MEDICAL NEGLIGENCE

Calculating Compensation For Fatal Birth Injuries

Author Trevor Ward Partner Solicitor, Head of Birth Injury Unit

Last Updated 9th July 2026

For Every Birth. For Every Baby. For Every Family.

Sadly, medical negligence during pregnancy, labour, delivery or shortly after birth can sometimes prove to be fatal for the mother and/or her baby. The amount of compensation which is awarded in fatal birth injury claims can vary significantly, depending on whether the negligence resulted in the loss of the mother or baby’s life, when the death occurred and who else was affected by the death.

What this guide covers

Types of fatal birth injuries, including the legal differences between a stillbirth and neonatal death
The relevant legislation and how this affects the compensation available in fatal birth injury claims
Compensation under The Law Reform (Miscellaneous Provisions Act) 1934, including claims on behalf of the deceased’s estate (estate claims)
Calculating general damages
Calculating special damages
Compensation under The Fatal Accidents Act 1976, including claims on behalf of dependents of the deceased (dependency claims)
Statutory bereavement award
What is financial dependency compensation and how is it calculated?
What is services dependency compensation and how is it calculated?
Other types of damages in dependency claims
Other considerations when calculating compensation in fatal birth injury claims
Personal injury discount rate
Interest on general and special damages
Double recovery

Please note, this guide covers compensation for fatal birth injuries.

If you, or your child, have suffered a non-fatal birth injury, as a result of medical negligence during pregnancy, labour, delivery or shortly after birth, please see our other birth injury compensation guides below:

Calculating Compensation for Non-Fatal Birth Injuries to the Child
Calculating Compensation for Non-Fatal Birth Injuries to the Mother

Types of Fatal Birth Injuries

There are three types of fatal birth injuries which may occur during pregnancy, labour, delivery or shortly after birth.

Stillbirth: This is where a baby dies, after 24 weeks but prior to delivery (if this happens before the 24-week mark, it’s classed as a ‘miscarriage’).

Neonatal Death: This is where a baby is born alive but dies within the first 28 days of life.

Maternal Death: This is where the mother passes away, either during pregnancy, delivery or the post-partum period.

Stillbirth v Neonatal Death: The Legal Differences

It is important to be aware of the legal differences between a stillbirth and a neonatal death, as this affects how the law recognises your baby, and who is able to bring a claim.

In stillbirth cases, as the baby passes away before birth, the law classifies the unborn baby and the mother as one legal person, which means that a claim cannot be brought on behalf of the baby. However, the mother may bring a claim on her own behalf, if she has suffered physical and/or psychiatric injury, as a result of the negligence.

In neonatal death cases, as the baby was born alive, even if only for a short time, the law considers the baby to be a legal person and therefore, a claim can be brought by either the mother or father on behalf of their baby. The mother may also be able to bring a separate claim for her own psychiatric injury, but only if the injury, which caused the baby’s death, happened prior to their birth.

However, a father will not usually be permitted to bring a claim for his own psychiatric injury, in any event. For example, if they witnessed the death of their baby due to an injury which occurred during delivery. There are certain exceptions to this, however, such claims are very difficult to pursue.

We recognise that these differences can feel deeply unfair, especially for the father, as the emotional loss is often just as profound for both parents in either situation. However, the law does provide different ways to seek justice and recognition in both cases.

Fatal Birth Injury Claims: The Legislation

When a loved one dies as a result of medical negligence, the compensation which is available comes from two pieces of legislation:

The Law Reform (Miscellaneous Provisions) Act 1934: This allows for a claim to be brought on behalf of the Deceased’s ‘estate’, which essentially covers any compensation which the Deceased would have been entitled to, had they brought a claim on their own behalf, prior to death. It is important to note that for a neonatal death, this type of claim would be separate to any claim for the mother’s own psychiatric injury.

The Fatal Accidents Act 1976: This allows for certain family members to claim a statutory bereavement award to recognise grief and loss, separate from other financial losses (only in neonatal and maternal deaths – see below). It also permits a limited number of individuals to bring what is known as a ‘dependency claim’, if they were dependent on the Deceased for financial support and/or services.

Whilst no amount of compensation will ever make up for the loss of a baby or loved one, in all fatal birth injury claims, the purpose of the compensation is to provide the Deceased’s family with the financial means to overcome access the support required to rebuild their lives after such a devastating loss.

Compensation Under The Law Reform (Miscellaneous Provisions) Act 1934

General damages

General damages are awarded for any pain, suffering and loss of amenity (‘PSLA’), caused by the negligence.

Stillbirth Claims: General damages will cover any PSLA which the Claimant (i.e. the mother) has suffered, since the date of the negligence. Where the Claimant has suffered both physical and psychiatric injuries, the amount awarded will reflect both types of injuries and any subsequent consequences.
Neonatal and Maternal Death Claims: General damages will cover for any PSLA which the Deceased suffered, between the date of negligence to the date of death.

Calculating General Damages

When calculating general damages for PSLA in any type of fatal birth injury claim, consideration will be given to various factors in order to ascertain the appropriate amount to award.

In stillbirth claims, this will include the nature, severity and duration of any physical and psychiatric injury which the mother has suffered, as a result of the negligence/stillbirth and the extent to which it has impacted her life, work, relationships etc.

In neonatal and maternal death claims, this will include the length of time that the Deceased was alive for, following the negligence, the extent and severity of any physical and emotional pain or discomfort which the Deceased suffered during this period, alongside their level of consciousness.

Information will be gathered from the medical records of the Claimant, or the Deceased, along with any expert reports and witness statements which have been obtained.

However, solicitors and the court will also refer to the ‘Judicial College Guidelines’, which set out estimated compensation brackets, for the value of various different types of injuries. They provide helpful guidance for both solicitors and the court when determining the appropriate amount of compensation which is to be awarded for general damages.

For example:

In stillbirth claims, where the mother has suffered a moderately severe psychiatric injury, significantly impacting her life but with a reasonable chance of recovery, the estimated compensation bracket is currently £23,270 to £66,920. Whereas for a less severe psychiatric injury, lasting only a short period of time, the estimated compensation bracket is currently £1,880 to £7,150.
In neonatal and maternal death claims, where the Deceased falls unconscious immediately, or very shortly after injury and passes away within one week, the estimated compensation bracket is currently £1,680 to £3,410. Whereas in cases where the Deceased has full awareness for a short period, followed by fluctuating levels of consciousness, intrusive treatment or significant physical injuries and passes away after a number of weeks or months, the estimated compensation bracket is currently £15,300 to £29,060.

Though, it is important to note that the guidelines are not fixed brackets, and they are only used as a starting point. The full circumstances of each individual case will always be carefully considered before reaching the final figure.

Special damages

Special damages relate to any actual ‘out of pocket’ expenses and financial losses, incurred as a result of the negligence.

Under the Law Reform (Miscellaneous Provisions) Act 1934, families may be entitled to claim certain funeral expenses, such as the cost of a wake or memorial service, cremation or burial services and a headstone, if these were paid for by the Deceased’s estate.

The other types of special damages which can be claimed, will depend on whether the case involves a stillbirth, neonatal or maternal death.

In stillbirth claims, special damages may include:

Layette expenses i.e. any items bought for your baby which you can no longer use such as clothing, prams and cots
Private therapy or counselling costs

Loss of earnings if you have had to take time off work, as a result of your physical or psychiatric injuries
Care and assistance by family members in caring for you directly, or your other living children
Travel expenses relating to the negligence itself, such as travelling to and from therapy or counselling sessions

Costs associated with achieving and undergoing an additional pregnancy to complete your family, for example, through IVF

In neonatal death claims, special damages may include:

Layette expenses

Travel expenses relating to the negligence itself, such as travelling to and from the hospital that your baby was in
Costs associated with achieving and undergoing an additional pregnancy to complete your family, for example, through IVF
If the mother also has a claim for her own psychiatric injury, additional damages may include:
Private therapy or counselling costs
Loss of earnings if you have had to take time off work, as a result of physical or psychiatric injuries
Travel costs for any appointments relating to her psychiatric injury, such as for therapy or counselling
Care and assistance by family members in caring for you directly, or your other living children

In maternal death claims, where the Deceased was alive for a period of time, following the negligently caused injury (‘the injury’), special damages may include:

Care and assistance provided either to the Deceased or any other living children, by family members (gratuitous care) or professional carers (not provided by the NHS)
Loss of earnings for the Deceased (or family members, such as the Deceased’s partner if related to the negligence e.g. to care for the Deceased, or her children)
Medical expenses not covered by the NHS i.e. private treatment costs

Calculating Special Damages

Past Losses

In stillbirth claims, past losses include any losses incurred by the baby’s parent(s), between the date of the injury i.e. the stillbirth to the date of settlement, or trial (whichever is earlier).

Whereas, in neonatal and maternal death claims, past losses include any losses which the Deceased, or their family, had incurred, between the date of the injury to the date of death.

Past losses can often be calculated using evidence, such as medical records, receipts and bills which may show the costs of things such as any items which the family had purchased for their baby, or payslips, employment contracts and bank statements in order to establish any past loss of earnings.

If another family member has had to take time off work or provide additional care and assistance as a result of the negligence, it may also be possible to claim for the family member’s loss of earnings or the costs of any care which they have provided (known as gratuitous care).

This means it is very important to keep evidence of any ‘out of pocket’ expenses and financial losses which have been incurred as a result of the negligence, such as receipts, invoices, bank statements, payslips etc. Though we appreciate this may not always be possible.

Future Losses

In stillbirth claims, as a claim can only be brought on behalf of the mother for her own injuries, she will be entitled to claim special damages any future losses which she is reasonably expected to incur, as a result of the negligence. For example, future psychiatric therapy, counselling or IVF treatment on a private basis.

Whereas in neonatal and maternal death claims, there is no entitlement for the Deceased’s family to claim special damages for future losses on behalf of the Deceased’s estate. This is because the Law Reform (Miscellaneous Provisions) Act 1934, states that all losses end at the date of death.

However, in neonatal death claims, where the mother has also brought a separate claim for her own injuries, she will be entitled to claim for any future losses, the same as in a stillbirth claim. Therefore, where there is an entitlement to claim for future losses, these will be calculated in the same way as any other medical negligence claim.

Calculating future losses is often a much more complex process than calculating past losses, as it requires a detailed understanding of the various medical and legal factors, particularly in cases where the mother has suffered a severe psychiatric injury.

In assessing future losses, there are a number of key considerations including the nature and severity of any injuries, the cost of any ongoing and future care, travel and private treatment costs, any ongoing and future loss of earnings, as well as the wider impact on the whole family. It is also very important to ensure that any final compensation award accounts for inflation and economic changes.

When calculating future losses, such as care costs, specific methods will often be used, which take into account factors such as life expectancy, inflation and economic changes, to assist in accurately determining the appropriate amount of compensation.

Evidence from medical and financial experts may also be obtained to support the amount of future losses being claimed

Compensation available under the Fatal Accidents Act 1976

Statutory Bereavement Award

Where medical negligence has resulted in a neonatal or maternal death, certain relatives may be entitled to claim a single one-off payment known as the ‘statutory bereavement award’.

The amount is set by legislation and can be subject to change; however, it is currently £15,120, which must be split between all eligible relatives.

Neonatal Death Claims: Only the baby’s parents will be entitled to claim the award, providing they were married. However, if they were not married, only the mother is entitled to the award.

Maternal Death Claims: Where the Deceased was over the age of 18, only the following relatives will be entitled to claim: the Deceased’s spouse, civil partner or an unmarried cohabiting partner (providing they have lived together for 2 years prior to the death). If the Deceased was under 18, the eligible relatives will be the same as in a neonatal death claim.

Stillbirth Claims: Where medical negligence has resulted in a stillbirth, there is no legal entitlement for any relative to claim the statutory bereavement award. Though the court is permitted to award damages akin to the bereavement award at their own discretion, and case law will often be used by solicitors to argue for meaningful alternative compensation.

Dependency Claims

In simple terms, a dependency claim can be brought by a limited number of eligible people, if they were “reasonably reliant” on the Deceased for either, financial support or services, immediately prior to their death. It is sufficient that this reliance upon the Deceased was either complete or partial in order to bring a claim.

Under the Fatal Accidents Act 1976, only the following people may be eligible to make a dependency claim.

Current or former spouses or former spouses of the Deceased
Couples who had been living together in the same household for at least 2 years before the Deceased passed away
Any parent of the Deceased, or any person the Deceased treated as a parent (such as a step-parent)
Any child or descendant of the Deceased
Where the Deceased was married or in a civil partnership, any person the Deceased treated as a child or parent in relation to that marriage or civil partnership (such as a step-child)
Siblings, aunts or uncles of the Deceased

There is no limit on the number of eligible people (‘Dependants’) who may bring a claim, however, only one dependency claim can be brought on behalf of all Dependents. Therefore, it is important to ensure that all potential Dependents, who wish to bring a claim, are included from the outset.

Financial v Services Dependency

Financial Dependency: This applies to cases where a person was financially dependent on the Deceased’s income or financial support, and they are now worse off than they would have been, had the Deceased survived. For example, where a mother has passed away leaving a child behind, or where the mother’s partner or spouse was financially reliant on her income.
Services Dependency: This applies to cases where a person was dependent on the Deceased for services, which can no longer be provided. For example, where a father was dependent on the mother for childcare, whilst he was at work, or where an elderly parent was dependent on their daughter for care or assistance with household tasks.

Where an eligible Dependent has suffered a loss of financial support or services, as result of the Deceased’s death, a dependency claim can be made, provided that there is a reasonable expectation that the Dependant would have continued to benefit had the Deceased survived.

Calculating Compensation in Dependency Claims

Dependency claims can be notoriously complex, technical and lengthy to calculate. The amount of compensation awarded will depend on the individual circumstances and must be considered on a case-by-case basis. However, the amount awarded should be proportionate to the particular loss which the Dependent has suffered.

In order to ascertain the full extent of any dependency claim, evidence of a dependency and the extent of the loss suffered is essential. Solicitors will usually gather evidence such as witness statement from all eligible dependents, documents showing the Deceased’s sources of income and regular outgoings such bank statements, pension documents, household bills. Additional disclosure such as medical, HMRC and employment records for the both the Deceased and the Dependent may also be required.

A dependency claim may include a calculation of both past and future losses. Past losses cover the loss of any financial or services dependency, from the date of death to the date of settlement, or trial (whichever is earlier). Whereas future losses cover the loss of any financial or services dependency, which are ongoing or expected in the future.

Therefore, when calculating either type of dependency claim, it is also necessary to consider how long any financial or services dependency would have continued, had the Deceased survived. This involves determining both the period for which the Deceased would have provided the dependency and the period for which the Dependent would have received the dependency.

Independent medical and financial experts will often be used to prepare reports on factors such as the estimated life expectancy, future income or care needs of both the Deceased (had they survived) and the Dependent.

Of course, it is impossible to predict exactly what will happen in the future and therefore, in any type of fatal claim, the calculation of future losses will usually be based on hypothetical scenarios, as to what would have happened, had the Deceased survived.

Calculating Financial Dependency

A dependency claim for loss of financial support will be established by considering the income which the Deceased would have had, if they had survived, and the extent to which the Dependent was reliant on this income and the Deceased’s financial support.

‘Income’ includes various different types such as wages, pensions, employment benefits, savings and shares. Whilst ‘financial support’ covers things such as child maintenance, university or tuition fees, driving lessons, birthday parties, holidays, gifts and weddings.

In order to calculate the value of a financial dependency claim, evidence will be used to estimate what the Deceased would have earned, had they survived and consideration will be given to the Deceased’s future plans, such as promotions, expected retirement age and other changes in their earnings or living circumstances.

However, it is also necessary to take into account the fact that had the Deceased survived, they would have continued to spend some of their income, for example, on themselves. Therefore, a percentage deduction will usually be made in order to reach the final amount to be awarded to the Dependent. The percentage which is deducted can vary depending on factors such as the size of the Deceased’s family, their overall earnings etc.

Calculating Services Dependency

A dependency claim for loss of service can be more difficult to calculate, as services such as childcare, household chores or DIY tasks do not have a specific set value.

Therefore, the loss will be calculated, either by using the actual professional cost for replacing the service e.g. the cost of a professional babysitter or childminder, or if the service continues to be provided by another family member or friend (gratuitously), a percentage discount rate will be applied to the professional cost.

When considering the appropriate ‘professional cost’ and discount rate to use, solicitors will refer to legal guidance and comprehensive tables to assess the appropriate figures and pay scales for the relevant service(s) such as childcare, gardening and housekeeping.

If there is likely to be a services dependency claim, it can be very helpful for families to keep a list of what the Deceased did for their family, and others, as this may prove essential when valuing a dependency claim.

Other Types of Special Damages in Dependency Claims

Funeral Expenses

Where funeral expenses have not been claimed under the Law Reform (Miscellaneous Provisions) Act 1934, they may instead be claimed under the Fatal Accidents Act 1976, providing they were paid for by a Dependent.

Loss of Love and Affection (Intangible Benefits)

In some cases, it is also possible to claim for the loss of the Deceased’s love and affection, which is known as a ‘Regan Award’. Though usually only a child or spouse/partner of the Deceased will be entitled to this.

Whilst this is considered to be a type of ‘special damage’, it is actually an intangible loss i.e. non-financial loss, similar to general damages for PSLA. This means that there is no fixed amount, however, previous case law suggests that awards typically range between £3,000 to £5,000.

Other considerations when calculating compensation in fatal birth injury claims

Personal injury discount rate

For any compensation which is awarded for future losses and is to be paid in the form of a lump sum, a fixed rate percentage figure, known as the ‘discount rate’, will be applied to reach the final amount payable. For example, in a stillbirth claim, the mother may require ongoing/future psychiatric therapy for her psychiatric injury, so the discount rate will be applied to the amount which is awarded to cover any future therapy costs.

The discount rate is periodically reviewed by the government, in order to try and ensure that claimants are neither under nor over compensated. This means that the final compensation amount may either be reduced or increased, depending on the applicable discount rate at the time of settlement. In January 2025, the current discount rate was set at +0.5%, meaning resulting in a slight reduction to the final compensation amount which is awarded to claimants.

Interest on general and special damages

In fatal birth injury claims, interest can usually be claimed on both general and special damages.

On general damages, the interest rate is set by case law which entitles the claimant to a rate of 2% per year from either the date of service of the claim form, or by specific agreement with the defendant, until the date of settlement or trial (whichever is earlier).

Whereas on special damages, the interest rate is set by the Court Funds Office and is subject to change.

Double recovery

Usually, in medical negligence claims, there is a rule against ‘double recovery’ which means a claimant is prevented from receiving compensation more than once, for the same injury.

Under the Law Reform (Miscellaneous Provisions) Act 1934, this means that any benefits which the deceased received, in the period leading up to their death, as a result of the deceased’s injury, will be known as a ‘recoverable benefit’. However, this does not apply to any benefits which are not associated with the deceased’s injury.

The Department for Work and Pensions operates a system for recovering these recoverable benefits from the defendant and therefore, the defendant may be entitled to deduct the same from part of the final compensation award. However, recoverable benefits can only be deducted from certain types of losses e.g. care costs or loss of earnings and providing they were received by the deceased in the five years following the date of their injury.

Whereas for claims under the Fatal Accidents Act 1976 (dependency claims), there is an exception to this rule, as the Act allows for any benefits received, or which may be received, as a result of the death to be disregarded. This means that any ‘benefits’ such as inheritance, life-insurance or pension payments will not be deducted from the final compensation award.

Get In Touch Today

Losing a baby or loved one is a truly heartbreaking experience, and navigating life after a loss can be incredibly difficult for the whole family.

At Fletchers Solicitors, our experienced lawyers specialise in birth injury claims involving both fatal and non-fatal injuries. We’ve supported hundreds of families who have lost a baby or loved one, through complex cases, with empathy, care and compassion.

We are committed not only to achieving justice, but also to helping families who have been affected by a fatal birth injury, to rebuild their lives with confidence and support.

If you think that you may have lost your baby or loved one, due to medical negligence during pregnancy, labour, delivery or shortly after birth, please contact our team who will listen to your experience and give you a free, no obligation case assessment.