A Guide to Compensation Package in Birth Injury Claims

For Every Birth. For Every Baby. For Every Family.

The arrival of a new baby should be a joyful and momentous occasion. However, when a birth injury occurs during pregnancy, labour, delivery or shortly after birth, it can often be the most distressing and devastating event that a family will ever experience.

What is birth injury compensation?

As there are numerous different types of birth injuries, the amount of compensation which is awarded in birth injury claims can vary significantly, depending on a number of factors, including the type and severity of the injury suffered, the costs of future care, treatment and accommodation and the wider impact, not only upon the claimant, but also their family members.

We recognise that no amount of compensation will ever be enough. However, compensation in birth injury claims is not just about assigning blame, it is also about mitigating the significant, and often long-term physical, emotional and financial challenges which the claimant and their family members will likely face.

What does a birth injury compensation package include?

As with any medical negligence claim, compensation in birth injury claims is usually made up of two types of damages: general damages and special damages. However, there are also other types of compensation which may be available in fatal birth injury claims.

• General Damages

Broadly speaking, general damages relate to the pain, suffering and loss of amenity (‘PSLA’) which the claimant has suffered, as a result of the negligence.

However, where the negligence has resulted in a maternal or neonatal death, the PSLA will account for any pain, suffering and loss of amenity which the deceased suffered, prior to their death, as a result of the negligence.

• Special Damages

Whereas special damages relate to any ‘out of pocket’ expenses and financial losses which the claimant, and/or their family members, have incurred or which they are expected to incur in future, as a result of the negligence.

In maternal and neonatal death claims, special damages may be claimed for any ‘out of pocket’ expenses financial losses which the deceased and/or their family members incurred, prior to their death, as a result of the negligence.

Special damages are split into two types: past losses and future losses.

• Past losses are financial losses which have already been incurred from the date of negligence up the date of settlement, or trial (whichever is earlier).
• Future losses are any financial losses which are reasonably anticipated to be incurred in the future.

A birth injury compensation package will, therefore, include a comprehensive calculation of all past and future losses, arising from the negligence.

• Other Types of Damages in Fatal Claims

In maternal and neonatal death claims, additional compensation known as the ‘statutory bereavement award’ may be available to compensate for the loss of a loved one.

In maternal death claims, it is also possible for certain people to bring a separate claim for compensation, if they were dependent on the deceased for financial support or services, for example, where a child or spouse of the deceased were dependent on the deceased’s income or for services such as childcare or DIY tasks, that will now need to be carried out by another family member or professional.

How is birth injury compensation calculated?

The way in which compensation packages are calculated in birth injury claims can differ depending on whether the injury occurred to the child or the mother, and whether the injury resulted in the loss of life.

For a more detailed explanation of the different types of compensation available, and how compensation is calculated in different types of birth injury claims, please see our compensation guides below:

• Calculating Compensation for Non-Fatal Birth Injuries to the Child
• Calculating Compensation for Non-Fatal Birth Injuries to the Mother
• Calculating Compensation for Fatal Birth Injuries

The schedule of loss

However, in all birth injury claims, the claimant’s solicitor will prepare a formal document known as a ‘Schedule of Loss’, setting out the amount of general damages (PSLA) which they believe the claimant should be awarded, along with details of any special damages (financial losses) which the claimant has suffered, or is expected to suffer, as a result of the negligence/injury.

The schedule of loss should provide a detailed breakdown of all losses, including any relevant calculations and evidence to support or justify the amount which is being claimed for each type of loss.

A clear and accurate schedule of loss is crucial, particularly in complex and high-value birth injury or fatal dependency claims, as it helps the claimant, the defendant, and often the court, to understand the full extent of the claimant’s losses, ensuring that an appropriate amount of compensation is awarded. It can also strengthen the claimant’s position during any negotiations with the defendant, potentially leading to an earlier, or out of court, settlement.

How is birth injury compensation awarded?

Lump Sum v Periodical Payments

Compensation can either be awarded as a lump sum, periodical payments or both.

A lump sum is one off payment, usually made up of PSLA and past losses, which may cover the cost of the claimant’s immediate financial needs.

Whilst periodical payments mean that the claimant will receive set payments, either monthly or annually, for as long as they are alive. This will often cover the costs of any long-term needs, such as care requirements or specialist therapies, and the amount paid may increase or decrease over time, as the claimant’s need change.

In cases where the claimant requires long-term care and support, compensation will likely be awarded as both a lump sum and periodical payments, providing the claimant with both immediate financial support and long-term financial security. However, in cases where the claimant has made a full recovery or does not have any ongoing medical or care needs, compensation will normally be awarded as a lump sum.

Provisional Damages Award

Usually, when a medical negligence claim settles the agreement to settle will be ‘in full and final settlement’. This means the claimant will be prohibited from bringing another claim, for the same negligent treatment, in the future. This includes where a claimant has spent all of their settlement money, or where the claimant has developed symptoms or injuries which they did not have at the time of settlement.

In birth injury claims, particularly where the claimant is a child, there is often a risk that further injuries or conditions may develop, or become apparent, as they get older. A common example is the future risk of epilepsy in children who have suffered a brain injury.

Therefore, in cases where there is a risk (even if only minor) that the claimant may suffer a significant deterioration in health, or that they will develop a disease or condition as a result of the negligent medical care, the claim may be settled on the basis that if the claimant does in fact develop epilepsy, for example, they can go back to court to request further compensation. This agreement is known as a ‘Provisional Damages Award’, and it will be necessary to obtain an order from the court setting out the terms of the settlement agreement.

Court Approval

In any birth injury claim where the claimant is under the age of 18 or lacks mental capacity due to brain injury or a severe psychological injury for example, the final compensation award must be approved by the court. The court will also decide how the compensation is to be invested, and who will be able to manage the funds on behalf of the claimant.

However, if the claimant is over 18, and providing they have capacity, court approval will not be required, and they will be permitted to manage the funds themselves. This is common in fatal claims, where the claimant is the parent, or a dependent of the deceased.

How is birth injury compensation managed?

For claimant’s who are under 18, or lack capacity, the court will often allow for a portion of the funds to be paid out immediately, to reimburse the claimant for any losses which have already been incurred. For example, general damages for PSLA, past care or therapy costs.

The court will then decide how the remaining compensation should be managed. It is important to remember that whilst a parent or relative may have brought the claim on behalf of the claimant, any compensation which is awarded will belong to the claimant. Therefore, when deciding how any compensation should be managed, the court will always consider what is in the claimant’s best interest.

What happens when the child turns 18?

If a claimant has capacity upon turning 18, as is common in non-brain injury cases, they will be permitted to manage the funds themselves, however they wish. Therefore, they may choose to have their compensation paid out to them direct, or if the compensation is significant, they may prefer for someone else to continue managing it on their behalf.

What are the options for managing compensation?

• Court Funds Office Special Account

In lower value claims (under £100,000) and/or where the claimant is likely to have capacity upon turning 18, the court may order for the funds to be held in the Court Funds Office special account, which pays a set interest rate, with no tax deductions.

• Out of Court Investment

In some cases, it may also be possible to persuade the court that it would be in the claimant’s best interests to allow for the compensation to be invested elsewhere, such as a building society account, ISA or a legal trust.

• Professional Deputy

Where the compensation awarded is a significant figure (over £100,000), or if a child claimant is unlikely to have capacity upon turning 18, the Court of Protection will usually appoint a professional deputy (if not already appointed). A professional deputy will normally be a solicitor with specific expertise in acting for vulnerable clients.

Where a professional deputy is appointed, the court may order for the funds to be paid into a bank account operated by the deputy, and they will be responsible for protecting and managing the compensation on the claimant’s behalf, either until they turn 18 or on a long-term basis, if they continue to lack capacity.

• Personal Injury/Compensation Protection Trust

Alternatively, the Court of Protection may order that a ‘Personal Injury/Compensation Protection Trust’ (‘PI Trust’), is set up on behalf of the claimant.

This is a type of legal trust, designed to safeguard the compensation which the claimant has received. A PI Trust may can also be set up by claimants who are over 18 and have capacity, however, it is not available in either type of fatal birth injury claim.

When setting up the trust, two trustees will be appointed to manage the trust fund, and the trustees will need to provide their consent, if the claimant wishes to spend any of the money.

Where the claimant is over 18, and providing they have capacity, they will be able to set up their trust themselves and appoint whoever they want as trustees. Whereas for a claimant who is under 18, or lacks capacity, the court will need to provide their approval for a PI Trust to be set up, and the court will usually order that at least one of the trustees is a professional trustee. For example, a solicitor, along with the claimant’s litigation friend.

In either scenario, a PI Trust can be very beneficial, particularly if a large amount of compensation has been awarded, as it ensures that the claimant will remain eligible to receive any means tested benefits, both at the time of settlement and in the future. It also helps to protect the claimant’s financial future, by preventing the risk of unwise spending or undue influence from friends or family members.

All options for managing compensation ensure that the claimant and their family are provided with long-term reassurance that the compensation will be used to support the claimant’s ongoing and future needs, guaranteeing that their best interests will always remain at the forefront.

Interim payments and early financial support

An interim payment is a partial payment which can be made to a claimant, whilst their claim is still ongoing.

They can be requested from the defendant at any time, but usually after the defendant has admitted that they were at fault. However, in some cases, they can also be requested from the court, even where no admission has been made.

Interim payment amounts are assessed on a case-by-case basis and will depend on the claimant’s individual circumstances and needs. Though they must not be more than a “reasonable proportion” of the likely overall compensation amount.

They are particularly important in birth injury claims, as they can often take a number of years to reach final settlement. However, interim payments provide the claimant and their family with early financial assistance, allowing them to access the vital care and support that they require, such as professional care costs, housing adaptations and specialist therapies or private counselling. This provides the claimant and their family with security and stability, both in the short and long term.

It is important to note, however, that any interim payments which the claimant receives whilst the claim is ongoing, will be deducted from the final compensation award.

Average birth injury settlements in the UK & why figures vary so widely

Whilst the ‘average’ birth injury settlement figures stated online or birth injury compensation calculators may provide a rough indicator as to the potential compensation which could be awarded in these types of claims, the figures can often be misleading.

In birth injury claims, every case is unique, and the final settlement award will reflect the extent and duration of the specific individual’s needs, meaning it is impossible to establish an accurate ‘average’ birth injury settlement amount.

However, the key drivers behind the final settlement figure, will be the nature and severity of the injury, the likelihood of recovery (if non-fatal) and the extent and duration of any medical and care needs arising from the injury.

For example, in cases of mild, short term psychiatric injury, these can settle for less than £5,000. Whereas cases of very severe, long term psychiatric injury can settle for over £150,000.

In less serious brain injury cases, where the claimant has made a full recovery, with no ongoing symptoms or need for support, these may settle for less than £25,000. Whilst more severe brain injuries, such as cerebral palsy, can settle for millions of pounds, to account for the severity of the injury and the claimant’s lifelong needs.

Fatal birth injury claims tend to settle for lower amounts, primarily due to the limited scope of compensation available, particularly in stillbirth cases. In cases of neonatal or maternal death, this is also due to the absence of any ongoing pain, suffering or care needs. Though this can feel deeply unfair and it is arguable that the current legal framework is somewhat outdated and unjust. An exception to this, however, may be where there is also a significant dependency claim, which is common in maternal death cases.

Some birth injury cases which Fletchers Solicitors have recently settled for varying amounts include:

1. Case Study: Birth Trauma and Psychiatric Injury to the Mother – Final Settlement: £3,800

Our client had a traumatic birth experience and received substandard postpartum care after giving birth to her first child. She suffered from additional pain and distress from her physical injuries and was diagnosed with post-natal post traumatic stress disorder. She was awarded a final settlement figure of £3,800.

2. Case Study: Neonatal Death – Final Settlement: £30,000

Our client’s baby boy, Baby A, sadly passed away, only one week after birth. This was due to negligent antenatal care provided to his mother during labour, resulting in him sustaining a severe hypoxic brain injury due a lack of oxygen and he sadly passed away one week later. Our clients were awarded £30,000, which included PSLA for Baby A’s pain and suffering in the period leading up to his death and a statutory bereavement award.

3. Case Study: Erb’s Palsy Injury to Child – Final Settlement: £320,000

Our client was delivered with the use of forceps, resulting in an Erb’s palsy injury to their left side. They were awarded a final settlement figure of £320,000, which included PSLA and past care costs, though a large sum related to our client’s future care and physiotherapy needs.

4. Case Study: Mild Brain Injury to Child – Final Settlement: £17 million

Our client sustained a mild brain injury, caused by a lack of oxygen and blood flow during delivery. Our client’s injuries were permanent, requiring long term care and support. They were awarded approximately £17 million, which included a lump sum payment and annual periodical payments to cover the cost of their life-long care and case management needs.

Though it is important to remember that no two cases are ever the same, and every birth injury claim is valued on an individual basis.

Why specialist legal experience matter in birth injury claims

Birth injury claims of any nature, can be notoriously complex, requiring comprehensive knowledge and understanding of medical terminology and procedures, as well as experience of dealing with catastrophic injury cases.

However, they are also highly sensitive and having an intimate understanding of the significant emotional and financial strain that such injuries can bring to a family, is crucial in any birth injury claim.

As one of the largest specialist birth injury teams in the UK, Fletchers Solicitors have been helping families to secure maximum compensation payments for over 30 years.

We have extensive experience and expertise in all types of birth injury claims, as well as strong relationships with many leading medical and financial experts.

Our dedicated team of birth injury solicitors are committed to achieving the best possible outcome for every client, whilst ensuring that every family we represent is treated with compassion, empathy and respect and supported every step of the way.

When should you seek legal advice?

In birth injury claims, early investigation is essential in ensuring that key evidence, such as medical records are preserved. It also allows for witness statements and medical expert reports to be obtained, which are crucial to establishing whether or not a defendant was at fault.

Where the claimant is a child, it may be several years before the claim resolves as the full extent of their injuries, prognosis and ongoing needs will often be unclear until they are older, meaning the claim cannot be valued until a full prognosis is provided.

However, if responsibility for the Claimant’s injury can be investigated and proven early on, families may be able to obtain early financial support by way of ‘interim payments’, allowing them to access care and support for their child’s immediate needs, whilst the claim is ongoing. For example, specialist therapies, rehabilitation or professional carers.

Get In Touch Today

We strongly advise families to seek legal advice as soon as possible. If you have concerns about the standard of care which you or your child received before, during or after their birth, please contact us.

We will then arrange a free no-obligation discussion with one of our specialist lawyers, to help you understand whether you have a potential claim.

Further Birth Injury Compensation Guides:

• Understanding compensation in non-fatal birth injury to children claims
• Understanding compensation in non-fatal birth injury to mother claims
• Understanding compensation in fatal birth injury claims