Birth Injury Claims: Hypoxic Ischaemic Encephalopathy

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.

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.

‘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.

Kingsley Napley’s James Bell has been interviewed by Shelagh Fogarty on LBC radio to give his views, as head of clinical negligence, on shocking evidence that the NHS failed to respond sufficiently to concerns raised by staff - including consultants - regarding neonatal nurse Lucy Letby. Letby has been convicted of the murder of seven newborn babies and the attempted murders of six more. A number of surviving victims have been left with life changing disabilities, including cerebral palsy.

Recent reports from the NHS Race and Health Observatory (an independent body created to examine ethnic inequalities), and the Government’s Healthcare Safety Investigation Branch (HSIB) highlight that ethnic minority babies are at a greater risk of inaccurate assessments, late diagnosis of conditions and poorer outcomes than white babies.

Claiming compensation for ‘lost years’ within cases for personal injury and clinical negligence is an area which many find highly confusing. As it stands the law allows adult and adolescent claimants to recover compensation for sums they would have earned had they not been injured and their life expectancy reduced.

Incidents of babies suffering brain injuries associated with impacted fetal head (IFH) at caesarean section have been rising in recent years with a corresponding increase in claims for medical negligence. Despite this there is no consensus among the medical community about how to manage these births.

According to Carers UK, 1 in 8 of us are providing unpaid care for family and friends. 

The Early Notification Scheme (ENS) is run by NHS Resolution, the organisation which deals with legal claims against the NHS. It was introduced in 2017 to provide a new approach to compensating those who have suffered an injury at birth due to negligence. Traditionally, where a child is injured at birth and the family wishes to pursue a claim they would instruct a solicitor and a legal claim would be started. Such claims can take a long time to resolve issues of liability and incur very large costs.

On 6 July 2021, the Health and Social Care Committee published its report into maternity care in England. The report looks at maternity care across the country and analyses the progress of the Government so far in its commitments to improving maternity care.

Valuing a cerebral palsy case very much depends on the Claimant’s specific injury and needs. We rely on expert witnesses who assess all the ways in which the Claimant’s cerebral palsy affects them, and prepare a report for the Court setting out their opinion and recommendations.

Our clients with Cerebral Palsy tell us that that they are always looking out for new innovative products that open up new opportunities for independence or movement. Matthew Walker took this one step further in 2012 when he wrote to Nike, explaining that of all the challenges he had worked to overcome in his life, tying his shoes was one he had yet to conquer.