A birth injury is an injury to a mother or baby shortly before, during or just after the baby is born. A birth injury is not the same as a birth defect, which is damage caused to a foetus in the uterus.

Examples of birth injuries caused to babies include:

• Brain injuries , including Hypoxic Ischaemic Encephalopathy; brain haemorrhage; Cerebral Palsy (CP)

• Serious birth injuries , including broken bones, lacerations or skull fractures; brachial plexus, Erb’s palsy, Klumpke’s Palsy and shoulder dystocia

• Stillbirth or neonatal death

Every brain injury is different and different types of brain injury have different signs and symptoms. In serious cases of brain injury, it can take doctors some time to determine the extent of the damage. 

An acquired brain injury is when the brain injury has occurred since birth.  This includes: 

• Brain tumours – the effect of a brain tumour depends on the size and location of the tumour and how much it has spread
• Bleeding in or around the Brain (a brain haemorrhage), for example, as a result of a ruptured aneurysm; or a (haemorrhagic) stroke
• Inflammation of the brain, e.g. encephalitis / meningitis
• Hydrocephalus (also called “water in the brain”) – this is a build up of fluid inside the skull, which increases pressure and causes damage to the brain 
• Stroke – both an ischaemic and haemorrhagic stroke disrupt the blood supply to the brain

A traumatic brain injury is when the brain is damaged by external physical force. Injuries that can cause a traumatic brain injury include:

• Concussion
• Skull fracture
• Contusion (bleeding on the brain)
• Diffuse axonal injury (skull rotation).

The majority of brain injury claims focus on:

• Delays in diagnosis and treating brain tumours, brain haemorrhages, hydrocephalus, strokes and infections such as encephalitis and meningitis
• Not identifying and treating conditions that significantly increase the risk of stroke
• Delays in identifying shunt malfunction

Inquests into a death are held if the cause of death is unknown or if the death was unexpected, sudden or suspicious. Inquests are held at the Coroner’s Court, where the Coroner will look at evidence to determine how, when and where the person died. 

At the inquest, the Coroner’s job is to establish the facts about the death. During an inquest, the Coroner may:

• Call individual witnesses to give evidence (for example, doctors or nurses)
• Ask the family to talk about the deceased (for example, their family life and work)
• Call specialist witnesses to give evidence (such as medical experts).

At the end of the inquest, the Coroner will make their decision. This is shown on the death certificate. 

Any medical provider must, by law, give you information that’s relevant to your proposed treatment or medical procedure as well as any other treatment options.  This is so that you can give ‘informed consent’ and make a decision for yourself whether you want to proceed, based on all the facts.

You should be told:

• The diagnosis 
• The prognosis if the condition is untreated
• The options for treatment, including:
  • the nature of the treatment (what is involved); 
  • the risks that you are likely to consider significant of each option; and 
  • the benefits of each option, including how likely it is that each will be successful

In addition, the doctor must answer any questions which you ask.

If the medical staff in the NHS Trust are found to be have been negligent, the ENS will give the family a formal written apology. In addition, a package of financial support and advice regarding next steps in caring for the child will be agreed. If you have been contacted in relation to the ENS, it is vital that you seek independent, specialist legal advice. Our lawyers at Tees can provide you a wide range of support and guidance during the process. At Tees our team of experts will:

• listen to you
• ask the hospital questions about what exactly happened
• obtain medical records and reports from medical experts
• negotiate a financial settlement suited to your child’s needs
• provide practical advice and support networking regarding the care of your child
• provide financial support to manage the compensation to secure the needs of your child for the whole of his or her lifetime.

No. There are three categories that the ENS can work on:

1. grade 3 Hypoxic Ischaemic Encephalopathy (HIE) – which is if the baby’s brain is deprived of sufficient oxygen and blood flow;

2. babies who were therapeutically cooled by a clinician using active cooling – this can prevent HIE by lowering the baby’s temperature to 33 degrees Celsius; and

3. circumstances in which the baby is comatose or has seizures or has hypotonia (decreased muscle tone), which can cause them to be ‘floppy’.

Information about the categories are available on the NHS Resolution website, here.

Cerebral palsy is a common birth injury in the UK, but it is complex to diagnose its cause. Cerebral palsy may be diagnosed as a result of one of the circumstances listed in the three ENS categories, but at least one of those must be present for the ENS to apply.

Cerebral palsy is caused by an injury to the brain which can occur: if the brain fails to develop normally in the womb; or if there is a problem during the birth, or just after the baby is born. Establishing the precise cause of cerebral palsy is complex, and you should always seek specialist legal advice if your child has suffered a brain injury around the time of his or her birth.

If this has happened, it is because the brain injury that your child suffered at birth, wasn’t within one of the three categories that the ENS covers.  However, this is not a barrier to making a medical negligence claim. 

Call us so we can help you find out what happened, and if there are grounds for a medical negligence case, claim for financial compensation to support you and your child.  

If your baby has sustained a brain injury, this is of course extremely upsetting. While compensation cannot directly make that better, it can help immensely with the practicalities of day-to-day life. Once funds have been secured, you can pay for the care you child will need, which is likely to include: 

• Medical treatment and/or physical therapies 
• A package of care 
• equipment, such as a wheelchair or specialist computers for communicating
• Building work to adapt your house so it is suitable for your child’s needs, so that they can move around freely as they grow older.

The NHS Early Notification Scheme was introduced in 2017 by NHS Resolution, a legal division of the NHS that work on complaints and claims for medical negligence.

The intention of the ENS is to investigate what happened when a child suffers a potentially serious brain injury around the time of his or her birth. The aim is to do this quickly when memories of the events are clear in people’s minds, and in turn to reduce stress on the families concerned.

Doctors and other medical staff must report any case of a child being born in circumstances which could cause a brain injury, to their hospital’s legal team where the birth occurred. The case is then referred to NHS Resolution. If the case fits the criteria, it will be investigated under the ENS. Even though the intention is for investigations to take place as quickly as possible, unfortunately they can take a long time due to the complexities of each individual’s case.

If the medical staff in the NHS Trust are found to be have been negligent, the ENS will give the family a formal written apology. In addition, a package of financial support and advice regarding next steps in caring for the child will be agreed. If you have been contacted in relation to the ENS, it is vital that you seek independent, specialist legal advice.