Preventable Stillbirth Compensation Claims

Every year in England and Wales, hundreds of thousands of babies are born. The vast majority of births are medically unproblematic and result in the births of healthy babies. However, unfortunately every year there is also a small but significant minority of pregnancies that end in a stillbirth. Worryingly, the most recent statistics reveal that 2021 saw the first increase in the rate of stillbirths for 7 years.

Every stillbirth is a life changing tragedy. It is all the more devastating for a bereaved family when there is evidence that with reasonable medical care their baby could have survived.

We have acted for many clients over the years who have suffered stillbirths arising from medical negligence. Many who approach us want to try to prevent anyone else having to go through what they did. As well as providing compensation for the devastating losses caused by the stillbirth, bringing a claim can draw attention to failings in care, and the NHS supports learning from claims as a way of preventing the same mistakes from being repeated.

In this blog, I outline some of the key steps in a compensation claim for preventable stillbirth. Every case is unique, so if you think you may have suffered a stillbirth as a result of negligence I recommend contacting our experienced team of Medical Claims solicitors, to have an initial conversation about the specific facts of your case.

Whilst bringing a claim can seem complicated, at Anthony Gold we aim to support you every step of the way and we strive to make the process as easy as possible for you.

Proving medical negligence

There are three key steps involved in proving negligence in a stillbirth claim:

1. Duty of Care

A successful claim can only be brought if the mother who suffered a stillbirth – the “claimant”– was subject to a “Duty of Care” at the time that the alleged medical negligence took place.

For an experienced solicitor, this is rarely a problematic part of a claim. The vast majority of expectant mothers will be under the care of a hospital and/or a maternity clinic during their antenatal period. It is well established in law that medical professionals (including doctors, nurses and midwives) owe their patients a Duty of Care.

2. Breach of Duty

Once the claimant has established that they were owed a Duty of Care, they must then prove that there were one or more breaches of that duty.

In cases of medical negligence, a breach means a mistake which would not have been made by any reasonably competent medical clinician in the relevant field. If some reasonably competent clinicians would have done the same thing, then there will have been no breach.

Breaches of duty that are frequently encountered in stillbirth claims include:

• Failing to monitor fetal heart rate through cardiotocography appropriately;
• Failing to refer for ultrasound scan or further investigations or delaying doing so;
• Misinterpreting or misreading of test results;
• Failing to check up on a patient regularly or discharging a patient too early; and/or
• Failing to treat and/or refer appropriately following a reported reduction in fetal movement.

One or more medical experts will be instructed as part of a claim to determine whether there have in fact been any breaches of duty. In stillbirth claims, it is usually experts in obstetrics and/or midwifery who will be instructed to provide an opinion on this issue.

3. Causation

Once it has been established that there were one or more Breaches of Duty, the claimant must then prove that those breaches of duty caused loss. In a stillbirth claim, that essentially means proving that the baby would probably have survived if the breaches of duty had not happened.

This part of the claim can sometimes be medically complex. Hospitals will often argue that, even with reasonable care, the outcome unfortunately would have been the same.

Causation is another issue that largely falls to be determined by appointed medical expert witnesses. We always ensure that we provide our expert witnesses with comprehensive instructions so that every claim is investigated thoroughly, and we can advise our clients accurately on their claims’ prospects of success.

Compensation

Once negligence has been established, the focus will turn towards determining the level of the compensation that should be made available.

Some of the most important types of compensation for preventable stillbirth are:

Pain, Suffering and Loss of Amenity

This represents compensation for the pain and suffering caused by a stillbirth, which may encompass (amongst other things):

• The trauma of the stillbirth itself;
• The loss of satisfaction of bringing the pregnancy to a successful conclusion;
• Grief of abnormal intensity and duration; and
• Psychiatric injury (such as Post Traumatic Stress Disorder and/or a depressive disorder).

These are difficult losses to quantify in monetary terms, but our team of medical negligence specialists are well-practiced in advising on what can be recovered based on common law precedents and the court guidelines for life-changing devastating events such as stillbirth.

Financial Losses

Whilst unlikely to be at the forefront of bereaved families’ minds, the financial losses flowing from stillbirths can be substantial. In particular, where a claimant has suffered a major disruption to her career, there can be a profound financial as well as personal impact on her and her family. In the recent case of AL v Royal Cornwall NHS Trust [2021, unreported] the claimant received £220,000 in compensation for loss of earnings because her career had been disrupted by psychiatric injuries caused by her stillbirth.

Quantifying claims for loss of earnings is complex, andthe assistance of a solicitor can be particularly helpful here, because they are expertly trained in applying the methodologies used by the court to calculate recurring annual losses. Other financial losses that solicitors should investigate and calculate for their clients include, but are not limited to:

• Treatment costs (e.g. for counselling or Cognitive Behavioural Therapy) for the claimant’s grief and/or psychiatric injury;
• Gratuitous care, such as emotional support provided by friends and family;
• Funeral costs;
• Layette costs;
• Flowers and gifts; and
• Travel expenses.

Concluding a Claim

Once the claim has been quantified it usually settles “out of court”. In very rare instances, where the parties cannot agree, it will be necessary for a claimant to go to trial to get a court to determine whether the hospital trust is liable and/or the amount of compensation available.

Seeking Legal Assistance

These types of claims are profoundly personal and life-changing on so many levels. They can also be legally complex. Our team have a wealth of experience in dealing with sensitive claims arising from negligence at birth, as well as claims involving psychiatric injury. If you consider that your stillbirth may have been caused by negligence, please do not hesitate to contact us and we would be happy to discuss your enquiry.