Finding answers when maternity care fails
Accountability can drive change, and save lives, writes Jonathan Howat
No parent should ever have to bury their child. Yet for some families in Scotland, that is the reality when maternity care falls below acceptable standards.
We are currently acting for a mother whose daughter suffered a catastrophic brain injury at birth and tragically died shortly after her second birthday. Legal proceedings are ongoing and no admission of liability has been made. However, an NHS Adverse Event Review concluded that, on the balance of probabilities, a different treatment plan or delivery of care would have been expected to result in a different outcome.
Behind every medical negligence case is not just a clinical timeline but a family whose life has been permanently altered.
The child in this case was diagnosed with Grade 3 hypoxic-ischaemic encephalopathy (HIE), the most severe form of brain injury caused by oxygen deprivation. HIE can result in profound neurological damage, cerebral palsy, severe developmental delay and life-limiting complications. While not every tragic outcome is caused by negligence, there are circumstances where warning signs are missed, concerns are not acted upon, or treatment is delayed where it ought not to be.
In cases of moderate to severe encephalopathy, therapeutic hypothermia, a cooling treatment that, when indicated and provided within six hours of birth, can significantly reduce mortality and improve long-term outcomes, forms part of recognised clinical management. Where indicated interventions are delayed or not provided in a timely way, the consequences can be devastating.
This case does not stand in isolation. A recent investigation revealed that nearly £100 million has been paid out by NHS Scotland in maternity negligence claims over the past five years. Obstetric cases are among the most serious and costly faced by the health service. Those figures are not simply financial liabilities; they represent children, parents and futures changed forever.
Families who pursue legal action are rarely motivated by compensation alone, if at all. What they seek are answers. They want to understand what happened, why it happened and whether it could have been prevented. They want assurance that lessons will be learned.
Medical negligence claims in Scotland require proof that care fell below a reasonable professional standard and that this failure caused or materially contributed to injury. They involve detailed examination of records, independent expert evidence and assessment of long-term care needs. They are complex and emotionally exhausting.
But they are also one of the few mechanisms available to families to secure independent scrutiny of maternity care.
We are seeing more families coming forward after experiencing what they believe to be below-standard care in maternity units across Scotland. This should concern policymakers as much as families and clinicians. Pregnancy and childbirth are serious medical events. They require vigilance, strong leadership and a culture where patient concerns are taken seriously.
The overwhelming majority of NHS staff work with dedication under immense pressure. But when systems fail, it is families who carry the consequences.
No legal process can undo the loss of a child. But accountability can drive change, and change can save lives.
That must be our shared objective.
Jonathan Howat is a Partner with Thompsons Scotland LLP