Shabby Chic Boho To win a medical malpractice lawsuit for a birth injury, it is not enough to prove that something went wrong. You must be able to establish with forensic accuracy that something that went wrong should and could have been avoided and that a failure of care caused a specific injury.
What the claimant must actually prove
The burden of proof is on the person making the claim. Just because the outcome was poor, there’s no presumption of negligence. The civil test is on the balance of probabilities – is the claimant’s version of events more likely than not to be true? i.e. a 51% threshold. Within that, the claimant has to establish two distinct things: that the care was negligent and that the negligence caused the injury. The “but for” test has to be satisfied for causation: but for the negligence, would the injury have occurred? If, say, it’s proven that the damage was due to an underlying medical condition or an unavoidable complication of delivery, it doesn’t matter if the clinical staff mishandled some parts of the process – the claim fails.
Obstetric cases are also among the most technically challenging of clinical negligence cases to win. The difference between a complication that’s just hard luck and one that’s preventable is often a gap and the other side of that gap is generally where the defense will play.
The distinction between complication and negligence
Medical records being sparse can lead to inferences being made, with the main assumption being that the care was below standard or negligent at points missing from the record. Conversely, a comprehensive and accurate record can be invaluable in showing that standard practice was followed – or that deviations were reasonable given the circumstances. Recording the context can be very important too – a timely check on the baby’s condition may not be recorded if it follows a nurse’s assessment that the mother is sleeping and only interrupts her nap and her reading for privacy.
There’s also a practical angle. If the claim has no merit and it’s bluntly obvious from the records, then the quicker the defense team can identify that, the better. Knowing where the record is supportive can make a big difference when it comes to negotiating a settlement.
When causation is disputed: the material contribution test
There are some scenarios that simply do not follow the ‘but for’ logic in such an uncomplicated manner. In those circumstances, where a child’s injury – hypoxic-ischemic encephalopathy, for example – would have arisen in any event from more than one potential cause, the courts may adopt the material contribution test. Under this test, a claimant succeeds if the negligence materially contributed to the injury; it is not necessary for negligence to have been the sole cause of it.
Such cases are increasingly important where an infant is at an elevated risk of injury and/or when the negligence occurs late in a chain of events in a pre-natal or neo-natal setting. In those circumstances, defendants will often seek to rely upon the elevated background risk, or upon the inexorable occurrence of the injury even in the absence of negligence. The claimant then has to seek to prove by expert evidence that the negligent treatment contributed materially to the outcome over and above the risk that existed in any event.
The role of expert testimony
There is a responsibility on solicitors to understand not only the legal principles but also the medical practice, principles, and protocols that should have been followed to ensure every line of enquiry is pursued and all appropriate experts instructed. It’s also vital to engage with experienced midwifery and neonate care experts to address liability elements, and have immediate access to barristers specialized in clinical negligence throughout the life of a claim.
Not every case results in a claim either. Around 60-70% of potential cases that come to specialist obstetric medical negligence teams are not pursued after preliminary review, often because the mistake, though impactful, could not have been avoided by better treatment. Birth Injury Claim valuation is a separate and equally demanding exercise, requiring detailed assessment of the child’s long-term care needs, future medical costs, and projected loss – often extending across an entire lifetime. Systemic failures will always be a priority because identifying hazards and their root causes is a vital part of making pregnancy and birth safer for everyone.
Informed consent and alternative interventions
These cases are now all about consent. If a parent wasn’t properly informed about the risks of one type of delivery as compared to another type of delivery (e.g. forceps/vacuum vs. C-section), then that failure can stand as a separate cause of action no matter what happened during the delivery. The duty to disclose applicable risks of both delivery methods and also the risks associated with forgoing the delivery is the responsibility of the physician so that the patient can make an informed decision.
These cases are not emotional. They are evidence, expert, take-the-defense-apart cases. The defense will make the claim that the harm was unforeseeable (as they do in all obstetric injury cases), and your job is to gather the evidence in the medical chart and elsewhere. It is either there or it is not.
