The effects and devastation arising from a negligently handled labour that have caused irreversible and often significant injuries to the child, will inevitably cause much upset to the family and particularly the mother, who is often left with depression and anxiety. Whilst there is often a claim against the Health Board for the child’s injury, is there a claim for the mother? A recent ruling on a claim; YAH v Medway NHS Foundation Trust  EWHC 2964 (QB), says there is.
The mother will, of course, have a separate claim if she has been physically harmed as a result of the negligence. However, those injuries will often pale into significance when compared with the brain injuries caused to the child. It is settled law that mother and baby are one legal entity until delivery and so the mother is a primary victim in so far as she suffers personal injury consequent on negligence which occurs before delivery.
The issue of whether a mother can claim a psychiatric injury as a result of her child’s brain injury is a little different; here she will need to satisfy the test of whether she is a primary victim or a secondary victim. Additionally, the injury must not be too remote from the admitted negligence.
The legal test for a primary victim is confirmed as “One who is directly involved in the accident, and well within the range of foreseeable injury”. The victim needs to be a primary victim at the time she suffers the psychiatric damage. The negligent event is the delivery and so it is arguable that the mother cannot be a primary victim if the psychiatric injury manifests later in time, after the delivery.
A secondary victim must be diagnosed with a recognised psychiatric injury, induced by a sudden shocking event, from having direct perception of the events witnessed at the scene or shortly after and also have a close tie of love and affection to a primary victim.
It is not always the case that a difficult labour will be seen to cause a recognisable psychiatric injury or illness, but the extent of the child’s brain injury and day to day worry of that child’s wellbeing is more commonly the likely cause. However, it is often not for some years that a firm diagnosis or full realisation of the extent of a child’s brain injury is known. At what point is the psychiatric injury of the mother triggered?
Recent case law
YAH v Medway NHS Foundation Trust 2018 involved the delayed delivery of a baby girl, despite clear signs of foetal distress. The baby girl suffered cerebral palsy and significant disability following a period of hypoxia prior to delivery. The defendant admitted negligence in the delay and a claim for the baby’s injuries is successfully proceeding. However, the baby’s mother, YAH, also suffers from depression and anxiety as a result of the distressing delivery and effects of her baby’s diagnosis and disabilities, and brought a separate claim for her injuries.
The experts in this case, agreed that YAH had suffered a psychiatric injury caused, or contributed to, by their negligence. In relation to whether the injury was too remote or whether the psychiatric harm was foreseeable, the precise trigger of the injury was in dispute.
The defendant argued YAH’s psychiatric injury was caused by the stress of caring for her disabled child; that the difficult labour did not contribute to the injury; and that any distress in the days after delivery did not go beyond the normal upset and distress a parent would suffer in these circumstances. They said she was not a primary victim and that her psychiatric illness arose out of worry for her daughter’s future and not of events around the time of the negligent delivery so she did not satisfy the criteria of a secondary victim either.
However, whilst the court agreed that YAH was not a secondary victim, as she would not have satisfied the criteria for a shocking event, as defined in the case of Alcock v Chief Constable of South Yorkshire 1992, the court did find that YAH was a primary victim. They said the mother does not cease to be a primary victim at the moment of delivery, even with her psychiatric injury occurring later. The court also noted she did not have to establish being part of a shocking event as a primary victim.
They noted that the combined conditions, (an anxiety disorder shortly after the distressing and poor condition of the baby and depression, which came later and was largely triggered by a recognition of the extent of her daughter’s brain damage), formed a single, indivisible mental disorder which fluctuated over time and were closely linked to the defendant’s negligence just before delivery.
The judge held that the experience of the difficult labour and the worry of not knowing whether her baby would survive were entirely proximate to the defendant’s breach of duty, and that therefore, the psychiatric harm suffered was foreseeable.
What to do?
It is clear that supportive medical evidence from psychiatrists and detailed witness statements from the mother will be needed to support the cause and trigger of the mother’s psychiatric injury, and not all mothers will satisfy this. However, it does appear that the family and lawyers involved in these cases, will also need to consider early on whether the mother has a claim for psychiatric injury as well.
The time limit for bringing court proceedings for a mother’s injury is also important. A child will have 3 years from their 18th birthday, but the mother will only have 3 years from the negligence or knowledge of that negligence causing her injury. If proceedings are not brought within the legal time limits then the law says the claim is not allowed.
A mother’s psychiatric injury can be devastating for the family and have long-term effects. Sadly, the clinical negligence department in Hugh James see many baby brain injury cases. Often these come to us when the child is a few years old and the mother’s psychiatric injury has been overlooked. It is vital to investigate the mother’s injuries at an early stage and determine whether she may be a primary or secondary victim.