By Chloe Perkins and Claire Stoneman
Losing a baby is one of the most difficult experiences a parent can go through. Sometimes the reasons that lead to a stillbirth or a neonatal death (the death of a baby within the first 28 days of their life) are clear and sometimes less so.
The heartache of losing a baby can be amplified if there are concerns about the medical care provided to the baby or mother during the pregnancy, labour or after birth. This can understandably lead the family to question whether their baby’s death may have been avoidable. Parents whose baby dies or is stillborn want to understand why it happened and having this understanding can help them and their family come to some kind of peace with their loss.
Steps that can be taken
There are various steps a family can take to get answers but, if there are concerns about the care provided to either the mother or the baby, the first step is to make a complaint to the hospital where the baby was born (or died if this was at another hospital).
If the family wish to make a complaint, it can be made to the NHS within 12 months of the stillbirth or death. There is a standard procedure the NHS must follow once a complaint is received and it is overseen by PALS (Patient Advice Liaison Service). After submitting the complaint, the NHS will respond about the investigations they are going to do and the timescale for providing a formal response with the result of their investigation.
Hospital investigations
Regardless of whether or not a complaint is made, all hospitals have to thoroughly investigate what happened when a pregnancy results in a stillbirth or a neonatal death. The hospital investigation has to consider and review the care provided to both mother and baby, before, during and after birth (if it’s a neonatal death) using the Perinatal Mortality Review Tool (PMRT). The hospital must assess the care provided against the relevant guidelines.
It is important for parents to understand the reason for their tragic loss and have the opportunity to ask question and have those questions answered. If there are concerns that something went wrong with the care provided a further investigation may be carried out. There are many types of investigations which depend on the circumstances of the stillbirth or death but the most common ones are HSIB (Health and Safety Investigation Branch) and SII (Serious Incident Investigation), which is sometimes called a Serious Untoward Investigation (SUI) or Root Cause Analysis (RCA).
- HSIB – This investigation is carried out by an organisation which is totally independent from the hospital. HSIB investigate incidents where the baby has died at term (37 weeks gestation) due to stillbirth or early neonatal death (within 28 days of birth). Once a referral has been made by the Hospital, HSIB will contact the family, gather evidence and then visit the hospital where they can interview staff and review the records. HSIB will then analyse the evidence and provide a detailed report which will then be shared with the family. HSIB aim to involve the families as much as they can in their investigation so their recollection of events can be considered. Even though family involvement is not mandatory, it is recognised that this can be beneficial for both the family and the investigation.
- SII – This is an internal investigation by the hospital itself. It is part of the standard NHS care for any baby who dies an unexpected or avoidable death. The hospital will review the care provided during the pregnancy, labour and postnatally. The main purpose of this investigation is to establish what led to the stillbirth/death so the hospital can learn from what happened and, if possible, prevent the likelihood of similar events happening again. This is so important to help reduce the number of avoidable baby losses in the UK.
Post- Mortem
Alongside the hospital investigations and shortly after the baby’s stillbirth/death, the family will be asked if they wish for a post-mortem to be carried out. The post-mortem is a careful internal and external examination of the body and is performed by a paediatric pathologist. The purpose of the examination is to understand what may have caused or contributed to the baby’s stillbirth/death. All parents should be offered the choice of whether they wish a post-mortem to be carried out or not and it cannot be done without the parents’ consent unless ordered by a coroner.
The post-mortem process can take between 1–3 weeks. It then usually takes about a further 6–10 weeks for the results and for the pathologist to prepare a report. Sometimes it can take longer for a final report to be prepared if further tests are required. Once the post mortem results are available, a counselling appointment should be made to discuss the results with the parents. This meeting is usually conducted by the consultant and the bereavement midwife. Statistically, approximately 50% of post-mortems performed identify a cause or contributory factor.
If the parents choose not to have a post-mortem, they can choose to send the placenta for histological examination. This process screens the placenta for any signs of infection that may have been present and attempts to identify any possible causes of the stillbirth/death.
The main aim of these investigations is to understand the baby’s medical condition and/or cause of death. These investigations may also highlight problems which could affect future pregnancies so that doctors can assess the chances of this reoccurring and thereby treat both Mum and baby accordingly in a Rainbow pregnancy.
Inquests for Neonatal deaths
An Inquest is the formal investigation to determine the circumstances which led to the baby’s death. An Inquest will only be held if the death occurred after the baby was born alive and if it is not clear from the medical history as to why the death occurred. An Inquest does not take place if the baby is stillborn.
The Inquest is conducted by the coroner, who has the power to question witnesses such as the medical staff involved. The aim of the Inquest is not to determine who was to blame for the death but to establish why, how, when and where the baby died. Inquests can be helpful to gather information to ascertain if negligent care contributed to the death in any way. It will not apportion blame however.
If a reportable death occurs, this being a death where the cause is uncertain, the coroner will review the information and decide if an Inquest is necessary. The coroner can then request further information or immediately confirm that an Inquest will be required. If a post-mortem hasn’t been performed, it is likely that the coroner will order one. The coroner may then organise a Pre-Inquest Review, in which all interested persons are invited to discuss the evidence, identify witnesses and discuss the relevant medical and legal issues. When all investigations have concluded, an Inquest date will be fixed. The Inquest will then take place and the coroner will give their conclusion as to the cause of death.
An Inquest can be a daunting and scary experience for a family. A coroner’s officer will be the main point of contact and will liaise between the family and the coroner. The family do not have to attend the Inquest, unless called as a witness, but have the right to choose to do so as it can provide them with an opportunity to get answers to some of their questions. The parents can write to the coroner outlining their main concerns ahead of the Inquest and the coroner will ensure these issues are addressed. The parents can also request copies of the documents provided to the Coroner, however, the coroner does not have to provide these if they consider they are of an upsetting nature.
An Inquest can also be extremely distressing and emotional for the parents and wider family. Anyone can attend an Inquest so therefore the family can ask other loved ones/friends and professionals to accompany them for support. Families can also have legal representation at an Inquest to ask questions on behalf of the family and to guide and support them through what is often a very emotional hearing. It is important to have good support both before, during and after the Inquest. At Enable Law we have supported many families through this process for many years and are here to help and support you.
Legal claims
Once the investigations have concluded it may appear that there was a failure in the care which resulted in the baby’s stillbirth/death. The family may also feel that their questions have not been answered and they still have concerns about what happened. This is a devastating position to be in and some families look to obtain compensation for their loss. Although we understand that no amount of money can rectify what happened, it can provide financial support in a time of hardship and the legal process can provide answers to questions that were left unresolved. In many cases the compensation can provide financial support to families needing to access fertility treatment for their Rainbow baby.
When a family decide to bring a legal claim, it is important to choose a firm that specialise in baby loss cases. Bringing a claim for negligence can be stressful in itself. Bringing a claim about the loss of a baby is unimaginable. Therefore, it is really important to have understanding, experienced and empathic representation from a legal expert who has supported other families through the same process.
Although starting a legal claim is often not the priority when a baby dies, it is important to start the process as soon as the family feel able. In most circumstances, there are three years following the stillbirth or death of the baby to bring a clinical negligence claim.
There is no set compensation for negligence resulting in the stillbirth or death of a baby and each case will differ depending on the circumstances. However the following financial losses will be considered:
- Funeral expenses
- Loss of Earnings
- Costs for counselling, therapy and psychiatric treatment
- Care costs
- Emotional pain and suffering
Each case is different but, on average, it takes 2-3 years for a baby loss claim to settle. Families can choose to be as fully or as little involved in the claim as they wish, or they can appoint a family member to liaise with the solicitor on their behalf.
If you believe that the treatment you received may have been negligent, then we can support you in looking into this and obtaining some answers for you and your loved ones. Contact us today to find out.
