation) may be asked for in the hope an agreement is reached before the Particulars of the claim are formally filed in court and court proceedings started.
As you can see it is a very variable process, with many different factors, not all of which are outlined above. Sometimes further or new expert witness reports are needed, sometimes LA is refused, sometimes the legal team feel they can’t proceed and so on.
Here are some possible scenarios following the Letter of Response:
- Sometimes the case cannot proceed because the odds of success are low. Try with a no win no fee solicitor if the legal team are determined to close it. People have won using this route.
- Sometimes the legal team are happy with the case and will ask the Defence to attend a Joint Settlement Meeting (JSM) where they exchange expert and witness reports. You are invited to attend, as are the expert witnesses. Your team is in one room and the Defendants in another. Basically the teams put their respective cases and find grounds they can agree on to reach a concensus, hopefully they reach a conclusion in your favour. You could have full admissions at this point, or the Defence will argue for a percentage admission. Your legal team advise you here. Essentially this is a mediation meeting.
- Sometimes following the JSM the Defence are adamant there is no Causation and/or Breach of Duty and its stalemate.
- Provided the case hasn’t been closed or you haven’t reached an agreement, the Barrister will likely ask the Court to set a date to hold a trial. This isn’t as scary as it sounds as the case is heard before a Judge and not a jury.
- Often just before the Court date is reached the Defence will suggest another JSM or will make an offer. It may be the Defence admit liability or offer a percentage. If no agreement is reached or the offer too low the case proceeds to Trial. Should this be the case your solicitor will give you an outline of the risks and an educated guess at what the percentage chance of winning is likely to be. However Court is always unpredictable and should be avoided where possible.
- Very few cases reach court because they are so expensive, but they are simply to examine the evidence and reach a decision based on the balance of probabilities, which is a lower bar than used in criminal cases (beyond reasonable doubt). You, the Claimant’s representative and witness, are asked to give evidence before the Judge, the expert witnesses give their evidence, and any witnesses for the Defence give evidence. The two Barristers will conduct the case. The Judge then makes a decision based on the evidence in around 2-8 weeks.
- A split trial may occur when the court decides on one aspect, such as causality and leaves the quantification of the claim to a later trial. This will speed things up and also avoid the second part as a JSM usually decides the figures.
- At trial, the evidence does not always go the way one expects it to, and surprising results do occur. The outcome of trial is ‘all or nothing’, and clinical negligence cases are seldom sufficiently clear-cut to justify taking the risk of ending up with nothing, so it really is a last resort.
- If the judgement is against you, you may have grounds for appeal, but the barrister would go through that with you. The appeal court will allow an appeal where one of the following grounds of appeal can be made out (Part 52.21(3) of the CPR):
- the decision was wrong (in that it erred in law, in fact or in the exercise of its discretion) (CPR 52.21(3)(a)); or
- it was unjust because of a serious procedural or other irregularity (CPR 52.21(3)(b)).
- The appeal notice must be filed within 21 days of the date of the decision of the lower court which the appellant wishes to appeal.
As you can see the final stages are very variable and not all scenarios are listed here. There are often deviations from the above. However, your solicitor will guide you through what is happening and give you a reasonable timescale.
