Birth injury and the psychological impact on families: What the law can do

By Victoria Johnson, Pennington’s Manches Cooper

Severe brain injury at birth is one of the most devastating outcomes of clinical negligence. The consequences are not only medical but profoundly personal for the families involved. Part of our role as clinical negligence solicitors is to ensure that families are supported in the aftermath, within the framework that the law allows.

Even in successful claims, the law only provides for financial compensation for the person directly harmed by the negligence, which does not truly recognise the wide-reaching effects on the family members of the injured person. This means that family members are often surprised by the limits of what they can recover, particularly when it comes to psychological harm. However, there is some scope for such support for families.

How Brain Injuries Occur

Common causes of brain injury in babies include:

• Oxygen deprivation before birth, typically occurring in the mother or birthing parent’s late pregnancy or during labour
• Delayed or incorrect treatment of neonatal conditions such as hypoglycaemia (low blood sugar)
• Delayed diagnosis of infections like meningitis or encephalitis during the neonatal period or early years

Children’s and babies’ brains are still undergoing critical developmental processes. Indeed, brain development continues well into our twenties. An injury sustained in infancy can disrupt cognitive, emotional, and physical growth in ways that may not be immediately apparent. Symptoms evolve over time, often surfacing as developmental delays, behavioural changes, or learning difficulties. This complicates both diagnosis and the legal process and, of course, a claim will only succeed if it can be shown that there were failings in the mother or child’s care that caused the brain injury.

The Financial and Practical Reality

The financial reality of a brain injury at birth is often misunderstood. When claims settle for large sums, the media may portray them as a “win” or “windfall”. In truth, compensation is a mechanism to restore, as far as possible, the quality of life lost due to negligence. No amount of money can undo the harm or restore the life that would have been.

As anyone with a disability will know, disabled households have huge financial burdens that other families do not have. For children with brain injuries, this often translates into:

• Specialist housing adaptations
• Professional care and case management
• Equipment and assistive technologies to support communication and mobility
• Educational support and therapies

Families also face a significant administrative burden, managing appointments, coordinating care, and navigating complex medical, legal, and social systems. They require not only legal support but also access to multidisciplinary rehabilitation, educational advocacy, and financial planning advice if compensation is secured. This hidden labour is emotionally and physically draining, and often falls disproportionately on parents already coping with trauma.

The Emotional Impact on Families

The effects of a birth-acquired brain injury extend far beyond the hospital walls. Parents often face emotional strain, financial pressure, relationship challenges and difficulty managing the effects on siblings. Many families feel isolated, overwhelmed, and uncertain about the future. They must become advocates, caregivers, and experts in their child’s condition, often with little guidance or support.

Litigation in complex brain injury cases usually takes years, often because the child’s prognosis needs to become clear before the claim can be accurately valued. There is therefore an additional long-term requirement for the family in dealing with the legal process itself.

For many families we work with, the birth that has not been managed appropriately follows a previous complicated pregnancy or birth. The birthing parent’s medical needs in these situations may be more complex, increasing the risk of something going wrong. It is therefore not uncommon for families to have experienced miscarriage or stillbirth before having a child who suffers a brain injury at birth, compounding the trauma and emotional toll.

As lawyers, our role is primarily to try to secure financial compensation to cover the child’s needs for life. However, what families require often extends beyond the financial, as they have significant psychological needs as well. While damages can be claimed for the pain, suffering and loss of amenity caused to the child, including for psychiatric damage, there is very limited ability to claim the same for the family.

Psychiatric Injury and Legal Limitations

One of the most difficult aspects of these cases is the limited scope for psychiatric support within legal claims. Although the claim is usually managed by one of the parents, it is brought on behalf of the child. This that there is no automatic right to compensation for losses incurred by the parents themselves. Parents can be compensated for items purchased for the child and for some of the time spent caring for them, but the law does not fully recognise the psychological impact.

If the injury to the baby occurred before their birth (i.e. during pregnancy or labour) the mother or birthing parent is considered a “primary victim”, as she has suffered a direct physical injury herself. This means that psychiatric damage caused by the injury can be claimed. If the mother has suffered PTSD or another recognised mental health condition, therefore, she may be able to seek compensation for this injury and to cover the costs of her treatment.

However, there are strict time limits: the mother has three years from the date of her injury to bring a claim. (For the child, the three-year period does not begin until their 18th birthday, or may never begin if they lack mental capacity to litigate.) Compensation for the mother does not cover any previous trauma nor the day to day impact of having a child with a disability itself: only the damage that was caused directly to her by the failings during her labour.

If the injury to the child occurred after their birth, e.g. during the neonatal period, the mother is not deemed a primary victim. She, like the father or any other person psychologically affected by witnessing the child’s injury, is considered a “secondary victim”. In 2024, a Supreme Court ruling made it virtually impossible to bring a clinical negligence claim for secondary victims. Fathers, siblings, and extended family members, despite being deeply affected, are therefore generally not eligible for any psychiatric damages at all.

The limitation of the law in this area is frustrating for injured people, families and their legal teams. In some cases, however, we are now seeking to claim for family therapy, if it is deemed to be in the best interests of the child. While this does not fully cover the gaps in the current law’s position on psychiatric claims, it does go some way to recognising the broader emotional impact of a brain injury, and the need for collective healing.

About the author

Victoria is an associate in the Penningtons Manches Cooper clinical negligence team and specialises in complex, high-value cases for children who have been severely injured at birth. Victoria qualified in 2018, is a member of APIL and has been ranked in Chambers UK for the past three years.