Giving birth is a far-reaching event — both physically and emotionally.
Doctors and midwives have a duty to act with the utmost care during pregnancy, childbirth and aftercare. Where errors are made, however, the consequences can be enormous: permanent injury to mother or child, complications at birth or even death.
In this article we explain when childbirth has gone wrong in legal terms, who is liable, and what you as a parent can do where there is loss caused by medical errors during or around the birth.
What is meant by a medical error in childbirth?
There is a medical error in childbirth where a doctor, midwife or nurse does not act as may be expected of a reasonably competent care provider.
It concerns situations in which:
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signs of complications were recognised too late;
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medical interventions (such as a caesarean section, vacuum extraction or forceps delivery) were carried out unnecessarily late;
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the wrong medication or dosage was administered;
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or the heartbeat or condition of the child was insufficiently monitored.
In short: where a care provider departs from the professional standard and loss arises as a result, there may be medical liability.
Common errors during pregnancy and childbirth
Medical errors in childbirth can arise at various moments: during the pregnancy, the birth itself or immediately afterwards.
Some common situations are:
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Intervening too late where there are complications
For instance with a threatened lack of oxygen (foetal distress) or an obstructed labour. If doctors intervene too late, this can lead to brain damage or a lack of oxygen in the child. -
Incorrect interpretation of CTG or heart traces
Failing to notice abnormal heart-rate patterns is one of the most common causes of liability in obstetric cases. -
Incorrect use of instruments
Think of forceps deliveries or vacuum extractions carried out incorrectly, which can lead to skull injury or a brain haemorrhage in the child. -
Insufficient aftercare following the birth
Sometimes things go wrong because complications in the mother, such as post-partum haemorrhage or infections, are noticed or treated too late. -
Poor communication or handover
A poor handover between the hospital and the midwifery practice, or between different doctors, can lead to serious misunderstandings.
Loss suffered by mother and child
The consequences of medical errors in childbirth can be serious, both physically and psychologically.
For the mother:
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Haemorrhage or infections through insufficient aftercare;
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Damage to the bladder, the pelvic floor or nerves;
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Post-traumatic stress or depression after a traumatic birth.
For the child:
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Brain injury or cerebral palsy through a lack of oxygen;
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Physical abnormalities or fractures;
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Developmental delay through complications at birth.
Where such loss is the consequence of culpable conduct, there may be liability for a medical error.
Read more about this subject in our article Medical liability: when is a doctor or hospital liable?.
Who is liable for an error in childbirth?
Liability depends on who made the error and under whose responsibility the care was provided:
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Was the error made in the hospital? Then the hospital is liable for the acts of its doctors, midwives and nurses.
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Did the midwife work independently (outside the hospital)? Then she or her practice can be directly liable.
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Sometimes there is joint liability, for instance with a poor handover between the hospital and the midwifery practice.
So it is important to establish exactly who was providing the care at the moment of the error.
Our lawyers investigate this carefully on the basis of your medical file and the protocols that applied at that time.
Evidence and medical assessment
In cases about errors in childbirth the medical substantiation is crucial.
What is examined is whether the care providers involved acted in accordance with the applicable guidelines and protocols.
A medical adviser assesses:
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whether there were signs of complications that should have been recognised earlier;
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whether there was timely intervention;
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and whether the care provided met the professional standard.
The outcome of that assessment is often decisive for the question whether there is a medical error and liability.
You can read more about the legal evidence in our article Causal connection with medical errors.
Compensation for medical errors around the birth
Where it is established that the loss is the consequence of a medical error, compensation can be claimed for both the mother and the child.
That compensation can consist of:
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medical costs (including future care and rehabilitation);
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loss of income of the parent or parents;
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the cost of aids, transport or adaptations to the home;
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care costs or support for the child;
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and compensation for pain and suffering for pain, suffering and loss of enjoyment of life.
With permanent injury to a child the loss can run up to a lifetime of compensation, depending on the seriousness of the limitations and the care needed.
Read more about this in our article How can you calculate compensation for pain and suffering?.
Limitation and periods with birth injury
With medical errors around childbirth specific limitation periods apply.
For parents there is in principle a limitation period of five years from the moment they know (or could reasonably have known) that something went wrong.
For children, however, the limitation period only starts running on their 18th birthday.
That means that a child with a birth injury can often bring a claim until the age of 23.
You can read more about this in Limitation in medical liability cases.
Psychological consequences and acknowledgement
Many parents experience feelings of powerlessness, grief or guilt after a birth that went wrong.
Besides financial compensation, acknowledgement of what went wrong is often at least as important.
Holding a party liable can help to obtain clarity about what happened — and to prevent a repetition with other patients.
Our lawyers guide you not only legally but also in human terms, with attention to the emotional impact of your experience.
Why legal help is essential
Medical errors in childbirth are among the most complex liability cases.
The combination of medical knowledge, legal expertise and a feeling for the human impact is essential.
At Arslan Advocaten experienced personal injury and health law lawyers work together with medical advisers and experts in the field of birth injury.
We make sure that:
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all medical information is secured,
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experts assess the error independently,
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and that you receive the maximum compensation you are entitled to.
Our services are free of charge for victims, because we recover our costs from the liable party.
Why choose Arslan Advocaten?
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Specialised in medical errors in childbirth
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Cooperation with medical experts in the field of birth injury
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Legal assistance free of charge for parents and children
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Attention to both compensation and acknowledgement
We assist parents and children in the most difficult situations — with knowledge, care and determination.
Related legal services
Read also
- The employer’s liability for agency workers
- Rear-end collision and personal injury: who is liable and what are you entitled to?
- Single-vehicle accident and personal injury: are you still entitled to compensation?
Frequently asked questions
What is meant by a medical error in childbirth?
A medical error in childbirth arises where a care provider does not act in accordance with the professional standard, for instance by intervening too late or administering the wrong medication, as a result of which loss arises. This can lead to permanent injury to the mother or the child.
When can I hold someone liable for medical errors during childbirth?
You can hold a party liable where it turns out that the care provider did not act in accordance with the professional standard, such as failing to recognise complications in time or the incorrect use of instruments, and this has led to loss.
What are the most common medical errors during a birth?
Common errors are interventions that come too late where there are complications, the incorrect interpretation of heart traces, the incorrect use of instruments and insufficient aftercare following the birth. These errors can have serious consequences for mother and child.
What can I do if I have suffered loss through a medical error during childbirth?
It is sensible to seek legal advice in order to determine whether there is liability and to discuss which steps are possible, such as bringing a claim for compensation.
With suspected medical errors around a birth (birth injury), specific legal and medical standards apply that differ essentially from those for traffic or workplace accidents. In order to substantiate liability and compensation, a careful test against the professional standard and a causal connection are required, without guarantees in advance.
Step-by-step plan with suspected birth injury
- Requesting the medical file: request the complete medical file from the hospital or the midwifery practice (under the Medical Treatment Contracts Act).
- Medical assessment: have an independent medical adviser test whether the care provider departed from the professional standard.
- Holding liable: submit a well-founded notice of liability to the hospital or the midwife, provided the error and the causal connection can be substantiated legally.
- Calculating the loss: map out all the personal injury loss (compensation for pain and suffering, medical costs, loss of earning capacity and adaptations) precisely.