The Crucial Role of National Maternity Guidelines in Stillbirth Investigations
When a baby dies before or during birth, the first question most families ask is: why did this happen and could it have been prevented? The second question is at the crux of any negligence case. The reality is that national maternity guidelines are there to define if and when a missed opportunity for prevention has occurred. And in a legal context, these guidelines are given far more weight than people likely realise.
Guidelines define the legal standard of care
National maternity guidelines aren’t suggestions that healthcare professionals can opt to disregard. In legal terms, they determine what constitutes reasonable care. If a court or ombudsman is looking into whether a maternity service has been negligent, they will be the main regulations they refer to.
The Saving Babies’ Lives Care Bundle, for instance, includes very clear guidance on what steps trusts should take to identify and manage high-risk pregnancies, when to induce labour, and how to monitor fetal wellbeing. If a trust didn’t follow those steps, they can be used as evidence to support a breach of duty claim.
What is being weighed in these cases is not the opinion of legal representatives or campaigners against the position of the trust. It is documented, evidence-based clinical guidance against a demonstrable failure to follow it. Where neonatal deaths or brain injuries have occurred, that is a difficult position for any defendant to defend.
Proving causation is where claims succeed or fail
Determining a breach of duty of care is only part of the process of seeking compensation. The most challenging aspect of any stillbirth claim lies in proving causation. You must show that your baby’s death was a direct result of negligence on the part of the doctors or midwives responsible for your care. Or, in legal terms, that the breach of their duty of care "materially contributed" to the death.
This can be difficult to establish. There are many reasons why a baby may be stillborn, and parents often only seek legal advice when their grief is less raw and their questions about the care they received have not been answered by hospital investigations. There could be several possible explanations, including genetic problems, infections, placental abruption or other complications. If a baby is born alive following oxygen deprivation during labour but dies shortly after birth, families may need to pursue a Neonatal Death Claim rather than, or alongside, a stillbirth claim. Only in cases where competent care could ‘on the balance of probability’ have saved the baby will a claim proceed past the initial stages. This will be based on numerous independent expert opinions.
How deviations are identified in practice
The most common mistakes found in investigations of stillbirth are missed fetal growth restriction (FGR) and mismanaged intrapartum monitoring. FGR, meaning that a baby is not growing at the expected rate in the womb, is one of the biggest risk factors for stillbirth. The guidelines are crystal clear about how this should be monitored and about the use of customised growth charts (GAP), which take into account maternal characteristics instead of a one-size-fits-all threshold. If a trust does not refer for an extra scan, or misinterprets growth measurements using non-customised charts, that failure can be measured against a clear standard. The same is true when it comes to misreading or ignoring abnormal cardiotocography (CTG) traces during labour, which is the most commonly cited clinical failure when it comes to intrapartum care. This is when the fetal heart rate and uterine contractions are monitored. The guidelines clearly describe how the trace should be categorised and what action should be taken. Where a pattern that should have led to escalation but did not, there should be no argument about the action that was necessary.
The role of independent reviews
External investigations and legal reviews are based on all available evidence at the time and are decided by the people directly involved. Any evidence of national guideline use is part of a broader discussion aimed at building a complete patient picture.
What the NHS isn’t showing is that appropriate use of national guidance isn’t just about protecting itself legally. Guidelines also exist to protect patients. This is where the (often later) discussion about guideline use becomes important in legal cases. If investigations repeatedly find that guideline deviation indicates substandard care, the question must become: "Why wasn’t guidance followed?"
What legal accountability actually gives families
Going through a formal legal process is not just about money. Compensation puts families in the position they would have been in had things gone right, where it’s possible to even quantify that, and provides financial security to make life as easy as it can be after the loss of a child.
But it’s also the only way to get a spotlight shone on incompetence or poor practice, and to ensure that lessons are learned. If this isn’t done, then two completely different parties might find that the same failings had been responsible for both tragedies, which is simply not acceptable.