I’ve been psychologically traumatised by birth – can I take legal action?
If you have suffered a traumatic birth, you may be wondering whether it is possible to make a claim for psychological harm. Emma Wray and her trainee Darcey Hayes, of Hodge Jones & Allen Solicitors, explain the basis for bringing such a claim
What is medical negligence?
Medical negligence occurs when healthcare professionals provide care that falls below a reasonable standard, which results in avoidable harm or injury. If you can prove that your caregivers were negligent, then you can claim, not just for physical injuries, but psychological harm resulting from the negligence.
You can therefore recover damages (compensation) for psychological injuries, as long as you can show that there has been negligent treatment leading to an injury. You have to show that you have experienced a medically recognised psychiatric illness such as PTSD – you can’t claim for non-medical conditions such as grief, sorrow or distress.
In most cases, when people claim for a psychiatric injury it’s in addition to the claim for a physical injury. It’s unusual for people to claim for a purely psychiatric injury, though not impossible. The key to success is to make sure you have supportive psychiatric evidence showing that your mental health problem was the result of negligent care during labour or birth.
What about a witness to a traumatic event?
The law classes people who have experienced psychological harm as either a primary or secondary victim. A ‘primary victim’ is the patient who received the negligent treatment. If you have developed PTSD as a result of the negligent care you received while giving birth, then you are the primary victim.
A secondary victim is someone who has suffered psychological harm as a result of witnessing the injury or death of a loved one – this could include someone who has witnessed their partner’s traumatic birth.
If you’re a secondary victim wanting to bring a claim for psychological injury, you need to:
Have close ties of love and affection with the primary victim.
Have been close to the incident in time and space. So if the incident happened in the birthing room, you need to have been in the birthing room at the time.
Have seen the traumatic event or its immediate aftermath, rather than have heard about it from a third party.
In the case of traumatic birth, there’s a good chance that a birthing partner will be able to fulfil all three criteria. However, since a Supreme Court judgement in 2024, it’s become much more difficult to make a claim as a secondary victim of medical negligence. The Court ruled that a secondary victim could only make a claim for psychological harm if they had witnessed an accident (a car crash, for example), not if they had witnessed an act of medical negligence followed by a medical crisis. So if you witness your wife or partner experiencing negligent care that leads to your baby dying or being brain-injured, for example, you are unlikely to be able to make a claim as a secondary victim.
In the same ruling, the Supreme Court judges said that, while medical practitioners owe a duty of care to patients, they don’t owe a duty of care to the patients’ close relatives. To put it another way, a doctor or midwife has a responsibility not to cause unnecessary harm to a woman giving birth, but does not have a similar responsibility to the family member witnessing the birth.
This ruling has made it much harder to bring a claim against an NHS trust as a secondary victim, but if you think you might have a claim, then do discuss it with a medical negligence lawyer.
How do I bring a claim for psychological harm?
If your solicitor thinks you can bring a claim for psychological harm as part of your medical negligence claim, they will arrange for you to be examined or assessed by a medico-legal expert, usually a psychologist or a psychiatrist. The expert will prepare a report on the type of psychological injury you have suffered, the likely cause of this injury and the duration of your psychological injury. (You might, for example, have suffered a psychological injury such as PTSD and recovered, or you might still be experiencing symptoms.)
If the expert thinks you need treatment, they will provide their view on suggested treatment or therapies, along with the cost.
If I win my claim for psychological harm, what will happen?
There are two types of compensation you can receive: general damages and special damages:
General damages include compensation for pain, suffering and the reduction in quality of life you’ve experienced as a result of the harm. The judge will determine how much compensation you will receive in line with established guidelines.
Special damages are compensation for other financial losses resulting from your physical injury, such as lost earnings or payment for private medical treatment. There is also scope to claim for other special damages arising from your psychological injury, for example loss of earnings and private medical treatment.
Hodge Jones & Allen are one of our Trusted Legal Partners. You can find out more about them here. You can contact Emma for initial free advice at EWray@hja.net
