Babies can sustain brain injuries as a result of their brain not getting enough oxygen or blood flow, before, during or after birth. This is called hypoxic ischemic encephalopathy or HIE.

Typically, HIE is classified into 3 categories: mild, moderate and severe, and some babies may not survive. Those who do may go on to develop well without lasting effects and others may face longer-term physical and cognitive challenges. Those with moderate to severe HIE are at a higher risk of long-lasting damage, including physical and cognitive disabilities.

Where a child has moderate to severe HIE, they may be treated with Therapeutic Hypothermia, also known as cooling. This is where the baby’s body temperature is reduced for 72 hours to slow down the progression of any damage caused by the HIE. Cooling can be beneficial to babies with moderate to severe HIE as it can reduce the risk of long-term disability.

Subtle brain injuries

Some babies who have mild HIE recover quickly and do not experience any long-term harm. While thankfully this is the case for many families, we find in some of our cases that evidence of a lasting injury to the brain only emerge as the child grows up.

In recent years, mild HIE has been increasingly linked to adverse outcomes including brain injury and neurodevelopmental impairment. While it was previously thought that those with mild HIE have very good prognosis, research suggests that some children with mild HIE are at risk of neurodevelopmental impairments, which may not become evident until later in childhood.

Similarly, babies who have suffered moderate to severe HIE but have undergone cooling treatment may also be at risk of neurodevelopmental impairment, even where the child has been largely protected from physical disabilities such as cerebral palsy.

For some children affected by mild HIE or who have undergone cooling treatment, difficulties may start to present later, between ages 6-10 years, although it can be earlier or later.

Their difficulties often start to become apparent when they start school or transition into secondary school. Difficulties may include behavioural problems anxiety, depression, social problems, attention and learning difficulties including language and literacy problems, problems with executive functioning and with the ability to coordinate and control movements based on visual stimuli.

Some children may still retain intellectual ability on par with their peers, but may face difficulties in areas such as social functioning, working memory, cognitive flexibility, emotion and inhibition control, all of which play a critical role in daily life including academic performance, employment and personal relationships.

Our experience of subtle brain injuries in legal claims

Some birth injuries are unavoidable, others result from medical negligence.

At Fieldfisher, we represent many families looking after children injured around the time of their birth. We are also increasingly taking on cases where children have made a good recovery after birth and only show signs of a subtle injury later in their childhood, including behaviour and cognitive difficulties, learning difficulties and/or ASD/ADHD symptoms.

Several families have told us that they were reassured there was no evidence of a brain injury on the radiology, that their child was doing well and meeting their milestones, which meant they were discharged from paediatric services. When difficulties present later , their children then do not get appropriate follow up or investigations into whether a possible birth injury may be linked to their presentation.

Some indicators that a child may have suffered a brain injury around their birth can include:

• Signs of hypoxia ischemia during labour on the cardiotocography monitoring (CTG) such as decelerations in the baby’s heart rate, fetal distress and/or persistently high heart rate (tachycardia).
• Needing resuscitation after birth due to low or absent heart rate and/ or not breathing independently.
• Evidence of metabolic acidosis on the cord gases.
• Floppy/quiet after birth.
• Difficulty feeding.
• Seizures/abnormal EEG.
• Cooling treatment.
• Needing ventilation or other medical interventions after birth.
• There may or may not be evidence of injury on an MRI scan.

In several of our cases, there has been evidence of HIE around the time of the birth, even though there has been a ‘normal’ MRI or other neuroradiological scan, there may have still be a lasting injury to the brain.

There may not be evidence of a ‘typical brain injury’ on any MRI scans , for example there may be no evidence of a chronic partial hypoxic injury (where the blood/oxygen flow is reduced for a long period of time) or an acute hypoxic injury (where the blood/oxygen flow is completely cut off). Subtle injuries can still occur and cause developmental issues without the injuries being visible on neuroimaging. Sometimes, there can be microscopic damage to the brain that is subtle and spread over different areas of the brain, so is not clearly visible on imaging. Also, cooling treating can change the appearance of the brain on MRI scans, but there can still be more subtle, milder developmental learning problems as a result of the original brain injury.

HIE may be the most likely cause of more subtle injuries where there is evidence at the time of the birth and this is particularly true where there is a lack of evidence to support other possible explanations for the difficulties experienced, such as no family history of ASD or ADHD, no genetic/metabolic disorders and no structural abnormalities within the brain.

We have been successful in bringing claims where there is evidence of a birth injury that could have been avoided with different management, even where the injury does not present as ‘typical’ and signs only start to develop later in childhood. In such a case, we establish that an injury around the time of the birth is the most likely explanation.

A good example is our client Matthew. He was delivered by forceps after labour became obstructed by shoulder dystocia. After his head was delivered, his body became stuck, delaying his delivery.

Matthew was born in a poor condition and needed resuscitation. His parents were advised that he would have severe brain damage. He did show evidence of a hypoxic injury after birth and started to experience seizures. He underwent therapeutic cooling for moderate HIE. An MRI showed some mild abnormalities that could be evidence of HIE.

Matthew developed well, achieving his developmental milestones although he was noted to have difficulties with personal social skills and coordination.

After liability was settled, Matthew’s case was stayed until it was possible to assess whether he had suffered any lasting injuries. As Matthew was doing well academically, his claim remained stayed until he was a teenager. It then become evident that while Matthew was doing well academically, he struggled in areas such as social communication, anxiety, emotional regulation and tasks that require planning. While some of these difficulties can be similar to those with ASD, there was no family history of it and his difficulties did not fully meet the diagnostic criteria.

Matthew was assessed by experts in neurology, neuropsychology and educational psychology who all attributed his difficulties to his injuries at birth and considered that these difficulties would likely have a long-term impact on his future relationships and career path.

Although Matthew has attained qualifications that sould allow him to enjoy a good career, his other difficulties caused by his brain injury will likely limit his ability to progress beyond a certain level.

His claim therefore includes an amount for his likely loss of earnings, in addition to therapeutic support to help him manage his difficulties.

Get in touch

Please visit our website to read more about different types of brain injury claims and to hear from clients about their successful claims.

If you would like to speak to someone about whether you or a family member has been affected by a subtle brain injury, please contact me directly at [email protected] or on 0330 460 6147.

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