How Parents Can Navigate the Maternity Investigation Process in UK Hospitals

If errors were made and a child suffered a tragic injury at birth, parents don’t have to wait years for answers and accountability. Seek advice from a specialist in birth trauma, negligence or cerebral palsy. They can provide an early assessment about what went wrong, who – if anyone – was at fault, and what recourse the family may have.

The MNSI process and why it’s not enough

The Maternity and Newborn Safety Investigations programme (MNSI) is operationally independent from the NHS trusts whose malpractice it is there to investigate. It conducts structured reviews of serious maternity incidents, using Root Cause Analysis methodology to follow the sequence of decisions or failure which led to harm. The resulting reports can be in-depth and frequently constitute a genuinely helpful repository of the background to a child’s injury.

However, the objective is improvement of safety. MNSI reports do not decide whether the standard of care afforded to your child was in any legal sense substandard. They will not result in damages. And they are not analogous to clinical negligence litigation. Too often we see parents who have been under the impression that an MNSI report will set out all the facts they need and achieve closure. Instead, they have invested a year or two in a report that is genuinely helpful but falls short of the child’s compensation requirements.

The internal NHS Serious Incident framework seeks to work through the incident in the same way – a trust’s own accounting process, which will produce a list of findings that could be relevant to any future litigation but do not represent a definitive outcome for your family.

Running a legal claim alongside the NHS process

The hospital’s investigation and a legal claim run in parallel. The former does not have to conclude before the latter can commence. Parents don’t have to choose between engaging with the trust’s review and consulting a solicitor – they can and often should, do both simultaneously.

The limitation period for children is long – three years from their 18th birthday. Early legal involvement however brings with it a number of practical advantages to do with the underlying medical, nursing, and midwifery evidence, evidence of corporate negligence on the part of the trust, and immediate needs for care, case management, and accommodation. These benefits include the commissioning by your specialist solicitor of independent medical expert reports, the prompt and, in some cases, urgent need to make arrangements for your child’s immediate and longer-term needs, the preservation of important evidence which might be lost, mislaid, or destroyed if not carefully preserved, and the beginning of the legal process by your solicitor of putting the trust on notice of potential fault and liability.

Obstetric claims represented a significant portion of the total value of all clinical negligence claims received by NHS Resolution, despite only being a small portion of the total claims. The reason why obstetric claims are disproportionately high in value is because the cost of appropriate care over a lifetime for a catastrophically brain-damaged child is incredibly high.

A Brain Injury at Birth Claim can provide families with the funds they need to pay for the highly specialized, long-term paediatric care, therapy, equipment aids and adaptations, and case-management their child will need from an early age. They cannot afford to wait for years for a final settlement.

Requesting your records before anything else

Request the CTG trace recording and full labour records, as well as the notes from all the maternity care you and your baby received from the beginning of your pregnancy.

Using duty of candour to get real answers

NHS trusts must comply with a legal Duty of Candour if a patient is harmed as a result of care. This is a matter of legal compliance and it’s worth knowing exactly what the duty requires.

The trust must, in person, give you notice that something went wrong. They must provide you with a written apology (not a regret expression, a real apology). They should tell you in an honest and open manner what happened and what is the likely result on your child. You’re entitled to request a formal face-to-face meeting with clinical staff.

Make use of this. Submit written questions. Request a clear timeline of events during the labour and delivery. Specifically, ask about the decisions on fetal monitoring and any escalation that ought to be applied. The answers – or evasions – can be quite telling regarding what the medical records will probably show.

Interim payments and why early legal action matters

Finalizing a settlement in a birth injury case that is both fair to the injured child and their family, and sufficient to cover that child’s entire future needs, can take years. Insurers need to be sure about the details of a child’s condition and prognosis and evidence may need to be accrued from a variety of expert witnesses. None of this happens overnight.

The unfortunate reality however, is that for the child, there are support structures required that can’t be deferred. If your baby was born with a brain injury, you need access to occupational therapy, possibly speech and language support; you may need to adapt your home to accommodate a wheelchair, or to cope with a child who as they grow bigger and stronger is less able to control their movements. None of that can wait until the legal process comes to a conclusion.

An interim payment is a payment on account of the likely overall award of compensation that your child will receive at the end of the case. It’s essentially a grant which is then repaid when the final award is made. The thing about interim payments in birth injury cases is that what you are basically asking the defendant to do is to compensate your child early for negligently causing his or her injuries, before the court has had time to look in detail at the evidence.