Medical Negligence Claims

Whilst many stillbirth and neonatal deaths cannot be avoided, some are sadly caused as a result of medical negligence. A poorly managed pregnancy or child birth can have a devastating and life changing physical and psychological effects on a mother, baby and wider family.

The following are examples of different types of medical negligence cases:

Pregnancy:

  • Failure to diagnose problems in an unborn child
  • Failure to diagnose or manage Gestational Diabetes
  • Failure to diagnose or manage Pre-Eclampsia
  • Failure to diagnose Uterine Abruption
  • Failure to diagnose Placental Abruption
  • Failure to diagnose or treat an Ectopic pregnancy

Child Birth Injury:

  • Second degree tears
  • Third degree tears
  • Fourth degree tears
  • Injury caused by forceps delivery
  • Injury caused by ventouse delivery
  • Failure to carry out or properly interpret a CTG
  • Failure to carry out a Caesarean section in a timely manner
  • Problems following a Caesarean Section
  • Negligently performed or repaired episiotomy
  • Anaesthetic problems , for example following an epidural

Injuries to Babies:

  • Cerebral palsy or other types of brain injury caused by oxygen deprivation
  • Erb’s Palsy (brachial palsy)
  • Facial paralysis
  • Infection
  • Spinal cord injuries
  • Nerve damage
  • Hypoglycaemia (low blood sugar)
  • Failure to diagnose a prolapsed umbilical cord

Post and Neo Natal Complications

  • Retained placenta
  • Jaundice
  • Congenital hip dysplasia

Whilst the majority of post mortems are inconclusive with no known cause of death being found, some known causes of stillbirth and neonatal death are as follows:

  1. Congenital Malformation
  2. Infection
  3. Maternal health problems such as Pre-Eclampsia or Gestational Diabetes
  4. Incompetent Cervix
  5. Placenta and Umbilical cord (Placental Insufficiency, Twin to Twin Transfusion Syndrome, Placental Abruption, True Umbilical Cord Knots
  6. Intrauterine Growth Restriction (IUGR)
  7. Meconium Aspiration
  8. Premature Rupture of Membranes (PROM)

For the avoidance of doubt –  just because a condition is known to cause stillbirth does not necessarily mean that you cannot pursue a claim for compensation if the risk does in fact materialise.

Although rare, sometimes mistakes can occur with the mismanagement of labour which can lead to a stillbirth or neonatal death, in particular:

  • A failure to carry out or properly interpret a CTG
  • Delay or failure to perform an emergency c-section
  • Poor staffing during labour
  • A failure to escalate concerns to a senior member of staff at the appropriate point during labour

FAQs About Medical Negligence Claims

Are There any Time Limits?

Yes. In cases involving a tragic death, you have three years from the date of death in which to bring a claim. In cases involving injury, you have three years from the date of the alleged act of negligence or when you knew or ought to have known you had sustained injury as a result of it, if later, in which to make a claim. After the three year period, you will be statue barred from pursuing a claim and only in exceptional circumstances will the Court allow the claim to proceed out of time.

What Do I Need to Prove?

In order to bring a successful claim, you need to prove that:

The standard of care fell below that of a reasonably competent practitioner (Breach of Duty) AND THAT harm was suffered as a result (Causation)

Do I Need to Make a Formal Complaint to the Hospital Before Contacting a Solicitor?

No. Depending on the circumstances of the claim, a Solicitor may be able to assist you in writing a complaint to the hospital. In some cases, a Solicitor will decide not to pursue the complaints procedure.

How are Medical Negligence Cases Funded?

The majority of cases are funded by way of a “No Win No Fee Agreement”.

If a Solicitor agrees to take my cases on, what happens next?

If a Solicitor agrees to take your case on, the next step is to obtain your hospital and GP records. Your records will then be sent to an independent expert (midwife and/or obstetrician and/or paediatrician) for their opinion. Every case is different and what a Solicitor does after receiving the initial report(s) very much depends on the nature of the claim. No two cases are ever the same.

You are entitled to obtain copies of your medical records from the hospital should you wish to do so before instructing a Solicitor. A maximum fee of £50.00 per set may be charged. To obtain copies of medical records, a request must be made in writing, addressed to the Access to Information Department. Each hospital has information on their website but for more general information, please see http://www.nhs.uk/chq/pages/1309.aspx?categoryid=68. You are also entitled to request copies of your GP records. A written request should be made to the Practice Manager.

Will I Have to Give Evidence in Court?

Very few medical negligence claims make it to that stage as the case is either settled or, in some cases, a decision is reached with the client, the legal team and the experts that the case no longer has sufficient prospects of success.

How Long Does a Successful Medical Negligence Case take to Finish?

Approximately 2-3 years.

Complaints

If you are unhappy with the care that you or your baby have received, you are entitled to make a formal complaint in writing.

Who Do I Send the Letter of Complaint to?

This letter should be sent to the Chief Executive of the hospital that you wish you to complain about. If the complaint concerns care provided by a GP, a written complaint should be sent to the Surgery, addressed to the Manager. If your complaint concerns more than one organisation, only one letter needs to be sent. The organisation who receives the complaint will liaise with the other hospitals/surgeries.

What Do I Put in the Letter of Complaint?

The letter of complaint should give a brief overview of events and list a set of questions for the hospital/surgery to answer.

How long do I have to make a complaint?

Complaints should normally be made within 12 months of an incident.

Can I Complain on behalf of somebody Else?

Yes. If you are complaining on behalf of someone else, include their written consent with your letter (if you are making your complaint in writing) as this will speed up the process.

How Long Does it Take to Receive a Response?

There is no set time frame for the time required to respond to a Complaint. Every hospital/surgery deals with Complaints differently. If you are invited to meet with the various health professionals, it is within your rights to request that the meeting be recorded.

What if I am Not Happy With the Response?

If you are not happy with the response provided, you can complain to the Parliamentary & Healthcare Ombudsman.

Where Can I Find More Information?

For more information, please see:http://www.nhs.uk/NHSEngland/complaints-and-feedback/Pages/nhs-complaints.aspx

Root Cause Analysis Investigations (RCA)/Serious Untoward Incident (SUI)

What is an RCA/SUI?

An RCA/SUI is an adverse event where the consequence is so significant that an investigation is warranted. They allow a hospital to find out why the adverse event happened and what lessons can be learned for the future to prevent the adverse event from occurring again.

An adverse event is any event where a patient could have been significantly harmed or has suffered significant harm.  The reporting of these incidents is to help protect patients from avoidable harm by increasing opportunities to learn from mistakes and where things can go wrong.  The NHS uses these reports to identify and take action to prevent emerging patterns of incidents on a national and a local level via patient safety alerts. An example of an adverse event in this context would be a placental abruption (resulting in a stillbirth) that occurred whilst the mother was an inpatient that perhaps could have been avoided.  The patient is reliant on the  hospital to report the incident and to conduct the RCA; it is at their discretion.  Occasionally, a complaint made by the patient can lead to an RCA being carried out but generally speaking, if an event isn’t deemed necessary by the hospital (i.e. it doesn’t meet the criteria set out in the guidelines), an RCA won’t be carried out at the request of a patient unless something has been overlooked. If a patient is adamant that an RCA should be conducted by the hospital, there is certainly no harm making a request and finding out why the hospital doesn’t deem one appropriate.

What Happens During an Investigation?

The way in which an investigation is carried out, differs from hospital to hospital. Some investigations are internal whilst some hospital chose to outsource the task of overseeing an investigation to Doctor who doesn’t work for the Trust in which the adverse incident occurred. The relevant NHS bodies are notified when an SUI has occurred. The process normally involves a review of the medical records, the taking of Statements with the purpose of finding out why the adverse event happened.

Are the Victims of the Incident Consulted?

The key principle applied to investigations across the NHS is that they should be “open and transparent” – the needs of those affected is paramount. The Guidelines state that those affected just be supported and involved throughout the investigation.

How Long Does an Investigation Take?

The length of an investigation differs from hospital to hospital and depends on the nature of the incident. They are normally concluded within three months.

What Happens Following an Investigation?

Once a Report has been completed, the relevant NHS bodies are provided with a copy and the hospital is audited to ensure that the action plan is completed and that any recommended changes are in place.

Where Can I Find More Information?

For more information please see https://www.england.nhs.uk/patientsafety/serious-incident/

With thanks:

Amy Bennett, a medical negligence Solicitor from Gregory Abrams Davidson LLP is very passionate about assisting bereaved parents who have experienced the devastating loss of a stillbirth or neonatal death. Following the stillbirth of her eldest daughter, Arella, on 30 June 2012, she has created a specialist website. Please see www.stillbirthclaims.co.uk and https://www.gadllp.co.uk/family-home-and-personal-law/medical-negligence for more information.