(Source Browne: GCSE LAW)
The Legal Chain of Causation
Duty of Care and Breach of that Duty
The first part of a clinical negligence claim is establishing that the healthcare professional owed you or your baby a duty of care. Put simply, when a doctor, midwife, nurse or other healthcare professional is responsible for providing your care, they have a legal obligation to provide that care with the appropriate level of skill and attention.
In childbirth, this duty can apply throughout pregnancy, labour, delivery and the care of the newborn. It does not mean that every mistake or unexpected outcome is negligence. To succeed with a claim, it must also be shown that the duty of care was breached because the care fell below the required professional standard, and that this breach caused or contributed to the injury. These are the three elements that have to be established for clinical negligence.
Causation
In English law, causation is the link between the Defendant’s negligence and the Claimant’s injury and loss. To succeed in a clinical negligence claim, it is not enough to prove that the care was negligent; you must also prove that the negligence caused the injury and resulting loss, on the balance of probabilities. NHS Resolution describes the basic test as asking whether, ‘but for’ the alleged breach of duty, the patient would have been injured in the same way.
Put simply, did the doctor or midwife caring for you do something wrong, or omit to do something important in your care, and did that act or omission cause harm to your baby? Or, if the care had been provided properly, would the injury probably have been avoided?
So, to determine clinical negligence, you generally need to establish three things:
They owed a duty of care; they breached that duty of care; and that breach caused the injury and resulting loss.
Something else to be aware of is that if a baby survives and is completely uninjured despite there being clear negligence, there may be no claim for compensation because there is no injury or loss caused by the negligence. However, babies do not always show the full effects of an injury immediately. Some neurological problems may only become apparent as the child develops, which is why the medical evidence and the child’s development over time can be so important.
A birth injury claim can generally be brought on behalf of a child while they are under 18. There are special limitation rules for children, and broadly a child will usually have until their 21st birthday to bring a personal injury claim in their own name. There are exceptions and complications to these rules, however, so it is important to speak to a specialist solicitor about the individual case rather than relying on a particular date.
What is a Birth Injury Claim?
So, what exactly is a birth injury claim? Birth injury negligence falls under the umbrella term clinical negligence. This falls under Civil Law, as opposed to Criminal Law.
For a clinical negligence claim to succeed, the legal requirements above must be established. They can include such things as failure to diagnose, failure to treat or refer, delay in treatment, substandard care or treatment, failure to recognise infection and so on.
The reason to bring a claim may include compensation, obtaining answers about what happened, and helping the hospital or healthcare organisation learn from what went wrong. A clinical negligence claim itself is not a disciplinary process, although information arising from an incident may sometimes lead to separate investigation or professional proceedings. This is not something you have control over. In many cases, the healthcare professionals involved may instead be given additional training, supervision or other support.
Sources: GOV.UK, NHS Resolution, case law
