Experiencing the loss of a newborn is a devastating emotional trauma that cannot be measured on any scale. Then having to deal with a legal battle on top of that is exceptionally difficult. However, in a lot of cases, going through the legal system is necessary not just for the compensation but to make those responsible provide a thorough and transparent explanation of what went wrong.

The Difference Between A Hospital Investigation And A Legal Claim

In the unfortunate event of a neonatal death, the NHS trust will also open its own internal review under the Serious Incident Framework. This is an internal process. The trust investigates itself, and the conclusions, while occasionally helpful, are designed to protect the institution.

A formal legal claim is completely different. A solicitor acts only for the family, never the hospital. The internal investigation reports are potentially useful ‘starter evidence’. They commonly include many of the admissions, timelines, and clinical records that a specialist solicitor will use.

Those families who have asked for their internal investigation report before they have signed up with a solicitor tend to fare the best. You are entitled to those documents. Ask for them.

How Compensation Is Structured

Many families think that a settlement equates to one bereavement payment. It’s a bit more nuanced than that, and appreciating that goes a long way when you’re trying to identify a solicitor for Neonatal Death Compensation who really does understand neonatal cases.

There is a statutory bereavement award. A fixed sum open to qualifying relatives, but that is a floor not a ceiling. A properly constructed claim also takes in special damages: specific sums such as funeral costs and the expense of counselling or psychiatry that has been incurred to date.

Compensation is also set to cover the severe psychological damage suffered by both parents over an extended period. That may be years of therapy, the loss of earnings when a parent’s reduced capacity forces them to stop working, and acknowledging the trauma that endures past any anniversary. These are general damages and these need to be carefully evidenced so they mirror the true effect on changing life for the whole family.

Maternity claims already account for 41% of the total expected value of all new clinical negligence claims, even though they make up a smaller percentage of the whole (NHS Resolution Annual Report 2022/23). This is how bad and how long-term the fallout is.

What A Coroner’s Inquest Can Unlock

Many times when a newborn dies, a Coroner steps in to determine the cause of death. What most people don’t know is that they’re not just supposed to sit back and observe the process; they’re an active participant.

Where there may have been a public body failing, for instance, an NHS trust, the family is eligible for what’s known as Article 2 representation. The inquest isn’t just to figure out how that baby died, but whether the state’s systems and decisions contributed to that death. It’s a totally different purpose of the investigation.

An inquest can bring out evidence that the hospital’s internal review conveniently left out. In fact, a solicitor who deals with clinical negligence cases will often be present, or have a representative at the inquest, because the findings can help make your legal case.

Proving Causation: The “But For” Test

Medical negligence claims cannot be won by just proving something went wrong. Legal justice also requires demonstrating causation, that the baby would not have died but for the breach of duty.

To prove causation, you need an expert report. Independent medical experts, hugely experienced neonatologists, midwives, and obstetricians, know just how finely balanced many of these situations are.

They will give a professional opinion on whether the standard of care fell below what is reasonable and to be expected, and secondly, whether had there been no breach (and the warning signs had been acted upon), a different outcome would have been likely.

The failure to provide antibiotics during labour for a mother carrying GBS, for example, is often indefensible and will be the basis of a causation argument if left undiagnosed and untreated prenatally. The same is true if steroids were not administered during ultra-preterm labour or if the pregnancy was allowed to continue post-dates with inadequately monitored amniotic fluid levels.

These arguments can only be made after an experienced and independent medical expert has agreed the care was negligent. This is also why the limitation period matters. There’s typically a three-year window in which to bring a claim, measured from the date of death.

Choosing The Right Solicitor

Not every personal injury solicitor will have the right skills to handle neonatal cases. The clinical issues involved are extremely complex, the emotional aspects particularly acute, and the legal structures surrounding them quite different from many other types of injury. The right solicitor will be able to help guide you through the inquest process sensitively, and to gauge when you might have a case to claim under the Human Rights Act.

The Law Society actually runs an accreditation scheme specifically for clinical negligence practitioners. A solicitor who is carrying that accreditation has already been assessed and found up to standard in this area. It’s a question worth asking directly. Not only are they handling medical cases, but neonatal and stillbirth claims already form a meaningful part of their existing practice.

Through the Early Notification Scheme, run by NHS Resolution, a number of cases are already being fully investigated on the NHS side before a family has even arrived at the point of considering legal action. A specialist solicitor will know how to engage with that process, and what the advantages are of doing so rather than having to duplicate that work.

Jane