Clinical Negligence Claims – Seeking Answers After a Loss

Miscarriage, stillbirth and neonatal death

All are heartbreaking to experience but there is an important legal difference between a miscarriage, stillbirth and a neonatal death:

Miscarriage: The loss of a baby before 24 weeks of pregnancy is classed as a miscarriage.

Stillbirth: This is when a baby is born at or after 24 weeks of pregnancy with no signs of life at delivery.

Neonatal death: This is where the death of a baby occurs after birth and within the first 28 days of life, regardless of gestational age.

Thinking about a clinical negligence claim?

If you have concerns about the treatment you or a loved one has received, particularly in the context of a stillbirth or neonatal death, there are several avenues you can explore before deciding to bring a clinical negligence claim.

• If your treatment was provided by the NHS, you can make a formal complaint following the NHS complaints procedure, subject to certain time limits. A complaint should generally be made within 12 months.
• Complaints about treatment in the private sector must be dealt with under the treating doctor’s or hospital’s own complaints arrangements unless the treatment was originally commissioned by an NHS body, for instance, under a waiting list scheme and there is no fixed complaints procedure.
• If the stillbirth or neonatal death happened at an NHS trust, the trust itself may initiate an internal review. This could include:
  • Use of the Perinatal Mortality Review Tool (PMRT). All stillbirths and neonatal deaths from 22 weeks gestation are reviewed using PMRT. This tool helps standardise investigations and identify avoidable factors.
  • Review of medical records: including maternal history, test results, and any post-mortem findings.
  • Staff interviews: healthcare professionals involved in the care are interviewed.
  • Parental input: parents are invited to share concerns and questions.
  • Bereavement care assessment: the quality of support provided to the family is reviewed.
  • Hospital review meeting: findings are discussed internally; parents may receive a summary and have a follow-up meeting with a senior clinician.

• You may be asked to agree to a post mortem of your baby. This may include an external and internal examination, histopathology, genetic and infection testing alongside photography and radiology imaging. It is your choice whether you agree to this or not. In some cases, a baby’s cause of death may be reasonably clear, however, in others a post mortem can help with establishing this.
• The Maternity and Newborn Safety Investigations (MNSI) programme, formerly HSIB, may also conduct independent investigations into:
• Intrapartum stillbirths
• Early neonatal deaths (within seven days)
• Severe brain injuries in term babies
• Maternal deaths

The MNSI investigation aims to improve safety and learning. Some of its investigations may include interviews with staff and family members, a review of the medical records and the identification of points of learning.

• Where there is uncertainty about a baby’s death, in some circumstances it is also possible that this may be referred to the coroner to investigate. The coroner’s court is principally a fact-finding inquiry which could lead to a possible inquest in some cases where the legal cause of death requires additional examination. If an inquest is being considered in a potential clinical negligence claim, it may be helpful for a clinical negligence solicitor to assist you with this more formal process.

Each of these avenues can be helpful in their own way, giving parents a voice in difficult circumstances and encouraging transparency from the NHS trust in some cases.

Bringing a clinical negligence claim: how it works

A clinical negligence claim is chiefly a civil claim for damages (also known as compensation) under the law of tort. However, as mentioned above, this process can also help parents with outstanding concerns and questions to obtain answers. A clinical negligence claim will usually begin with investigations into the events that took place, in order to understand whether these meet the high legal bar for a case to be successful.

For your clinical negligence claim to succeed, the following legal tests must be satisfied and it is necessary to establish that:

▪ One or more of the medical practitioners involved in your care was negligent and

▪ The negligent treatment has caused damage.

The test for assessing if there has been negligence is whether or not the standard of care received fell below the standard of a responsible body of medical opinion in the relevant field ie whether no responsible body of practitioners would have acted in the same way in the

same circumstances.

In terms of assessing the damage caused and to be compensated, you cannot claim for problems due to any pre-existing condition or something that would have occurred even if the treatment had not been negligent – such as a recognised complication from treatment that can occur without any errors.

You have to establish that the negligent treatment made your condition and/or outcome materially worse. In cases of stillbirth or neonatal death, it has to be shown that your baby’s death would have been avoided.

Medical evidence

In exploring whether there has been a breach of duty and causation in a potential claim, an independent medical expert will usually be instructed to prepare a report. This often examines the treatment received during pregnancy, birth and following birth in detail, giving an impartial and objective opinion on these events which can be extremely valuable to parents.

If any elements of this evidence are unclear, you should be able to ask questions of the experts instructed in your claim. It is important, particularly where the medical records are not entirely complete, that your experiences and recollections are fully taken into account. Your solicitor should advocate to ensure that any evidence obtained has carefully considered the circumstances of the events leading to the negligence.

Supportive expert evidence is fundamental to the basis of a clinical negligence claim.

Negligence has been established: what now?

As discussed above, the aim of a clinical negligence claim is to provide compensation to the person who has suffered a worse outcome as a result of the breach of duty in their care. In stillbirth and neonatal death cases, the main parties to a claim will be the bereaved parents. In some cases, it may be possible to claim for a psychiatric injury to the parent who gave birth to the child but there are many factors that go into the assessment of this.

Understandably, money is never going to be able to compensate you for the loss of a loved one. This is often the last thing on a parent’s mind when they have concerns about the medical treatment they or their child received.

Primarily, the driving force behind negligence claims following a stillbirth or neonatal death is to understand what went wrong and to try to prevent this from happening to other families. However, sometimes compensation in these claims can be helpful in supporting parents not only in the context of obtaining answers but also financially.

As part of a clinical negligence case, the following losses may be claimed in some circumstances:

• Bereavement award: This is a fixed statutory amount payable of £15,120. Usually, this can only be claimed in cases involving neonatal death.
• An award for pain, suffering and loss of amenity, including both the baby’s suffering before death and a psychiatric injury to the birthing parent if relevant. This is an award that relates directly to the level of pain, suffering and loss of amenity experienced by baby and/or the birthing parent.
• Funeral and memorial expenses for baby.
• The costs of purchasing items in preparation for baby that have not been used.

In particular, if a psychiatric injury has been sustained by a birthing parent following negligence in their care, some additional losses to be considered are:

• A loss of earnings if your employment has been affected.
• Care and assistance provided by family members in supporting living children or the birthing parent during periods of grief.
• Travel and costs of attending appointments specifically related to the injury caused by the negligence.
• The future costs of any treatment or psychiatric support required, including counselling and trauma therapy if needed.
• Future fertility costs such as IVF in certain circumstances.

Thoughts to take away

While you may have many reasons for wanting to investigate whether there has been clinical negligence in your care, this is a significant undertaking and can take time. It can also be worth considering what you are hoping to achieve from this process.

There are routes to take through NHS trusts in terms of the formal complaint process, internal investigation process and PMRT reviews that can help to provide answers during times of tragedy for parents. External bodies such as the MNSI programme can also assist with allowing an impartial review of treatment if you have concerns regarding this.

Generally, court proceedings for clinical negligence claims following a stillbirth or neonatal death should be issued within three years of the baby’s stillbirth or death.

If you are still unhappy with the treatment you or your baby received or if the investigations you have undertaken have raised more questions or concerns, it may be that you feel exploring a clinical negligence claim is the next step.

It is important that you instruct a solicitor with whom you are comfortable and who has the relevant experience of stillbirth and neonatal death claims given the sensitivity of these claims and to ensure your family are appropriately advised and supported during an extremely difficult time.

Charities such as Action Against Medical Accidents (AvMA) can assist with signposting you to clinical negligence solicitors with the specialism to advise on many claims, including stillbirth and neonatal death cases. They can also provide advice through their helpline, as well as having many useful resources online.

At Penningtons Manches Cooper, we are always happy to discuss potential claims with parents and provide initial advice free of charge. We are experienced in selecting the best experts to thoroughly investigate the care received  we know who to ask which questions and can translate the answers to parents to give a greater understanding of what caused their loss and to secure financial compensation, where appropriate.

For any queries or questions, please contact the author of this article, Grace Norris, who works as part of this team, on 01483 411450 or by emailing grace.norris@penningtonslaw.com.