Birth Injury Claims: A Step-by-Step Guide to NHS Litigation
User Friendly Guide to the Legal Process
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 to Birth Injury Claims using a step-by-step approach to NHS litigation 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.
Currently, UK Maternity services are not fit for purpose. Lessons are simply not learned and the poor attitude of some professionals towards mothers, continues. We have been on this journey 17 years, and the mistakes are still being made and mothers not listened to. Midwives should not learn by their mistakes if their mistakes are catastrophic for families. Midwifery training and staffing levels must be improved and Governments must facilitate this.
NHS Trusts have a duty to inform the Maternity and Newborn Safety Investigation Scheme (MNSI) soon after birth if certain criteria are met and within 72 hours of the incident being identified. This will trigger an investigation under the Early Notification Scheme (ENS).
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The Early Notification Scheme
NHS Resolution has changed and refined the EN Scheme over time
MNSI and the NHS Resolution Early Notification Scheme
Maternity and Newborn Safety Investigations (MNSI) investigates certain serious maternity and newborn safety incidents in England. For babies, this includes term babies following labour where there is an intrapartum stillbirth, early neonatal death or a potential severe brain injury diagnosed within the first seven days of life.
MNSI is a patient-safety investigation, not a clinical-negligence investigation. Its purpose is to understand what happened, identify factors that contributed to the outcome and make maternity care safer. It does not decide whether negligence occurred or whether compensation is payable.
A baby may be referred because they were therapeutically cooled or had moderate/severe encephalopathy with neurological signs such as altered consciousness, abnormal reflexes, weak or absent suck or seizures. MNSI says trusts should continue to refer cooled babies even where there is no apparent ongoing neurological injury; MNSI will then decide whether an investigation should proceed.
If the investigation proceeds, MNSI reviews the relevant records, speaks with the family and staff involved, obtains clinical advice and produces a report. The family and trust have an opportunity to comment on the draft report before the final report is issued. MNSI aims to complete investigations within six months, although some take longer.
What happens next?
MNSI and NHS Resolution have different roles. NHS Resolution’s Early Notification (EN) Scheme considers whether certain serious brain injuries may have resulted from clinical negligence and whether compensation may be payable. The current EN process uses an MRI-based clinical definition and considers whether there is evidence of substandard care that may have made a difference to the outcome.
A case being investigated by MNSI does not automatically mean NHS Resolution will accept it for an EN legal investigation. Equally, a decision not to proceed under the EN Scheme does not mean that negligence did not occur. NHS Resolution confirms that families can still pursue a clinical-negligence claim where an EN investigation is not taking place.
The EN Scheme is intended to investigate potential negligence more quickly and help families access compensation and financial support sooner where appropriate. Some cases can progress considerably faster than a traditional claim, but timescales vary and an admission of liability does not mean the compensation claim is finished.
My advice to parents is not to assume you have to wait for the MNSI or EN process to finish before obtaining independent legal advice. MNSI is concerned with safety and learning; a solicitor’s role is to investigate whether there is a legal claim and protect the child’s position.
(Source NHS Resolution) (mnsi.org.uk)
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 a specialist legal firm dealing with birth negligence. I would really advise you not to go to a firm without expertise in this very specific and highly complex litigation area. Specialist firms will have access to experienced medical experts and solicitors and barristers with experience in this field, and some may be able to offer Legal Aid. 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 cause significant delays to your claim, so I advise contacting AvMA for one of their accredited solicitors.
Your chosen legal firm will assign you a solicitor and they will take a statement from you. Before this meeting, it can be helpful to sit down on your own and write down what you remember, so that you have 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 important is missed when giving the statement.
Your statement may be amended or supplemented as the case progresses, but it is important that your initial account is as accurate as possible. Have a clear timeline and idea of what transpired. 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 these can be very important. If you made phone calls to the labour ward, tell your solicitor about them and, where possible, obtain any available phone records as soon as possible.
Statements should be as accurate and comprehensive as possible. A witness statement is an important part of the evidence in a clinical negligence claim and may be used at trial. Your solicitor will also need to consider the medical records and obtain appropriate medical expert evidence. An experienced midwife or obstetrician may be asked to provide an expert opinion on the care provided and whether there was negligence.
If they opt not to take the case, then it is perfectly reasonable to try another specialist firm.
Either way, the solicitor assigned to your case should keep you updated on how things are progressing. They will normally send you reports and explain the findings and next steps. It is often the best idea to have a timeframe for the next stage, note it in your diary and do your best to forget it. These cases can take years, so a constant focus on them can be unnecessarily stressful.
Parental psychological/Injury Claim
If the birth was very traumatic for the mother, she may be entitled to compensation for a recognised psychiatric injury caused by negligence. Normally you have 3 years from the event to bring a personal injury claim, although there are exceptions and each case is considered on its own facts. You will usually need medical evidence of the psychiatric injury for a claim to succeed. The initial meeting with the solicitor to discuss your child’s injury is the time to bring this up, as there is a time limit. There must be provable negligence for the case to succeed.
Your child is the ‘primary victim’, but you (the mother) may also have a claim in your own right if the facts establish that you were directly affected by the negligence and suffered a recognised psychiatric injury. Your case may run alongside your child’s case. The rules around secondary victims became much tighter following the Supreme Court judgment in January 2024. Previously, a partner or family member present at a traumatic event caused by medical negligence could potentially claim for psychiatric injury if the legal requirements were met. The judgment in Paul v Royal Wolverhampton NHS Trust significantly restricted secondary-victim claims arising from medical negligence. The rules around primary and secondary victims are complicated, so your solicitor will clarify which category applies to you.
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 strongly advise putting this into your claim at the earliest opportunity. The litigation journey, the effects of the birth injury on your child and the stress on yourself and your family can take a significant toll. If you are suffering psychologically, it is important that your solicitor knows about this from the beginning.
If you miss the 3-year window to claim for psychological injury, you may still be able to access psychological counselling if your child’s case succeeds. If there is an admission of negligence, your solicitor may be able to ask the defence to fund counselling for you on an interim basis. This is not guaranteed, but it is worth discussing with your solicitor. You should also seek appropriate medical or psychological support if you need it, regardless of whether a legal claim is successful.
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. Generally, you have 3 years to bring a case for personal injury, although there are exceptions, and a medical negligence solicitor may be able to assess your case on a no-win-no-fee basis. If the claim is accepted, you would generally be regarded as the primary victim.
This website is dealing only with Birth Injury, but the [Birth Trauma Association] and [AvMA (Action against Medical Accidents)] websites have excellent advice and support for parents affected by traumatic birth and medical accidents.
(Source. Supreme Court.UK/Paul v Royal Wolverhampton NHS Trust
Making a Decision
The solicitor will then request your obstetric/neonatology notes from the hospital, your midwife’s notes and all relevant scans, reports etc, and give the records to their medical experts to look over. Based on the expert evidence, and the solicitor’s assessment of the case, they will decide whether they can offer to take the case on. 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 care given (feeding, washing, dressing etc). All the everyday things that occur with a brain-injured child, over and above what a normally developing child would need.
If the case is successful in the future, you will be asked to provide a list of such expenditure and care, as some of these losses may be included in the compensation awarded at settlement. It is a partial recompense for the time and money you have provided over and above that which a typically developing child would need. It comes under headings such as ‘Past Care and Expenses’.
Some past care and expenses may even be capable of being claimed during the case through an interim payment, depending on the circumstances and whether the legal requirements are met, so it is always worth discussing this with your solicitor. In my ‘Blog’ section I’ve put up a checklist to help guide this process.
Funding the Claim
You will then need to decide how you are going to fund your case. This may be through state-funded Legal Aid, a Conditional Fee Arrangement (CFA) (often referred to as ‘no win, no fee’), or another funding arrangement. The Legal Aid Agency has specific scope, merits and means rules which apply to cases, so not every claim will qualify. There can also be delays or difficulties with Legal Aid funding, and your solicitor will discuss this with you if it becomes an issue.
Generally, a CFA means that your solicitor’s fees are linked to the outcome of the case. The precise terms vary between firms and will be explained to you by your solicitor before you agree to proceed. It is important to understand exactly what you may have to pay if the case succeeds or fails, as ‘no win, no fee’ does not necessarily mean there can never be any costs or financial risks. Some firms may offer arrangements where the amount you have to pay is limited or covered in certain circumstances. Insurance can also help to mitigate some of the risks. I’ve discussed this in more depth in my ‘Legal Agencies’ section.
I would advise discussing with your solicitor which funding option is best for your circumstances. If Legal Aid is refused or is not available, you can ask a solicitor offering a CFA to look at the case and hopefully take it on. If you have Before-the-Event (BTE) legal expenses insurance, perhaps through your home insurance or another policy, this may also provide cover for legal costs, depending on the terms of the policy.
There may also be other funding options, including After-the-Event (ATE) insurance, depending on the circumstances of the case. ATE insurance is often used alongside a CFA to provide protection against certain litigation costs and risks. Your solicitor will go through the available options with you.
(Source Gov.UK Legal Aid)
Gathering of Evidence
If the solicitor takes the case, they will send everything, including your statement and the relevant hospital records, to a number of medical experts. The experts needed will depend on the individual case, but they may include a midwife, obstetrician, neonatologist, paediatric neurologist and radiologist. These experts are expected to be independent and objective, so they are not there simply to support your case, but to examine the evidence and give their professional opinion. Other experts may be instructed further down the line as the case develops.
It can take anything up to a year for some experts to report, particularly where they are in high demand and have long waiting lists. I cannot advise you strongly enough to read these reports when they arrive, note any errors or anything you disagree with, and report these back to your solicitor. I say this from personal experience: we found some serious factual inaccuracies in reports that we initially found too upsetting to read carefully. You know your child and what happened better than anyone, and you may notice something that needs clarification or correction.
It is incredibly difficult to read professional reports about the avoidable harm caused to your child, but it is so important to understand as much as you can about what the experts are saying. You do not need to understand all the medical terminology yourself — your solicitor should explain anything that is unclear and discuss with you anything that you believe is incorrect.
Initial Meeting with Legal Team
Case Management Conference
Once all the 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 may also meet some or all of the experts who have written the reports. These meetings can be in person, on Zoom, by conference call 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 to understand where the experts agree and, importantly, where they may disagree. You may be asked questions, and you can ask questions too, but it’s mostly listening to all the points being made and trying to understand where the case stands but don’t be frightened of asking what something means.
The barrister and solicitor will then consider all the evidence and whether the case has sufficient prospects of success to take forward. This can be a very difficult meeting emotionally, particularly if weaknesses in the case are discussed openly, but it is an important part of making sure you understand the position before proceeding.
If the case is rejected, you are quite free to approach another specialist solicitor and ask them to assess the case. They will need to consider the evidence independently and, if they agree to take it on, discuss with you how the case could be funded, which may include a CFA.
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 believe there has been negligence, and why that negligence caused the injury. The Trust will acknowledge receipt of the Letter of Claim and will normally have four months to provide a detailed response. They may ask for an extension, particularly where the case is complex and they need more time to investigate and obtain expert evidence. Extensions can sometimes be quite lengthy, so it can become a very long process. If the delays become unreasonable, your legal team can challenge this and, where necessary, ask the court to intervene, although the court may still allow additional time. Your solicitor will advise you if the delay becomes a problem.
During this time the Defence will investigate the claim and may commission their own experts to look over the evidence and the Letter of Claim. They may interview witnesses and take statements. Their barrister and legal team will then prepare a Letter of Response to the claim. Once received, this will also be passed on to you. They may also suggest a Joint Settlement Meeting, which can sound counterintuitive and confusing. Your solicitor should write to you and 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 claims are initially rejected, particularly where there is disagreement about whether the care was negligent or whether the negligence caused the injury. Often, they may admit that something went wrong but deny that it caused the injury. It can be extremely difficult to cope with these Letters of Response, but please remember that this is part of the adversarial nature of the legal process. It’s not personal, it’s their job. Please don’t be discouraged at this point. A rejection or partial admission does not necessarily mean that your case is over.
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. They often mention a Joint Settlement Meeting, which is counterintuitive and confusing. Your solicitor always writes a covering letter to explain what this means, and where the case goes from there.
It is also worth knowing that the Clinical Negligence Claims Agreement 2024, introduced by NHS Resolution, places greater emphasis on early disclosure, narrowing the issues between the parties and trying to resolve disputes without unnecessary court proceedings. It encourages pre-action discussions, exchange of relevant evidence and dispute resolution where appropriate. This does not mean your case will be straightforward, or that the Defence will agree with you, but there is an increasing emphasis on resolving claims without the need for a full court case.
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 ask for further Legal Aid to continue the case, if this is not already available. Legal Aid isn’t guaranteed, and there are specific rules around eligibility and the merits of the case. Your solicitor will explain this to you and deal with the application.
The Letter of Response is then sent to the experts to review. They will consider the Defence’s arguments, note any inconsistencies or areas where they disagree, and may revise or update their reports in response. These reports then go back to the barrister, who considers all the evidence and advises on where the case goes from there.
You may have another Case Management Conference to look at the evidence and deal with issues about how the case should proceed. Your barrister may also put together a further letter to the Defence with updated information, particularly if there is a possibility of resolving some or all of the issues without going to trial.
Your barrister will also likely prepare a draft Particulars of Claim. This is a formal court document setting out the precise allegations made against the Defendant and the basis of your claim. It is an extremely important document and will be carefully considered with you and the medical experts before it is filed with the court. Changes to it later may require the court’s permission, depending on the circumstances.
A Joint Settlement Meeting (JSM) may also be requested, in the hope that an agreement can be reached before the Particulars of Claim are formally filed and court proceedings are started. A JSM is essentially a structured settlement meeting where both sides, usually with their legal representatives, try to reach an agreement without going through a full trial.
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 reports are needed, sometimes Legal Aid is refused, sometimes the legal team feel they can no longer proceed, and sometimes the Defence changes its position. There is no single route that every case follows, so your solicitor and barrister will advise you as your particular case develops.
Here are some possible scenarios following the Letter of Response:
Sometimes the case cannot proceed because the legal team considers that the prospects of success are too low. If your legal team are determined to close the case, it may be worth asking another specialist solicitor offering a no-win-no-fee (CFA) arrangement to look at it. People have won cases using this route, although the second solicitor will need to assess the evidence independently and decide whether they are prepared to take the risk.
- Sometimes the legal team are happy with the case and will ask the Defence to attend a Joint Settlement Meeting (JSM). The parties will exchange the relevant expert and witness evidence and try to identify the areas they agree on and those they disagree on, with the aim of reaching a settlement. You may be invited to attend, as may some of the expert witnesses. Your team will usually be in one room and the Defence in another, with the legal representatives moving between them. You will be advised throughout by your legal team. You could have full admissions at this point, or the Defence may argue for a percentage admission. Essentially, this is a structured settlement meeting, rather than a trial.
- Sometimes, following the JSM, the Defence remain adamant that there is no Causation and/or Breach of Duty, and the case reaches a stalemate.
- Provided the case hasn’t been closed and you haven’t reached an agreement, the barrister may ask the Court to set a date for a trial. This isn’t as scary as it sounds: 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 make an offer. They may admit liability in full or offer a percentage admission. Your legal team will advise you on whether an offer should be accepted. If no agreement is reached, or the offer is considered too low, the case proceeds to trial. Your solicitor and barrister will give you an outline of the risks and their assessment of the prospects of success. However, Court is always unpredictable and should be avoided where possible if a reasonable settlement can be reached.
- Very few clinical negligence cases reach a full trial because they are expensive and carry risks for both sides. At trial, the Judge examines the evidence and reaches a decision based on the balance of probabilities, which is a lower standard of proof than the criminal standard of beyond reasonable doubt. You, as the Claimant and a witness, may be asked to give evidence before the Judge. The expert witnesses give their evidence, as do any relevant witnesses for the Defence. The two Barristers will present their respective cases and question the witnesses. The Judge then makes a decision based on all the evidence. The judgment may be given at the end of the trial or at a later date.
- A split trial may occur when the Court decides to deal with different issues separately. For example, it may decide Breach of Duty and/or Causation first and leave the quantification of the claim (how much compensation is payable) to a later stage. This can sometimes make the process more efficient, although it does not necessarily mean that the whole case will be resolved more quickly.
- At trial, the evidence does not always go the way one expects it to, and surprising results do occur. Clinical negligence cases can involve complicated and finely balanced evidence, which is why taking a case all the way to trial can be a significant risk. Your legal team should explain those risks carefully before you make the decision to proceed.
- If the judgment is against you, you may have grounds for appeal, but the barrister would go through this with you and advise you on the prospects of success. An appeal is not a re-run of the original case, and you would normally need permission to appeal.
- The appeal court may allow an appeal where it considers that the decision of the lower court was wrong, or that it was unjust because of a serious procedural or other irregularity (CPR 52.21(3)).
- An appeal notice must normally be filed within 21 days of the date of the decision being appealed, unless the Court has directed a different time period. There are strict rules around appeals, so this needs to be discussed with your barrister promptly.
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.
Sources: NHS Resolution, GOV.UK, Ministry of Justice, MNSI/CQC, HSSIB, Legal Aid Agency
