Birth Injuries Solicitors: How do I bring a claim for Maternal Birth Injuries in Ireland?

Injuries that happen during childbirth can leave you with physical and psychological trauma that can last a lifetime. Every mother is entitled to a good quality of antenatal care and your midwife, nurse or doctor should detect any signs which could lead to a birth injury.

Maternal injuries can happen naturally but, unfortunately, medical professionals don’t always take the precautions needed to reduce your risk of injury.  We have a lot of experience of birth injury claims and could help you if the person or organisation treating you didn’t:

• Recognise potential risks of injury during antenatal examinations
• Receive appropriate management of your pregnancy
• Receive appropriate management of your labour and delivery
• Provide a caesarean section or episiotomy in suitable scenarios
• Give you adequate treatment after suffering a birth injury.

What types of maternal birth injury claims can be brought?

Mismanagement of the Pregnancy

Medical negligence during pregnancy often involves a failure to diagnose conditions in the baby or the mother. Obstetricians must properly screen the mother during pregnancy for high-risk conditions, such as preeclampsia, diabetes, and maternal infection, to help ensure a safe childbirth. Failure to treat these conditions can cause the mother serious harm, such as liver failure, heart issues, or seizures during pregnancy and delivery. Additionally, this can lead to childbirth complications resulting in a permanent brain injury to the baby.

Pudendal Nerve Injury

During a vaginal delivery, the pudendal nerve stretches. Usually, this resolves itself within a couple of weeks after delivery, but for some women, particularly those who have had a difficult labour, the pudendal nerve can become permanently damaged, resulting in pain, pelvic floor weakness and sometimes incontinence.

You may have a medical negligence claim if your labour was mismanaged and involved a difficult delivery, or your baby should have been delivered by Caesarean section and was not and, as a result, you suffered pudendal nerve damage.

Pudendal nerve damage can occur at the same time as 3rd or 4th degree perineal tears which are not properly repaired and are therefore mismanaged. Unlike tears, however, nerve damage cannot be repaired.

Complications Caused by Delivery Using Forceps

When forceps are used, as many as 37.2% of newborns and 58.1% of mothers experience varying degrees of complications. Forceps are used when the baby has descended head-first into the birth canal, but the mother needs assistance moving the baby out of the birth canal. This could be due to the following reasons:

• Labour has stopped progressing despite a prolonged period of pushing
• Maternal exhaustion or an epidural has prevented effective pushing
• Maternal medical contraindications to pushing exist
• Fetal distress necessitates a faster delivery than pushing alone can produce

Forceps should be used only in facilities that can perform caesarean sections, in case of complications.

Abnormal Bleeding caused by Medical Negligence

Blood loss is a normal occurrence after giving birth. Usually, a woman would bleed for about 2-6weeks after the child is born. Vaginal bleeding only becomes a cause for concern when a woman experiences abnormally heavy bleeding over a prolonged period, which may result in fatal conditions. There are two types of postpartum haemorrhage (PPH) namely; primary or immediate PPH and secondary or delayed PPH. The former involves heavy bleeding within 24 hours of childbirth; the latter, which is more severe, involves heavy bleeding for weeks after the baby’s birth.

Your Midwife or Doctor as a trained professional owes you the duty of care to recognise situations where you may be at high risk of suffering a PPH and take necessary steps to reduce the chance of haemorrhage or treat it as quickly as possible.

Perineal tears are a natural part of the normal birthing process and cannot be avoided. However, some of these tears can be caused by the negligent use of equipment during labour. When Perineal Tears happen they should be treated quickly to avoid undue pain and suffering or potential complications like infections. Generally, vaginal tears are categorized as 1st Degree, 2nd Degree, 3rd and 4th Degree tears with increased severity of injury as the degree gets higher.

Perineal tears during birth

First Degree tears which are usually only skin deep, have the best chance of quick recovery. Second-degree tears are intermediary and usually require stitches and a few weeks to heal. Third and fourth-degree tears on the other hand are the most serious type of vaginal tear that results in the damage of the anal sphincter and muscles of the anus.

This could leave the woman affected with the following embarrassing, distressing and debilitating symptoms:

• Wind incontinence
• Faecal incontinence
• Extreme urgency when needing the toilet
• Perineal infections

In the long-term these symptoms can cause physical, psychological and financial difficulties. The woman may be unable to return to work and find it hard to leave her home for fear of a bowel ‘accident’ occurring.

A ruptured uterus or prolapsed uterus

Ruptured uterus and prolapsed uterus are some of the complications that may arise during pregnancy. Failure to diagnose and treat promptly can pose potential life-threatening conditions to both mother and the baby.

Injury to the Bladder

There are times when a bladder injury sustained during c-section can amount to medical negligence. Firstly, if there is not an abnormal anatomy but the bladder is still cut, it will be deemed an unacceptable complication. For example, if an obstetrician simply fails to recognise the anatomy (which is not abnormal) and makes an incision through the normally situated bladder into the vagina, this will amount to medical negligence.

Secondly, a negligence claim may arise if a bladder is damaged during the operation, but is not identified at the time. This will cause a woman to have a number of serious complications, including blood clots, haemorrhage, sepsis and infection. It is likely secondary surgery will also be required.

Pelvic Injuries during Birth

If your vaginal delivery was complicated, involved severe tearing, the use of forceps or where medical practitioners failed to recognise you were carrying a heavy baby, you may have a negligence claim against those involved.

Incorrect Caesarean Section

If prior to, during or after a caesarean, the mother or child have experienced avoidable physical or psychological trauma, then they could be victims of caesarean section negligence. Some common examples of caesarean section negligence that mothers and babies may face include:

• The medical team failing to decide to perform the caesarean section in a timely manner, or at all, resulting in injuries
• Errors made during the caesarean section causing physical harm
• The mother or child experiencing an infection post-surgery that the medical team fail to diagnose and/or correctly treat
• Incorrect Stitching following Caesarean Section

Preeclampsia or Eclampsia

Preeclampsia is a serious condition if it is undiagnosed. It can affect women during the second half of pregnancy with symptoms such as high blood pressure, high levels of protein in urine that indicate kidney damage and proteinuria for example. However, if medical professionals follow proper procedures the condition can be detected quite easily. However, if a medical professional is careless or fails to follow proper procedures, preeclampsia can be missed. The consequence of this can be very severe including long term disability to mother and child.

They are a number of reasons that can contribute to a medical professional’s negligence resulting in undiagnosed preeclampsia. Each case has its own individual factors that can have a significant impact on the severity of the injury caused.

The reasons for  medical negligence are varied and are specific to each case. Some common reasons for preeclampsia compensation claims include:

• Failure to properly examine you during the antenatal period
• Failure to Investigate during the antenatal period
• Lack of Expertise
• Understaffing of maternity wards
• Many of the above reasons can result from a medical practitioner not being appropriately qualified to identify and diagnose preeclampsia during the antenatal period.

Surgical Instruments Left Inside Mother

These types of mistakes are usually classed as “Never Events”. Simply, an event that is non-excusable and should never happen. A Doctor or Midwife who has left a surgical instrument or any other foreign object inside the body of a mother during childbirth should be held accountable as he/she has acted negligently.

Wrongful Death of the Mother During Childbirth

Whilst it is a very rare event that a mother dies during or shortly after childbirth, it sadly does occur. If the death is because of negligence, then it is described as a wrongful death. This can occur when there has been excessive blood loss (haemorrhaging), surgical mistakes, pre-eclampsia, anaesthetic mistakes, or possibly uterine rupture. If this occurs, then it is likely that the Coroner will hold an inquest to determine the cause of death and a fatal claim can be taken.

Whom Can I Claim Against?

You can claim against Obstetrician or Midwife personally if they are not covered by the Clinical Indemnity Scheme. In private care, the Obstetrician is usually self-employed and will carry their own insurance. Midwives are almost always covered by the Clinical Indemnity Scheme – this is the insurer for public hospitals.

The Medical Practitioners Act 2007 includes Obstetricians and Midwives as legally recognised medical practitioners in Ireland. They are required to practice to the highest medical standard. Because Obstetricians and Midwives are considered medical practitioners, you will have to pursue your claim through a solicitor, as it will not go through the Injuries Board.

How long do I have to bring a claim?

The time limit for maternal birth injuries negligence claim is generally two years from the time of the alleged negligence. However, there are exceptions to this rule. Read on to find out more about the statute of limitations in respect of medical negligence claims.

Exceptions for Medical Negligence Legal Time Limits In Ireland

A patient may not be aware on the date of the alleged negligence that any negligence occurred. The person then arguably has two years less one day from the date of discovery of the alleged negligence. This could, for example, occur at a follow-up appointment when the patient discovers information about the origin of the negligence. Or indeed, it may not occur until the patient is in possession of a copy of his or her medical records. It is important to note that the date of discovery is the date the victim has constructive knowledge of the alleged medical negligence, in other words, when the victim should have known about it and taken legal advice.

How to Make a Claim for Maternal Birth Injuries?

If you are unhappy with the treatment that you have received in relation to your pregnancy and/or delivery and labour, you may wish to contact a solicitor who is an expert in the field of medical negligence to investigate your case. You should always consult with a solicitor who has expertise in the area of medical negligence as this is a complex area of law, and you should be led by someone with expertise.

1. The first thing we will do is arrange for you to come in and meet us for a consultation. We will take down the history of treatment and your complaints.   We will then advise  you whether it is worth pursing a claim.
2. The next thing we will do is take up a copy of your obstetric records, and where necessary your medical records. We have the experience and expertise to review the records and give you a preliminary opinion on whether you are likely to establish a case of obstetric negligence.
3. If we are of the opinion that there may have been negligence on the part of the practitioner who treated you we will identify and instruct an appropriate independent expert to carry out a report to consider whether the treatment that you have received is below the standard of care that should normally be applied.

Establishing Negligence

Obstetric negligence means that the treatment that you received is below the standard of care that one would ordinarily expect to see that a patient should receive from an Obstetrician and / or Midwife. If the independent expert report supports this opinion then you are entitled to bring a claim for negligence, however it is also necessary to show that you suffered an injury because of the negligence, and this is known as causation.

Establishing Causation

It must then be considered that due to the negligent medical treatment that you have received your recovery has been delayed or you have suffered further injury and sustained a loss. The Expert Report will also need to support this.

Before issuing proceedings in an obstetric negligence claim, we must have a positive independent expert report from a practitioner of equal specialisation who finds the treatment that you were provided with fell below an acceptable standard of care, and because of this you suffered an injury.

What happens next?

When we issue proceedings the insurer for the Obstetrician or Midwife or Hospital will instruct solicitors. We may need to take up further reports, on your condition and prognosis. With very serious injuries, particularly obstetric injuries that may result in nerve damage, bowel and or bladder damages, it will necessary to consider whether you are still able to work, whether you can still carry on with all of your previous activities of daily living. We will identify the appropriate expert who will assess you and they will provide us with a Vocational Report if you are claiming for future loss of earnings. We may instruct an Occupational Therapist, a Care Expert, a Psychiatrist if the injury has had a psychological impact on you. It may even be necessary to instruct Architects in situations where the injury is such that your home is no longer suitable to you because of your injuries.

Will I have to go to court if I bring an obstetric negligence claim?

The majority of these cases settle outside of court. This is because we will not proceed with a case unless we are confident that you will win and therefore settlement usually occurs without having to go to court. However, going to court is always a possibility you must be prepared for.

We actively promote the use of mediation in clinical negligence cases as an alternative means of dispute. In a mediation, the parties are given the opportunity to exercise control over how their case is decided. However, much like a trial, mediation presents an opportunity for parties to present their side of the dispute and be heard by a neutral party.

What is mediation?

Mediation is legislated under the Mediation Act 2017.

Mediation is where an agreed independent mediator is assigned by the parties in order to help the parties resolve the claim. The mediator’s role is not to comment on evidence or to hand down a judgement. Instead, the mediator plays an impartial role and helps parties break down the issues in dispute and to assist the parties to reach an agreement.

Mediation is a confidential, facilitative and voluntary process in which the parties involved in the dispute, with the assistance of a mediator attempt to reach a mutually acceptable agreement to resolve the dispute. As part of the process the experts will also confer in a confidential manner and all communications are considered confidential and not admissible in evidence.

What are the benefits?

Mediation is very beneficial to plaintiff’s in medical negligence matters as there is no requirement in mediation for plaintiffs to give evidence or face the defendant, which is usually a traumatic and emotional experience in a court setting.

Mediation is also very cost effective, as no expert or lay witnesses are required, and the plaintiff avoids paying legal fees for a what could be a lengthy hearing.

How much compensation will I get for my injury?

This varies very much from case to case as it will depend on the severity of your injury, whether it is permanent, and how it has affected your life. You can claim for general damages which is compensation for your pain and suffering, but you can also claim for special damages and these are the financial costs resulting from the injury caused. This may cover costs already incurred, such as transport, accommodation, and medical treatment, and expected future expenses such as further medical treatment and loss of earnings. The damages you receive will be based on the precise injuries suffered, the circumstances of the case and with reference to the Personal Injuries guideline and established case law.

Medical Negligence Solicitors Ireland

We represent clients in medical negligence cases from all over Ireland and not just medical negligence cases in Dublin. We can accommodate virtual meetings if you have difficulty travelling.