claim for a birth injury
These are the largest claims in Scots law and the ones where families most often believe they are too late. They are usually not. The time limit for a child’s own claim is far longer than almost anyone expects.
The time limit is the first thing to understand
A child’s own claim does not begin to run until their sixteenth birthday, and then runs for three years. A claim about something that happened at birth can therefore be raised until the child is nineteen. Where the child lacks legal capacity, which is the position in many severe cerebral palsy cases, the period may not run at all. Families told years ago that they had missed the boat were very often told wrongly.
What these claims are about
Hypoxic brain injury
Oxygen deprivation around delivery, most often where deterioration on the trace was not recognised or not acted on quickly enough. The usual outcome is cerebral palsy.
Erb’s palsy
Injury to the brachial plexus, usually following shoulder dystocia, leaving weakness or loss of function in the arm.
Delayed delivery
A caesarean section that should have been performed sooner, or an instrumental delivery attempted when it should not have been.
Maternal injury
Third and fourth degree tears not recognised or not repaired properly, with lasting consequences that are life-altering and rarely discussed.
Failure to diagnose in pregnancy
Pre-eclampsia, gestational diabetes or growth restriction not identified or not monitored.
Stillbirth and neonatal death
Where the loss was avoidable. A claim cannot undo it, but it can establish what happened and why.
The legal test
The standard is Hunter v Hanley 1955 SC 200: a usual and normal practice, a departure from it, and a course of action no competent practitioner would have taken. Obstetrics is unusual in how well documented it is — the cardiotocograph trace, the partogram and the timings of every decision are all recorded — which means these cases are often decided on minutes rather than on impressions.
Causation matters as much as breach. It must be shown that the injury would have been avoided or reduced had the right thing been done at the right time. In hypoxic injury that turns on precisely when deterioration began and how long the delay was.
What a serious birth injury claim is worth
These are the highest value claims in Scotland, and the figure is not really about the injury. It is about a lifetime.
Settlement may be a lump sum or, in the largest cases, periodical payments for life. Which is better depends on the family’s circumstances and needs proper advice rather than a preference.
Where the child cannot manage their own affairs
Where a child will never have legal capacity, the family will need to think about guardianship under the Adults with Incapacity (Scotland) Act 2000 as the child approaches sixteen, and about how damages are to be administered. These are separate applications from the claim and they take time, so they should be planned rather than left.
What to do now
- Request the maternity records, including the cardiotocograph traces, and keep them safe.
- Write down what you remember: who said what, and when. Memory of a delivery fades and the record does not tell you everything.
- Do not assume you are out of time. Check.
- Choose a firm that does birth injury work specifically. It is a specialism within a specialism.
A note on this page
This is general information about how the law works in Scotland. It is not advice about your situation and it cannot be, because we do not know your circumstances. Nothing here should be relied on as a substitute for speaking to a solicitor about your own case.
Tell us what has happened
We accept enquiries about personal injury and medical negligence claims. If you send us your details, we will read your enquiry and, where it falls within an area we cover, pass it to one Scottish solicitor practice that handles this type of work so that they can contact you.
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