Posted on 18 Feb 2019
Seeking Justice for medically negligent birth injuries
Senior Legal Counsel, Medical Law
The loss or harm of a newborn is a devastating experience for any parent, especially when it’s a result of medical negligence. When a birth doesn’t go as planned and irreversible harm occurs, it’s crucial for families to understand their options for seeking answers, justice, and compensation.
This article explores the basics of medical negligence claims related to birth injuries and traumatic births, including types of injuries and claims, and how seeking legal advice can help families navigate this difficult time
What is a birth injury?
Every birth is unique, and unfortunately, so are the injuries that can arise from negligent care.
Common birth injuries resulting from negligence include conditions like cerebral palsy , which can occur due to oxygen deprivation during birth. In the most extreme of cases, it may result in the tragic loss of life.
Another concern in this area is infant shoulder dystocia, which can lead to nerve damage, causing conditions such as palsy or paralysis. These conditions can have profound effects on a child’s care needs, treatment, and overall quality of life.
Additionally, mothers can also experience unforeseen injuries during childbirth as noted through the recent rise of traumatic births.
What is a traumatic birth?
Birth trauma refers to a mother’s negative physical, psychological, or emotional experience during childbirth. This can encompass a complex range of conditions and complications for both the mother and the newborn.
According to the World Health Organisation (WHO), one in three Australian women are impacted by birth trauma.
Traumatic birth injuries to mothers include:
Nerve damage
Perineal damage
Muscle damage
Pelvic organ prolapse
Caesarean-related complications
Vaginal tears
Emotional or psychological trauma (e.g., PTSD)
Traumatic birth injuries to newborns include:
Bruising or swelling of the scalp
Fractures and tears
Bone damage
Nerve damage
Brain trauma or bleeds
Long-term developmental conditions, such as cerebral palsy
How common are birth injuries?
In Australia, birth injuries are more common than you might expect, leading to significant emotional and psychological distress for affected families.
Stillbirth affects over 2,200 babies annually, with more than 700 of these resulting in neonatal deaths. Cerebral palsy, often caused by oxygen deprivation during birth, impacts around one in 700 children each year, with cases ranging from mild to severe and often requiring extensive care.
In some instances, these tragedies may be linked to medical negligence. For example, in 2023, dozens of women lodged complaints against Wagga Wagga Base Hospital with the NSW HealthCare Complaints Commission (HCCC), citing inappropriate use of induction of labour, poor bed management, lack of care and respect, human rights abuse, and clinical incompetence.
Compensation for birth injuries
While compensation can’t undo the impact of birth injuries, it provides support for those affected by medical negligence.
In Australia, claims for birth injuries are handled under civil liability laws, which vary by State and Territory. To succeed in a claim, you must prove that a healthcare provider breached their duty of care and that this breach caused or significantly contributed to the birth injury or defect.
Cerebral palsy and neonatal deaths are two of the most common birth related injuries, and each provide their own compensation.
Cerebral palsy is a catastrophic injury resulting from negligence and typically leads to substantial compensation for pain and suffering, medical expenses, and future care costs.
Calculating these claims is complex, involving detailed estimates of lifelong care, economic loss, and ongoing services provided by family and friends.
Expert legal assistance is important to ensure a comprehensive evaluation of all associated costs, helping to address all of your child’s needs.
Families affected by stillbirth or a neonatal death due to negligence may claim compensation for psychological trauma, including pain and suffering, lost earnings, and counselling costs.
These claims address the deep emotional impact of such tragedies and the disruption they cause to grieving family members.
How do we prove medical negligence?
We’ll listen carefully to your story, assess the details, and determine if there’s a potential case of medical negligence.
To establish a potential claim, we thoroughly investigate the circumstances, this includes examining risk factors like the baby’s size, the duration of labour and any pre-existing medical conditions. We will also review clinical records, antenatal (or prenatal) notes, and delivery progress reports to assess whether hospital staff managed risk factors appropriately and adhered to required procedures.
If we find evidence supporting a claim, we’ll initiate court proceedings on your behalf. Many medical negligence cases are resolved at a settlement conference, avoiding the need for a trial.
However, if a settlement can’t be reached, we’re prepared to take the case to trial, though the decision to proceed is entirely up to you.
It’s important to remember that healthcare providers are legally required to be insured for their entire scope of practice, either through their employer or personal indemnity insurance. Therefore, if your claim is successful, any financial compensation will likely come from the provider’s insurance, not directly from the healthcare professional.
What to do if you suspect medical negligence caused a birth injury
Start by discussing your concerns with your healthcare provider to understand what happened. If you’re not satisfied with their explanation, reach out to us for a obligation free initial consultation.
Use our free online claim check tool to check if you have a claim.
For questions or more information, you can make an enquiry online or call us at 1800 444 141 and our experienced Medical Negligence team will be in touch.
We’re committed to offering quality and affordable legal services, including our No Win, No Fee* arrangement. This means if you don’t win, you don’t pay for our professional fees for work on your case. You may still be liable to pay third party costs and disbursements. We also provide access to free social work services to help you through this difficult time.
Addressing birth injuries caused by medical negligence is crucial, and understanding your rights and options is the first step. Whether you're seeking compensation for a cerebral palsy claim or dealing with the emotional impact of stillbirth or neonatal death, we're here to guide you through the process.
We offer a No Win, No Fee* arrangement. This means that if you don’t win, you don’t pay the fees for the work we do on your case!
The contents of this blog post are considered accurate as at the date of publication. However the applicable laws may be subject to change, thereby affecting the accuracy of the article. The information contained in this blog post is of a general nature only and is not specific to anyone’s personal circumstances. Please seek legal advice before acting on any of the information contained in this post.
