Birth injury and the devastating effects this can have on a Mother’s mental healthNovember 26, 2019
In a study carried out by the organisation Birthrights, less than half of women they surveyed had the birth they wanted and many experienced lack of choice and disrespectful care.
Having a baby should be one of the happiest and most exciting days of a women’s life. Unfortunately, this isn’t always the case. When events go awry during childbirth, the consequences can be devastating for the baby and the parents. Many mothers go into labour having researched her options and with a birth plan in place. Unfortunately, even a birth that started well, can turn into a scary and sometimes terrifying ordeal. Sadly when things go wrong during labour, this can lead to the baby suffering life changing brain injuries.
In some instances, these brain injuries were avoidable and caused by negligence on the part of some or all of the medical team involved. Negligent care can include things like:
- Failing to properly monitor the mother and baby’s vital statistics during labour
- Failing to recognise and act upon signs of foetal distress
- Failing to carry out a caesarean section in time, or at all
- Incorrect or improper use of procedures or implements
Clearly a birthing mother who receives negligent care which results in her having to undergo emergency treatment to deliver her baby, will undoubtedly experience feelings of trauma.
The physical effects of a traumatic birth on a mother are usually straightforward to identify, as explained by my colleague Felicity Cottle in her blog, however, the psychological effects are not always as obvious.
The psychological effects of a traumatic birth
A mother may be left with an acute disappointment that childbirth was not the experience she was hoping for and feel anger towards the medical staff if she felt the delivery wasn’t handled well, particularly if she feels she wasn’t listened to. She may feel she is in some way to blame for things going wrong. She may also experience flashbacks or unwanted/intrusive memories of the traumatic birth. She may develop a heightened sense of anxiety.
The experience of a traumatic birth can impair a mother’s relationship with both her baby and her partner and the reality is that her life will be changed forever if she is left caring for a severely disabled child who has suffered a brain injury due to negligent care. In addition, she will have to deal with the ongoing acute anguish about her child’s wellbeing that comes part and parcel with caring for a disabled child.
I am pleased to say the law recognises that negligent care leading to a traumatic birth, is not par for the course for a birthing mother as we can see in the case of RE v Calderdale & Huddersfield NHS Foundation Trust  EWHC 824 (QB). The Honorable Mr Justice Goss said that these traumatic births are:
“not the events of the kind as to be expected as “part and parcel” of the demands and experiences of childbirth.” These are “exceptional in nature and horrifying as judged by the objective standards and by reference to persons of ordinary susceptibility.”
As a solicitor in the child brain injury team at Bolt Burdon Kemp, I know that a mother who experiences a traumatic birth, which leads to her baby suffering a brain injury, can suffer symptoms of Post-Traumatic Stress Disorder (PTSD) and depression.
Primary victims during childbirth – the special bond between a mother and baby is a bond recognised in law.
In cases where a baby suffers traumatic brain injuries during birth as a result of medical negligence, the baby may have a claim as a ‘primary victim’ against the hospital or team responsible for his/her care during labour. But what about the mother? Can she be classed as a ‘primary victim’ too or is she a ‘secondary victim’? What’s the difference?
Primary and secondary victims explained
- A ‘primary victim’ is one who directly suffers injury as a result of negligence
- A ‘secondary victim’ is one who has witnessed the primary victim suffering an injury and suffers from nervous shock or psychiatric problems as result
The bond between Mother and baby is undoubtedly one of the closest and most special bonds that exists, and this is recognised by the law. The case of Wild v Southend University Hospital NHS Foundation Trust  EWHC 4053 (QB) confirmed that a mother and child in utero should be considered as one legal person. Therefore, if a baby suffers a negligent injury during birth, the mother is also considered a ‘primary victim’ along with the baby and she does not lose her status as such after the baby is born.
The benefit of being recognised as a ‘primary victim’ is that it is more straightforward to succeed in a claim for compensation than it is for a ‘secondary victim’ because ‘primary victims’ are not subject to the often-restrictive control mechanisms applicable to ‘secondary victim’ claims. To succeed in a claim for psychiatric injury as a ‘secondary victim’, a Claimant must be diagnosed with a recognised psychiatric injury, induced by a sudden shocking event. In addition, the following criteria must be satisfied:
- have a relationship of love and affection with the primary victim;
- come across the ‘immediate aftermath’ of the event;
- have direct perception of the harm to the primary victim; and
- be of reasonable fortitude
For a more detailed analysis of the difference between ‘primary’ and ‘secondary’ victim claims, see the blog by my colleague, Ben Pepper.
The ongoing nature of a mother’s symptoms after a traumatic birth – still a primary victim
In an effort to have the mother classed as a ‘secondary victim’ rather than a ‘primary victim’, Defendants often try to argue that the mother’s psychiatric injury is due to the pressures of caring for a child with severe disabilities rather than the trauma of the birth itself. In the High Court decision in YAH -v- Medway NHS Foundation Trust (rev 1)  EWHC 2964 (QB), the Claimant’s daughter was born after a negligent delay in intervention by the medical team despite signs of foetal distress. The birth was traumatic. Her daughter was born in very poor condition; she suffered brain injuries (cerebral palsy) and associated significant disabilities. The mother developed an anxiety disorder and depression after her daughter’s birth, which was largely triggered by the recognition which came later, of the extent of her daughter’s brain damage.
Mrs Justice Whipple confirmed that the ‘secondary victim’ test did not apply to the mother in this situation. She concluded that the mother’s psychiatric injuries were in fact due to three elements:
- The trauma of the labour;
- The fear of knowing that her baby’s life was in danger;
- The strain of caring for a significantly disabled child
It is a relief to know that the law recognises the reality that the ‘cause’ of a psychiatric injury of a mother who has experienced a traumatic birth resulting in her child suffering brain injuries, is complicated and cannot always be clearly disentangled. There is no denying that the injuries are nevertheless very real and something that a mother who finds herself in these circumstances may have to live with every day of her life.
New mothers should be encouraged to talk about their experiences of child birth and seek support if her mental health is suffering following child birth. Organisations like Birthrights can offer invaluable support.
At Bolt Burdon Kemp we have a team of solicitors who specialise in representing children who have suffered brain injuries at birth due to medical negligence, but we always consider whether the mother has a claim for compensation too. This is vital to ensure that she is appropriately compensated for any injuries she has suffered, as well as ensuring she has access to care and rehabilitation by way of long-term psychotherapy and support if this is required.
Caroline Lobsang is a solicitor at Bolt Burdon Kemp in the Child Brain Injury team. If you feel you may have a claim or are enquiring on behalf of a loved one, contact Caroline free of charge and in confidence on 020 72884808 or at firstname.lastname@example.org. Alternatively, complete this form and one of the solicitors in the Child Brain Injury team will contact you. Find out more about the Child Brain injury team.