Birth Injury Claims: Hypoxic Ischaemic Encephalopathy

Arriving hot on the heels of Donna Ockenden's report highlighting the scale of problems at Nottingham University Hospitals NHS Trust, the final report from the national investigation into maternity and neonatal care led by Baroness Amos is bleak indeed. The review investigated 12 NHS Trusts and considered the experiences of thousands of women, their families, and hospital staff. The findings are stark, with Baroness Amos stating "we cannot continue like this" …"there is absolutely no justification for the tragic cases of unsafe care and avoidable harm we continue to see in England." Having acted for children and mothers injured as a result of poor care for over 30 years, I find the lack of progress shocking. I would not have believed at the start of my career that maternity services would be in the state that they are now.

After four years, the much-awaited government-commissioned independent review of maternity services at Nottingham University Hospitals NHS Trust has been completed and published. Led by Donna Ockenden, the review was prompted by significant concerns about the quality and safety of maternity services at the Trust.

I am extremely pleased to see the continuing roll-out in the UK of Martha’s Rule (see our previous articles on this topic here, here and here) and that a recent NHS England report demonstrates that the rule is having a very positive impact. Patient empowerment and clear communication, the embodiment of this rule, are critical components in avoiding medical accidents and poor outcomes. I am particularly keen to see the implementation of this rule being extended to maternity and neonatal settings, an area where, as a specialist birth injury lawyer, I see avoidable harm all too often.

This year, World Cerebral Palsy Day falls on 6 October with a theme of ‘#Unique and United’. The Kingsley Napley Medical Negligence and Personal Injury team strongly support the vision of this global movement - which is about recognition of the 50 million people who are living with cerebral palsy and striving for a more accessible and inclusive world.

Legal claims for hypoxic brain injuries during birth – caused by a disruption in oxygen supply - remain prevalent. These injuries can have a devastating impact and lead to lifelong conditions including Cerebral Palsy. Indeed, claims relating to brain injuries sustained during birth account for a significant percentage of the total value of clinical negligence damages paid out each year. This is because the average amount of damages for such cases is very high, not infrequently running to tens of millions of pounds, with some impacted children having lifelong needs for care, treatment, equipment and housing. Nonetheless, claims for clinical negligence in this area can be particularly thorny to prove. In this article I consider when the doctrine of ‘material contribution’ – said by the Court of Appeal to have been ‘bedevilled by apparent inconsistency’ – may apply to hypoxic birth injury cases where the window for avoiding injury can be short. Does every minute really count?

The Government has this week confirmed the names of 14 Hospital Trusts that will be part of a rapid national investigation of maternity and newborn baby care across England that was announced by Wes Streeting back in June. (See my colleague Sharon Burkill’s blog on that announcement here). I am carefully watching the developments with regard to this investigation, knowing full well from my clients and their stories how desperately improvements to our maternity services are needed.

We were delighted to take part in a 15km walk on Saturday 6 September for the Dame Vera Lynn Children’s Charity (DVLCC) to raise funds for this excellent cause. 

The Health Services Safety Investigations Body (HSSIB) has shared insights into safety concerns raised by women and families and other stakeholders about maternity and neonatal care within NHS England, highlighting once again the need for meaningful change.

Each year NHS Resolution, the body dealing with legal claims against the NHS, produces a report which provides insights into what is happening with clinical negligence claims. This year the picture is very mixed. It shows that claims for clinical negligence are on the rise although more cases are being settled without the need for Court proceedings. Nonetheless, despite Government efforts, high levels of maternity cases and associated costs persist.

Concerns over NHS maternity care are very sadly seldom out of the news. As a lawyer who has specialised in birth injury claims over many years, it has been all too clear to me for a long time, that far too many women and babies, fail to receive anywhere close to adequate maternity care leading in some instances to devastating outcomes.

New data from the UK Health Security Agency (UKHSA) shows a significant rise in cases of invasive meningococcal disease (IMD) across England during 2022/23 compared with the previous year. Meningococcal disease is the collective name given to disease caused by Neisseria meningitidis. Infection with this bacteria can result in either meningitis or septicaemia (commonly known as blood poisoning) or both.

Immediate action to improve maternity care in the UK is undoubtedly needed and this week the Government has announced the launch of a pilot programme to help reduce avoidable brain injuries in childbirth.

Maternity care in England is coming under yet further fire in the form of a report from the Care Quality Commission (CQC). The report reveals that of the 131 maternity units inspected during the last two years almost half were rated inadequate or requiring improvement.

Concerns about maternity services in the UK are never far from the headlines and the urgent need for improvement is widely acknowledged. This month sees a new Care Quality Commission (CQC) report rating the safety of maternity services inadequate within Bedford Hospitals NHS Foundation Trust and highlighting concerns surrounding midwife shortages.

Twelve vital recommendations are at the core of a new report by the All-Party Parliamentary Group on Birth Trauma . Of these, three particularly stand out for me, as a specialist birth injury solicitor, although they may not at first sight seem the most urgent to implement. In no particular order, these are:

- Providing support and updated information for fathers;

- Funding for interpreters with expertise in maternity; and

- Extending the time limit for bringing a legal claim relating to childbirth.

I have long campaigned for the duty of candour, believing it is the only way to truly have an open dialogue that allows everyone to understand where something has gone wrong, and for systems to be put in place to prevent the same thing happening again.

Sodium valproate (brand names include Epilim and Depakote) is a drug to treat epilepsy, bipolar disorder and migraines which, if taken in pregnancy, is associated with a significant risk of birth defects and developmental disorders often known as Fetal Valproate Syndrome (FVS). 

As the evidence of failing maternity services appears to be mounting, the Government is now pledging to prioritise improvements to maternity care as part of it’s womens health strategy  for 2024.

As a lawyer specialising in claims for babies who suffer severe injuries at birth and in the neonatal period, I am extremely saddened that cases are still coming to light where babies are not given vitamin K following birth. Errors such as those highlighted in the recent inquest into the death of seven-week-old William Moris-Patto - where his medical record erroneously stated he had been given the supplement when in fact it had not been administered - are extremely concerning.

‘One of the most devastating complications that can result from medical mismanagement during labour and delivery is hypoxic ischaemic encephalopathy’ (K McCombe and D G Bogod).

Hypoxic Ischaemic Encephalopathy (HIE) is a term used to describe brain damage caused by a lack of oxygen (hypoxia) and / or a diminished amount of blood reaching a baby’s brain. HIE can occur during pregnancy, birth or shortly thereafter.