Claims for wrongful births can be legally complex. Our associate expert witnesses understand the basis and the scope of these claims when providing both quantum and liability reports for the purpose of wrongful birth claims.
We are able to tailor the expertise required to the specifics of the case, providing experts in ultrasonography, nursing care and midwifery from a liability perspective and care, occupational therapy, physiotherapy and speech and language therapy where the quantum aspect of a wrongful birth claim is involved.
At Bush & Co we acknowledge the range of causation attributed to the term ‘birth injuries’ and understand that although strictly not classed as a birth injury some foetal injuries may only become evident at birth. Birth injuries in general are caused by the mother’s process of labour and the management of her delivery and that subsequently injuries to both the mother and the infant can be sustained.
Typically, these injuries to mother and baby can range from minor physical injuries such as bruising or swelling to more serious injuries.
Birth injury (to the mother) / Injury to the perineum
Women undertaking a vaginal birth may require an episiotomy (a surgical cut to the area between the vagina and anus) to assist delivery. They may also sustain a perineal tear. It is common for the perineum to tear to some extent during childbirth; tears can also occur inside the vagina, the vulva, and labia.
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The Royal College of Obstetricians and Gynaecologists (RCOG) estimate that nine in every 10 first time mothers who have a vaginal birth will experience some sort of tear; for most women these are minor and will heal quickly.
Perineal tears classification
- First-degree: Small tears affecting only the skin which usually heal quickly and without treatment.
- Second degree: Tears affecting the muscle of the perineum and skin. These usually require stitches.
- Third- and fourth-degree tears: For some women (3.5 out of 100 according to the RCOG) the tear may be deeper. Third- or fourth-degree tears, also known as an obstetric anal sphincter injury (OASI), extend into the muscle that controls the anus (anal sphincter). These deeper tears require repair in the operating theatre.
Birth injury (to the infant): Brain injury
The most common cause of prenatal and perinatal brain injuries is hypoxia when the brain is deprived of sufficient oxygen. This can result from conditions related to either the mother or the baby and can happen during transit through the birth canal or through other complications. The brain damage can be mild, and symptoms may not present themselves immediately, but in other cases it can be identified instantly and include signs of cerebral palsy that can lead to long-term cognitive impairments and delays in development.
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Acquired brain injuries (ABI) refer to damage to the brain and can happen at any time in life. ABI at birth are attributable to several factors but can be grouped into two main types: traumatic brain injuries or non-traumatic brain injuries. A traumatic brain injury can be attributed to an external source such as damage to the head due to the use of forceps or vacuum extraction. A non-traumatic brain injury is the result of something happening inside the brain or skull such as a stroke or an infection.
The importance of early notification
The NHS Resolution’s Early Notification scheme is a national programme for the early notification and investigation of birth injuries. The scheme targets quick intervention in the hope a resolution can be found that allows the families and maternity staff affected to get the support they need at the earliest opportunity. In addition to the provision of much needed help and assistance, early notification can potentially moderate litigation and improve practices in the wider medical community through shared learning.
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In the absence of early notification of avoidable birth injuries, families can be left without the support they need and protracted investigations, some initiated years after the traumatic event, prolong the stress for medical staff and increase the likelihood of higher costs associated with formal litigation in the courts.
The role of an expert witness
An expert witness midwife applies a helicopter view to determine the basic elements of who, what, where, and why, engaging a full risk assessment, study of medical records, case notes, and other relevant materials, and their own professional experience to confirm critical actions and timings to complete their report.
Labour wards can be hectic environments and the quality and completeness of documentation can be as rich of source of information as the detail they contain when interpreted objectively.Andrea Holton, Midwife
A thorough evaluation of the key criteria of Quality, Safety, and Experience in relation to mother, baby, and all other relevant parties will help expose a clear picture of the level of care administered during labour and birth. Studying documentation will reveal answers to some fundamental questions and timings, such as results for cardiotocography (CTG) monitoring and Agpar testing, with accurate and complete notes helping to answer other basic questions:
- What factors were present during labour and what actions were taken in response?
- What issues, if any, occurred? If any, were they observed, or was action taken? What action and why?
- What was the speed of reaction to identify, assess, and resource potential issues? Was it active or passive?
- Who was requested to help respond to any issues? Did they respond? When?
Our midwives are experienced in examining the birth injury event in context, looking at medical and environmental considerations to establish whether wider influences related to human factors or culture may have been contributors:
- What were the human interactions that contributed to specific actions being taken?
- Did the culture promote the asking of help when needed, or did staff hesitate?
- The quality and quantity of notes can give an insight into many factors including leadership style, process efficiency, and staffing levels.
- Is there sufficient experience and knowledge in the team? Did the mother and baby receive the appropriate level of care?
- Do staff feel valued and are their efforts recognised?
- What guidelines were in place – different interpretations and terminologies exist between those issued by the National Institute for Health and Care Excellence (NICE) and the Institute of Clinical Excellence (ICE) which could have contributed to different decisions being taken. Are the same guidelines still in use? If not, when were they changed?
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