Although all medical negligence claims are extremely emotive one of the most devastating is the loss of a child through stillbirth.
Stillbirth is where a baby dies before birth after 24 weeks of gestation.
It is not always known what causes a stillbirth, but it can sometimes be caused by medical negligence for example if you or your baby were not monitored correctly during the pregnancy or an infection was not diagnosed and treated.
A medical negligence claim following a stillbirth is never really about the compensation. For most families, it is about understanding what happened to their baby, having their questions answered, and knowing whether anything could or should have been done differently. It is also often about accountability and the hope that lessons will be learned to help prevent another family experiencing the same loss.
The legal process, however, can only offer one form of remedy, which is financial compensation. This cannot reflect the depth of the loss or make up for what has been taken away, but it can provide practical support at a time when families are facing the emotional and financial impact of bereavement.
Where a stillbirth has sadly occurred as a result of medical negligence, it may therefore be possible to bring a claim for the following:
Psychiatric injury to the mother
The loss of a baby can have a profound and lasting impact on a mother’s mental health. Where a stillbirth has been caused by medical negligence, an award may be made to reflect the psychological harm suffered, such as depression, anxiety, post-traumatic stress disorder or other recognised psychiatric conditions.
Loss of pregnancy
The law recognises the loss of a baby in pregnancy after 24 weeks gestation and allows an award to be made for that loss. This is assessed by reference to the Statutory Bereavement Award, which is currently set at £15,120. While no sum can ever reflect the depth of a parent’s grief, this award represents a formal acknowledgement of the loss suffered.
Layettes and baby items
Parents will often have purchased clothing, nursery furniture and other items in preparation for their baby’s arrival. A claim can include the cost of these items, recognising the painful reality that they were bought with hope and expectation for a child who should have been here.
Funeral costs
Reasonable funeral expenses can be included in a claim. This covers the costs associated with laying a baby to rest and removes the additional financial burden placed on families at an already devastating time.
Fertility and psychological support costs
Some mothers need specialist psychological support to help them cope with the trauma of loss before they feel able to consider another pregnancy. Where appropriate, the cost of therapy or treatment linked to fertility, conception, pregnancy or childbirth may be recoverable as part of a claim.
Medical and therapeutic expenses
This can include the cost of counselling, psychotherapy or other medical treatment needed to support recovery following the loss. These expenses are recognised as an important part of helping a mother access the care she needs.
Loss of earnings
Where a mother has been unable to return to work, or has needed extended time away from employment because of the psychological impact of the stillbirth, a claim may include compensation for lost earnings during that period.
Impact on Others
The other parent, who has also experienced the heartbreaking loss of their baby, may understandably, have suffered psychiatric harm as a result. It is natural to wonder whether they might also be able to claim compensation for the emotional and psychological impact of this loss.
However, following recent legal decisions in the cases of Paul, Polmear, and Purchase (January 2024), the Courts have clarified that claims for psychiatric injury in these circumstances are no longer possible. The Supreme Court ruled that, for a claim of this type to succeed, the person must have witnessed an “accident.” Sadly, medical negligence, while devastating and life-changing, does not meet this legal definition.
This means that, while the emotional impact on the other parent is very real and deeply felt, the law currently does not allow for compensation in these circumstances. It is an incredibly difficult reality for families, and one that does not lessen the grief or trauma experienced by the surviving parent.
In Memory of Jaxxyn-John
Jaxxyn-John Ashton-Watkins, who was the third baby for Chloe Ashton, died during labour while under the care of University Hospitals of Leicester NHS Trust and East Midlands Ambulance Service NHS Trust on 13 September 2021.
Kirsty Dakin of MDS represented Chloe in a claim against University Hospitals of Leicester NHS Trust and East Midlands Ambulance Service NHS Trust following the death of Jaxxyn-John.
Jaxxyn-John was Chloe's fourth pregnancy, which had run smoothly until the 38th week. At 38+2 weeks (7 September 2021), during an antenatal appointment, she complained of swollen ankles and that she could barely walk.
Chloe was transferred to the Medical Assessment Unit (MAU) where she was assessed, reassured, and booked in for an ultrasound some 6 days later, on 13 September 2021. Chloe was informed that an ultrasound scan had been booked for her, but it was not communicated to her when it would take place. Chloe found out from an external investigation following the death of Jaxxyn-John that the scan had been booked for 3 September 2021.
A few days later, on 12 September 2021, Chloe experienced acute back pain, contractions, and other signs of labour, prompting her partner to call an ambulance. Paramedics arrived but failed to carry out a proper structured assessment of Chloe. Following a call between the paramedics and MAU, Chloe was advised to remain home.
On 13 September 2021, Chloe was due for an iron infusion at Leicester Hospital. Her partner called ahead at 8am and informed staff that she was in a lot of pain and having contractions. However, she was once again advised to stay home and that there were no appointment slots for iron infusion that morning.
At 10.45am, her partner phoned again as Chloe felt like pushing, and this time was advised to call an ambulance. By the time paramedics arrived, Jaxxyn-John was crowning and was born with no signs of life. Both mum and baby were rushed to the hospital, where he was pronounced dead. Despite giving birth to Jaxxyn-John at 11.30am Chloe was not informed for several hours that he had passed away.
The loss of Jaxxyn-John had a devastating impact on Chloe, and we are pleased that both Trusts admitted liability and we were able to secure compensation for Chloe. No amount of money will bring back Jaxxyn-John or und the catastrophic harm caused by the Trusts negligence, but the process has enabled Chloe to receive answers for what happened to her son.
You can watch Chloe’s story here:
Kirsty Dakin is a specialist medical negligence solicitor at MDS who acted for Chloe says ‘I am honoured to have achieved answers and a settlement for Chloe. To lose a child to negligence when it shouldn’t have happened is unimaginable. I am however glad the litigation process is over for her and that the Trusts admitted negligence. I will always remember Jaxxyn-John.
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