Jaundice or Kernicterus Legal Claims: My Baby’s Jaundice was not Treated

Where jaundice is not effectively managed by medical staff, families may be able to make a Kernicterus claim if this more serious condition develops as a result. Expert legal advice will be required to make a successful Kernicterus claim.

Jaundice occurs when the chemical bilirubin builds up in a baby’s blood. Bilirubin is a yellow substance produced when red blood cells break down. During pregnancy, the mother’s liver removes bilirubin for the baby. After birth, the baby’s liver must remove the bilirubin.

In some babies, the liver is not sufficiently developed to get rid of bilirubin efficiently. When too much bilirubin builds up in a new-born’s body, the skin and whites of the eyes might look yellow.

As new babies have a high red blood cell count which is broken down and replaced, neonatal jaundice is very common. In most cases, this is diagnosed quickly either at hospital before discharge or in the community by the midwives or health visitors. It will either resolve itself or can be easily treated with phototherapy. With quick treatment, jaundice is reversible and causes no harm.

If jaundice is severe and not diagnosed or treated properly, babies are in danger of developing kernicterus. The bilirubin levels build up to very high levels – a condition known as hyperbilirubinemia. The bilirubin can then cross the blood-brain barrier causing damage.

Kernicterus is a rare form of brain damage that occurs when bilirubin builds up to extremely high levels and enters the brain. It is considered a preventable condition. Babies born prematurely have the highest rates of developing jaundice and Kernicterus. According to www.nhs.uk, it is estimated that 6 out of 10 babies develop jaundice, including 8 out of 10 babies born prematurely before 37 weeks. The HSE have not published figures.  Other risk factors include blood incompatibilities, maternal infections, and macrosomia. Only around one in 20 babies has a blood bilirubin level high enough to need treatment.

What types of claims can be brought?

• Failure to investigate symptoms
• Failure to advise parents what to do when jaundice is identified
• Failure to investigate or arrange testing of the bilirubin levels
• Failure to refer to a specialist for investigation or treatment
• Failure to act on test results
• Failure to conduct an adequate examination
• Failure to diagnose a condition
• Failure to refer urgently refer by a community health nurse for continued symptoms of jaundice
• Failure to monitor babies at thought to be at higher risk of the condition – namely those born prematurely following birth.
• Failure to respond to a surge in the baby’s bilirubin blood levels.

Whilst these circumstances represent some of the most common reasons for making medical negligence compensation claims relating to jaundice and Kernicterus, it is not an exhaustive list of all potential scenarios. If you think your baby could have developed Kernicterus as a result of medical negligence, or they have suffered due to poor care relating to the condition, it’s important to speak to an expert legal advisor as soon as possible.

What is Jaundice and Kernicterus?

The Impact of a Kernicterus Diagnosis

Should your baby suffer from kernicterus, there are a number of short and long-term effects they may face:

• Displaying a poor awareness of the world around them, perhaps not responding to audio-visual stimuli.
• Your child’s muscles may be abnormally floppy or ineffective.
• You may experience difficulties in feeding your child.
• As the condition develops your child may begin to experience seizures and show an arching of the neck and/or spine.
• Kernicterus can lead to bilirubin encephalopathy; resulting in your baby’s head remaining abnormally small and leading to significant cognitive impairment.
• Where excess bilirubin is allowed to damage the spinal cord and cause a spinal, kernicterus can be fatal.
• Where treatment is not administered promptly, your baby may suffer brain injury leading to associated conditions such as cerebral palsy.
• Your child may experience hearing loss, which can be mild to severe.
• He or she may exhibit involuntary twitching or uncontrollable movements throughout the body.
• Problems associated with maintaining eye contact or remaining focused on a particular area – children with kernicterus have been known to gaze upwards or to one side, rather than to maintain a steady forward focus.
• Your child may experience learning difficulties.
• Many children with kernicterus have also been known to experience dental development issues.

The presence and severity of symptoms can vary, often according to how quickly the condition is diagnosed and treated by medical staff. Where medical negligence can be shown to have contributed to or exacerbated the effects of kernicterus it can have a significant influence on your compensation claim.

Whom Can I Claim Against?

In private care, the GP and the Practice Nurse is usually self-employed and will carry their own insurance.    If the claim relates to a public hospital or a community health nurse they will be covered by the Clinical Indemnity Scheme.

The Medical Practitioners Act 2007  includes Paediatricians, Neonatologists, Midwives and Community Health Nurses as legally recognised medical practitioners in Ireland. They are required to practice to the highest medical standard. Because Paediatricians, Neonatologists, Midwives and Community Health Nurses 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 a medical 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.

In cases involving babies and children, the two years starts to run from the time they turn 18.  However, these claims should be taken as soon as possible as evidence is often lost over the passage of time.  In addition to this, if your baby has suffered an injury an early settlement will allow you to access the care, therapies and supports they need, and in some cases adaptions to the home may be required.

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.

How to Make a Claim?

If you are unhappy with the treatment that your baby received in hospital, under your GP or Community Healthcare Nurse, 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 baby’s records, and where necessary your obstetric 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 negligence.
3. If we are of the opinion that there may have been negligence on the part of the medical practitioners who treated your baby we will instruct an independent expert to carry out a report to consider whether the treatment that your baby  received is below the standard of care that should normally be applied.

Establishing Negligence

Medical negligence means that the treatment that your baby received is below the standard of care that one would ordinarily expect to see that a patient should receive from a qualified medical professional such as a Paediatrician, Neonatologist, Midwife or Public Health Nurse.  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 your baby 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 your baby received they have suffered an injury.  The Expert Report will also need to support this.

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

What happens next?

When we issue proceedings the insurer for the hospital and / or medical practitioners  will instruct solicitors.   We may need to take up further reports, on your baby’s condition and prognosis.    We will advise on the appropriate Vocational Representation expert who will assess your baby and provide us with reports on your baby’s future needs, to include but not limited to, care, occupational therapy, aids and appliances, assistive technology, educational psychology, neuropsychology and in some cases it may even be necessary to instruct Architects in situations where the injury is such that your home is no longer suitable for your child because of their injuries.

Will I have to go to court if I bring a negligence claim?

Most 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.

How much compensation will be received?

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 and your baby’s.  Damages are made up of general damages which is compensation for 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.  In cases involving children a claim for retrospective care can also be made – this is for the additional care you have provided that was required because of your child’s injury.

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.