If you are considering making a birth injury claim for your child or your claim is already underway, having an overview of the claims process can help you understand what’s involved, what comes next and how the steps we are taking today move the claim forward towards its final settlement.
This page is intended to guide you through the key stages of the birth injury claims process. Some steps may not apply to your case or follow the order that is outlined below. The best way to find out about your own claim’s progress is to contact our birth injury team.
Birth injury claims process FAQs
What are the key stages in a birth injury claim?
The key liability (proving fault) stages in a birth injury claim include:
- contacting a specialist birth injury solicitor for advice;
- entering into a funding arrangement with your solicitor;
- investigating liability, based on family recollections, medical records and medical experts’ opinions on the standard of care and causation of the child’s injury and disability;
- full case review with a barrister, your solicitor and the medical experts;
- sending a letter of claim to NHS Resolution (the NHS’s legal defence team) and receiving their letter of response;
- issuing court proceedings and serving the particulars of claim and supporting documents on NHS Resolution;
- receiving NHS Resolution’s defence to the claim;
- obtaining court directions for the timetable leading up to a liability trial;
- disclosure of all relevant documents;
- exchange of factual witness statements;
- exchange of medical experts’ reports followed by experts’ meetings;
- full case review;
- RTM (round table meeting) with NHS Resolution;
- liability trial and/or judgment.
If liability is admitted at any stage in this process, the claim can proceed directly to liability judgment, bypassing the intervening steps. Most birth injury claims which are accepted and pursued by Boyes Turner’s specialist birth injury solicitors result in an admission of liability or liability settlement without the need for a liability trial.
Following liability judgment in a birth injury claim, the remaining key steps towards settlement may include:
- securing a substantial interim payment to meet the injured child’s immediate needs;
- medical experts’ assessments of the injured child’s condition and prognosis, and life expectancy;
- non-medical experts’ assessments of the child’s needs for therapies, care, equipment and accommodation;
- final valuation of the claim set out in a schedule of loss which is sent to NHS Resolution with supporting evidence;
- NHS Resolution’s counter schedule;
- RTM and settlement negotiations;
- court hearing for assessment of damages or approval of an infant’s or protected party’s settlement.
As with the previous stages of the claim, settlement offers may be made and accepted at any stage of the process, allowing the case to proceed to court approval without the need for the intervening steps.
Have you been contacted by MNSI or NHS Resolution’s Early Notification (EN) scheme?
If your child suffered an HIE brain injury around the time of their birth, you may have been contacted by the Maternity and Newborn Safety Investigations (MNSI) programme and/or NHS Resolution. This is because your maternity or neonatal care hospital will have reported your baby’s birth injury for investigation by MNSI and/or the NHS’s legal defence team.
If MNSI or NHS Resolution have contacted you, it is vital that you seek independent legal advice from one of our specialist birth injury solicitors before responding, to ensure that you protect your child’s entitlement to compensation.
What are the time limits for making a birth injury claim?
You do not have to wait for MNSI, NHS Resolution or your maternity hospital to complete their investigations before seeking advice from our specialist birth injury solicitors about making a claim.
You do not have to wait for your child to receive a diagnosis, such as cerebral palsy, before making a claim, if they a suffered a brain injury during or after their birth. We secure compensation for children and teenagers with a wide range of brain injury disabilities. We work with independent medical experts who assess the child’s brain injury and its resulting disability during our investigation and valuation of their claim.
There are legal ‘limitation’ deadlines for starting a claim, but these do not apply to children or adults who do not have full mental capacity. If a child is expected to retain full mental capacity after their birth injury, they must issue court proceedings to start their claim before they reach the age of 21. This is because the 3-year ‘limitation’ deadline, which applies to adults with full mental capacity does not start to run until the child is 18.
If the child’s mother wishes to claim compensation for her own physical or psychological birth trauma, or if she died as a result of negligent maternity care, the 3-year deadline applies to her claim.
It can take time to gather expert evidence and fully investigate a birth injury claim before court proceedings can be issued. We recommend that, even if you are not currently considering making a claim, you contact us as early as possible, so that we can advise you about any deadlines and how to preserve your child’s right to claim compensation.
How do I contact a specialist birth injury solicitor?
Your first step towards making a birth injury claim should be to contact a solicitor with specialist experience in successful birth injury claims. Our birth injury specialists have a proven track record of outstanding birth injury and neonatal brain injury claims settlements for children, teenagers and young adults with a range of disabilities. You can contact us for free, confidential advice from a solicitor and a preliminary assessment of whether we can help you investigate your claim.
How is a birth injury claim funded?
Once you are ready for us to proceed with investigating your child’s claim, we ensure that your child and your family are fully covered for all legal costs arising from the claim. We provide clear advice on your options for funding your child’s case in the best way for their individual claim. We offer a range of funding options, but most of our clients’ birth injury claims are funded by no win no fee conditional fee agreements (CFA). We do not charge success fees in successful claims for children with birth injury or neonatal brain injury.
Read more about funding.
How do we prove liability for your child's injury?
With funding in place, our birth injury team focus our investigations on proving that the healthcare provider (usually represented by NHS Resolution) was responsible for causing the injury.
We gather factual evidence by listening to the family and capturing their recollections in their witness statements, and from the contemporaneous records of the maternity and neonatal care in the mother’s and child’s hospital, GP and other relevant medical records. Where MNSI, hospital serious incident or NHS Resolution investigations have taken place, we also request copies of their reports.
We gather expert evidence from independent medical experts who review the factual evidence and provide reports on the standard of care and causation of the child’s injury and disability. Complex birth injury claims may require opinions from a combination of experts in multiple specialisms (obstetricians, midwives, paediatricians, paediatric neurologists, neonatologists, radiologists, anaesthetists, GPs).
Once we have our experts’ reports, we meet ‘in conference’ with a barrister and our experts to review the evidence and the strengths and weaknesses of the claim, so that the barrister can draft the letter or particulars of claim. The child’s parents or litigation friend (or young adult claimant) are usually invited to attend this meeting.
What happens after the letter of claim is sent to NHS Resolution?
We start the claim by sending a formal notification or letter of claim to the healthcare provider (usually represented by NHS Resolution). NHS Resolution must answer the claim in a letter of response, which will either deny or admit liability for the child’s injury.
If liability is admitted in the response to the letter of claim, we can proceed immediately to secure a liability judgment for our client.
If NHS Resolution denies that our client’s care was negligent or that any negligent care caused the child’s injury, but our legal and medical experts still believe that our client has a strong case, we issue court proceedings and push the case towards a trial on liability. This does not mean that our client’s case will inevitably go to trial. In our experience, NHS Resolution often concedes liability later, in their formal defence, before exchange of expert evidence or during RTM negotiations, even where liability was previously denied.
What happens once court proceedings are issued?
The formal court proceedings begin when we issue a claim form and serve it on NHS Resolution with particulars of claim, a medical report on the child’s condition and prognosis, and a preliminary schedule setting out the types of compensation that are being claimed.
NHS Resolution must acknowledge service of the claim form and supporting documents and serve their formal defence. The defence can fully or partially admit liability (even where previously denied) or set out NHS Resolution’s defence to the claim.
If liability is denied, we ask the court to give directions for the way forward leading up to a liability trial. Then we follow the procedural timetable that has been ordered by the court. In birth injury claims, the next scheduled steps usually include:
- disclosure of all factual documents held by the claimant or defendant which are relevant to the liability aspect of the case;
- exchange of factual witness statements (by the family, the doctors, midwives etc);
- exchange of medical experts’ reports;
- meetings between experts of the same specialty to identify agreement on medical issues.
This exchange of evidence provides an important opportunity to review the claim with our barrister and experts team, as we can now assess whether NHS Resolution’s denial is fully supported by their medical experts.
What are ADR and RTM negotiations?
A round table meeting (RTM) is a form of alternative dispute resolution (ADR) which provides an opportunity for us to meet with NHS Resolution’s legal team and narrow the issues to be decided at trial or negotiate a liability settlement. In our experience, RTM discussions often lead to admissions and settlements in birth injury claims, even where NHS Resolution previously denied liability.
What happens if the case goes to a liability trial?
Whilst the majority of our clients’ claims are settled out of court, there are rare occasions when the case must be decided by a judge at trial. Boyes Turner’s birth injury solicitors and our trusted barristers are highly experienced trial lawyers with a strong track record of success in the complex cases we take to trial.
We support our clients and their families at all stages of their claim and throughout their preparation and attendance at trial.
How is a child's compensation claim valued?
Once NHS Resolution’s liability for our client’s injury has been established, via an admission of liability, negotiated liability settlement or trial judgment, we can focus on the valuation of our client’s compensation.
Again, the court will give directions and set a timetable for exchange of witness statements, a final schedule of loss and experts’ reports on matters that will determine the value of the claim. In birth injury claims these usually relate to the child’s:
- condition, future prognosis and life expectation;
- lifelong needs for care and case management, therapies, SEN support, specialist equipment and a suitable home;
- lifelong financial losses, such as loss of earnings and pension;
- Court of Protection deputyship fees and other costs associated with managing their compensation.
This stage of the claim can feel quite busy for our client families, as their child may need to be assessed by multiple experts for both sides, but this heightened activity is vitally important as it enables us to value the claim and work towards settlement.
In some cases, particularly where the child is very young and their neurodevelopmental disabilities are still emerging, the case might be adjourned (stayed) until our experts can make an accurate prediction of their future condition and lifelong needs. If an adjournment is necessary, we ensure that the child’s and their family’s needs are met during the waiting time, using substantial interim payments.
How do interim payments help meet my child's needs?
As soon as we have an admission of liability or a liability judgment, we obtain a substantial interim payment. In cases where the case is adjourned until the child reaches a certain stage of their development, multiple interim payments may be obtained during the waiting period.
Interim payments enable us to:
- appoint a Court of Protection deputy to oversee the handling of the child’s compensation;
- appoint a case manager to support the family in meeting the child’s immediate needs;
- pay for urgently needed help with care, therapies and specialist equipment;
- help the family move to more suitable accommodation or make adaptations to their home;
- work with our SEN experts to help the family secure special educational support or school placement for the child;
- help the family plan for the child’s future.
Interim payments are advances from the child’s settlement and are deducted from their final compensation payment.
How is the final settlement reached and approved by the court?
Once we have reached a full valuation of our client’s compensation claim, we send NHS Resolution a final schedule of loss supported by experts’ reports and factual witness statements. NHS Resolution respond with their experts’ reports and a counter schedule providing their own (usually significantly lower) valuation of the claim.
At this stage, we carry out another full review of our case for the sums we have claimed and work closely with the barrister to prepare for settlement negotiations. In some cases, settlement negotiations will be initiated by formal offers to settle being made or received. In most high-value birth injury claims, settlement negotiations take place at an RTM.
Our experienced birth injury solicitors and trusted barristers are highly skilled at negotiating excellent settlements for our clients, and ensuring that their lump sum and PPO compensation payments are structured in the best way to meet their lifelong needs.
All settlements for children or adults lacking full mental capacity must be approved by the court, to ensure that the agreed settlement is in the best interests of the injured claimant. The court normally expects the child’s parents or litigation friend to be present at this formal but short hearing. At the approval hearing, we may ask the judge for additional orders, such as for an anonymity order to protect the family’s privacy.
On the rare occasions when settlement cannot be reached by negotiation, the child’s compensation will be assessed by a judge after hearing evidence at a formal trial called an assessment of damages hearing. Where an assessment of damages hearing is needed, it is often limited to disputed areas of the claim. As always, our client families have our full support during preparation and attendance at the hearing.
Read more about anonymity orders.
What support is available after the claim has settled?
Boyes Turner’s support for our clients with brain injury at birth continues after settlement of their claim.
Our Court of Protection deputy provides continued oversight and support with protecting and managing the child’s compensation, ensuring that money is available as needed to provide for the child’s disability-related needs, and handling administrative, compliance and reporting requirements.
Read more about how we help our clients manage their compensation.
Contacted by NHS Resolution's Early Notification Scheme (ENS), HSSIB or MNSI?
If you are contacted by NHS Resolution, HSSIB or MNSI after the birth of your child, we advise you to contact us for free, confidential, specialist and independent advice straight away. Your child may be entitled to claim substantial compensation.
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