Bringing a legal claim after a stillbirth

October is Pregnancy and Infant Loss Awareness Month. Baby loss awareness week takes place at the beginning of October and is a week of reflection and remembrance for all babies who are sadly not with us today. Candles are lit across the country and services are held in remembrance. Very sadly, the UK has above average rates of stillbirth when compared with other high-income countries. Devastatingly, maternity scandals are all too regularly reported in the UK.

As medical negligence solicitors we often help families to bring a legal claim if negligence has led to the loss of a baby or a stillbirth. This is understandably an incredibly difficult time for parents and beginning a legal claim after a stillbirth may feel daunting. We understand that no amount of money can change the situation and that discussing a financial settlement after a stillbirth may feel very cold. The only recourse we have in clinical negligence claims is to secure a financial settlement to account for the pain, suffering and financial loss experienced as a result of the negligence. We hope that by guiding families through the process of bringing a claim we can help them to find answers about the care received and encourage Trusts to recognise failings in their care and take steps to improve services.

What investigations are carried out after a stillbirth?

After a stillbirth, a hospital will carry out a review of the care that you received to understand how and why your baby died.

The Perinatal Mortality Review Tool (PMRT) aims to provide answers about why a baby died. A PMRT review of the care a mother and baby received will take place to review the death of a baby after 22 weeks’ gestation. The review will look at the events leading up to a stillbirth. Families are informed the review will take place and should be provided with an opportunity to ask questions or provide information about the care received. Families will be informed of the outcome of the review and should be offered an appointment with a consultant to discuss the findings of the review and answer any questions.

The Health and Safety Investigation Branch (HSIB) will investigate the death of a full-term baby from 37 weeks’ gestation, including intrapartum stillbirths (when a baby is thought to be alive during labour but is born without signs of life). HSIB will discuss with you how you would like to be involved in the investigation.

If there may have been failings in the care you received, the Trust will carry out a Serious Incident Investigation or a Patient Safety Incident Response Framework investigation. Investigations are carried out under these frameworks with the aim of preventing reoccurrence.

Medical examinations: a post-mortem or placental histology

At present, a Coroner does not have the power to investigate a stillbirth.

A post-mortem can be carried out with your consent. A post-mortem is a medical examination of your baby which can be carried out to find out whether there are any medical factors that caused or contributed to the death. A post-mortem cannot be carried out following a stillbirth without your consent.

A histopathological examination of placenta may also be carried out.

Bringing a legal claim

Understandably, after a stillbirth, families may not be considering bringing a legal claim at first. You have three years within which to bring a legal claim after a stillbirth and failure to issue a claim at court within this time frame can mean you are prevented from pursuing a claim.

We would be very happy to discuss the process with you before you consider whether or not you’d like to pursue a claim.

To bring a successful clinical negligence claim, we need to prove two legal tests – breach of duty and causation. To prove breach of duty, we must show that the care you received fell below a reasonable standard. If we can establish there was a breach, we must then prove causation and show that this breach caused a worse outcome. This is know as the ‘but for’ test – but for the breach, would the stillbirth have occurred? Whether or not there has been a breach of duty and whether or not this breach caused the stillbirth are questions for a medical expert to consider.

The reviews and investigations that are carried out following a stillbirth may be helpful in identifying breaches of duty.

What losses can I claim for after a stillbirth?

A claim is usually brought by a mother following a stillbirth.

It is possible to claim for losses that arise as a result of the negligence. This will include general damages for pain, suffering and loss of amenity, past financial loss and any future financial loss.

A mother may have suffered or be suffering from a psychiatric injury as a result of her experiences. A psychiatrist can be instructed as part of the claim to report on whether or not a psychiatric injury has been caused by the negligence and provide recommendations for treatment, therapy or interventions. The costs of these recommendations can be included in the claim.

Past financial loss may include:

• Loss of earnings
• The costs of any items purchased for your baby including clothes
• The costs of decorating the nursery
• Costs of care provided to you following the negligence (this may include care provided by family members above and beyond what would usually be provided)
• Funeral expenses
• Travel costs to and from appointments

Future financial loss may include:

• Loss of earnings
• Future costs of therapy
• Costs of medical treatment

Children’s Funeral Fund for England

The Children’s Funeral Fund for England can help to pay some of the costs of a funeral if a baby is stillborn after 24 weeks gestation. Accessing the fund is not means-tested and the fund can help to pay for burial fees, cremation fees and a coffin. If you arrange the funeral through a funeral director, they can make the claim from the fund directly. A similar fund is available in Wales.

The number of stillbirths per 1,000 births rose last year in the UK. This is devastating. It is hoped that through raising awareness via this dedicated month to remember baby loss and stillbirths, together we can make a difference to families during this heart-breaking time.