Infant Bone Fractures During Birth: Can You Claim Compensation?

When a baby suffers a bone fracture during birth, it can be a deeply distressing experience for the whole family. In some cases, the fracture is an unavoidable complication. In others, it is the result of medical negligence – and parents may be entitled to claim compensation.

How do bone fractures occur during childbirth?

Infant bone fractures are not uncommon in South Africa, particularly in under-resourced public hospitals and clinics where staffing and equipment may be limited.

Fractures to the arms or legs can occur when excessive force is used during delivery – for example, when repositioning the baby or assisting with a difficult birth.

Fractures to the neck, back or skull are more often associated with the inappropriate use of assistive devices such as forceps or vacuum extractors.

It is important to note that not every birth fracture is the result of malpractice. Newborns’ bones are naturally soft and fragile, and fractures can sometimes occur even when every reasonable precaution has been taken.

It is also worth noting that force-related birth trauma is not limited to fractures.

Brachial plexus injuries – damage to the network of nerves controlling the arm and hand – are also relatively common, and typically occur when the baby’s shoulder becomes stuck during delivery, a condition known as shoulder dystocia.

The most common fractures in newborns

The fractures most commonly seen in newborns are:

• clavicle fracture (broken collarbone) – the most common birth fracture overall
• fractured scapula (shoulder blade)
• skull fracture.

Fractures to the arms, legs, hips and wrists, while less common, can also occur during the birth process.

When does a birth fracture constitute malpractice?

Medical malpractice arises when a hospital, doctor or midwife fails to meet the standard of care that a reasonably competent healthcare practitioner would have provided in the same circumstances.

For a claim to succeed, it must also be shown that this failure directly caused the fracture – it is not enough to prove negligence alone.

Examples of conduct that may constitute malpractice include:

• misuse of forceps or vacuum extraction equipment
• the use of excessive force during delivery
• failure to identify and manage foetal distress
• failure to order or perform a timely C-section.

A South African case involving a newborn bone fracture

In N.P v MEC for Health, Eastern Cape, the court found that medical staff had failed in their duty of care, and that their negligence was the direct cause of the baby’s injuries – a fractured right arm and brachial plexus injury to the left arm.

In handing down judgment, the court ruled that medical staff had acted negligently on more than one occasion. This included the failure to:

• advise the mother of the risks associated with delivering a very large baby
• diagnose and devise a management plan for possible shoulder dystocia
• perform a scan, episiotomy or C-section.

The application of excessive traction during delivery was found to have caused both the fracture and the brachial plexus injury.

The court also found that hospital staff had failed to diagnose and treat the baby’s injuries following delivery.

Factors affecting compensation

The compensation awarded will depend on the severity of the injury and the medical costs involved – past, present and future.

Depending on the circumstances, the court may also award general damages for pain and suffering, loss of future earnings and loss of amenities of life.