The loss or harm of a precious new child is something no parent should have to bear.
To experience this loss or harm caused by a negligent care provider you put your trust in is unimaginable. Tragically, this is a real situation some people find themselves in.
When a much-anticipated birth does not go according to plan and irreversible harm is done, what should grieving parents and families do to get the answers, justice or compensation they might deserve?
This article covers the basics of medical negligence claims for birth injuries. We will look at the different types of injuries and claims, why people might seek legal advice to help them find answers, and how we can connect you to other support options.
Helping grieving families through a birth injury is one of the most challenging parts of our work
Birth is significant in so many ways. It’s the start of a new life. It’s a long-awaited celebration for the new parents, uniting families and friends. And it’s one of the most significant experiences for the human body.
The birth delivery can shape the physical and mental health of the child, the mother and others closely involved.
It’s no wonder parents everywhere seek professional medical care to see them through this milestone event.
Despite a world-class health and hospital system here in Australia, there are times when healthcare professionals fail to provide the required level of care to their patients - with catastrophic outcomes. Tragically, this applies to births.
The saddest part of our work as lawyers is meeting families who are going through the tragedy of a birth injury.
Grieving families just want answers
When we see these families, they’re in the midst of a nightmare. They’re grieving, and typically have not been provided the right answers from their healthcare providers about what has happened, and why.
Their trust is broken. They are distressed, angry, resentful, and they need support.
For many, seeing a lawyer is not about the money. It’s about getting answers and closure.
What do we mean by “birth injuries”?
Every birth is unique; as are the injuries arising from negligent care providers.
We do however see some common injuries as a result of negligent care providers.
A family’s child may have sustained cerebral palsy (CP) due to lack of oxygen during birth, the baby may have been stillborn or died soon after birth from other injuries or complications, or the mother may have sustained unanticipated injuries.
Another injury we see in this category is infant shoulder dystocia, which can cause palsy or paralysis from nerve damage during delivery. Both palsy and paralysis always have significant care, treatment and lifestyle impacts.
There are different categories of CP with the most severe calling for round-the-clock care, diminished life expectancy and significant lifelong-treatment intervention.
Stillbirth and neonatal death
In Australia, tragically around 2000 babies are stillborn every year, and around 780 die as newborns (aged zero to 27 days).
There are a range of factors contributing to stillbirth and neonatal (newborn) death, some of which may constitute medical negligence.
These tragic events can also cause psychological injury to those who witness and endure them - usually close family members.
Injuries to mothers
It’s important to realise serious birth-related injuries can also strike mothers as a result of negligence by care providers, either during pregnancy, at the birth or postpartum.
Some conditions caused by negligence can include pelvic floor injuries like perineal tears, or cesarean-related injuries.
We supported the mother in seeking the answers, justice and compensation she deserved as a result of this tragedy.
What compensation is available for birth injuries?
While seeking compensation in no way makes up for what has happened, it is fair and right for those who’ve been wronged by the negligence of another party to get compensation for their loss and injury.
In Australia, compensation for birth injuries due to medical negligence is handled under civil liability legislation. Every State and Territory has its own framework.
Common to these is the need to prove a healthcare provider has breached their duty of care (negligence), and this negligence caused or materially contributed to the injury.
Let’s look at two main types of claims in more detail: cerebral palsy, and mental harm claims.
Parents can make cerebral palsy claims on behalf of their child. Because cerebral palsy is considered a catastrophic injury, more compensation is generally awarded for factors including:
- Pain and suffering (loss of enjoyment of life)
- Past and future medical expenses
- Past and future professional care costs
- Anticipated loss of future earning
- The commercial value of professional care required in the future.
Calculating claim amounts can be complex - particularly when estimating future care costs.
We don’t have a crystal ball to help us calculate what it “costs” someone to provide lifelong care for someone with cerebral palsy.
That’s why it’s important to utilise experts to build the most complete and detailed estimate possible.
The costs won’t just be limited to the basics of doctors’ fees, nurses, occupational therapists and physiotherapists.
There are countless other everyday costs of living with a disability only someone with an in-depth knowledge of the health system will be aware of.
We’ve found that having a registered nurse in our team helps us with these estimates.
Past and future economic loss, such as reduced earning capacity also needs to be considered.
As does the cost of “gratuitous services” – those services provided by friends and family free of charge to the disabled person.
Cerebral palsy claims are an extremely complex area of the law – so it’s vital you seek support from an experienced medical negligence lawyer to have the best chance of getting the full scope of your entitlements.
Witnessing death when life is expected can cause profound psychological trauma for those directly involved, the effects of which can last for years or decades.
When this tragedy is the result of negligent care, members of the affected family can make a claim for pain and suffering from the psychological injury they have suffered.
There can also be claims for economic loss, such as loss of earnings if the psychological injury prevents grieving family members from working, and claims for counselling costs.
How an experienced medical negligence lawyer can help you get the answers you need
Often, grieving families are unsure if they even have a case for a medical negligence claim.
They might simply feel something was amiss with the care provided, or certain things were not done that should have been.
To help you understand what happened, we’ll take you through the following steps to help you get the answers you need.
Our job as lawyers is to listen to your story, analyse the situation and make a decision as to whether there is a potential case - whether the injury was caused by negligence.
For example, we know cerebral palsy is caused by lack of oxygen, but it’s not always clear whether the lack of oxygen was the result of something the care provider did or didn’t do.
So, we investigate and gather evidence to see if there is a claim. For example, we might look at risk factors around the delivery, such as the baby’s size, the length of the second stage of labour, and whether the mother had pre-existing medical conditions.
We check the clinical record of delivery, antenatal records and progress notes taken immediately before the delivery.
We try to establish whether risk factors were properly managed by hospital staff; that is, whether they were following all required procedures.
If we find evidence to support a claim, we will then lodge court proceedings on your behalf. Many medical negligence cases resolve at a settlement conference without the need to proceed to a trial.
In some cases, the parties are unable to reach a settlement, we can take the case to trial.
Whether we take your case to trial is completely your choice.
We treat our birth-injury clients with the compassion and respect they deserve. We want to empower everyone to get closure, and we’re prepared to go the extra mile to try to give the answers you need and deserve.
For example, we might guide the family through the process of getting information from the hospital, coaching them in the right questions to ask.
We may refer people to the authority dealing with complaints about healthcare providers in their State (eg. theHealth Care Complaints Commission in NSW), which are set up to protect public health and safety.
Another way we support families through birth injuries is through coronial inquests. We don’t recover costs for this.
We are there to represent the family in the Coroner’s Court, and if the family has specific concerns they want investigated, we’ll convey these to the Coroner.
If we have gathered any evidence suggesting the injury may have been the result of a systemic failure, we refer it to the Coroner.
What to do if you suspect medical negligence caused a birth injury
It’s always a good first step to talk to your healthcare provider first, to understand what happened.
But if you don’t feel satisfied with their response, contact us to get some advice - your first appointment is free*.
If you have a question, want some more information or would just like to speak to someone, make an enquiry to online or phone us 1800 555 777 and our Medical Law team will be in touch with you as soon as possible.
We’re also very proud to provide our clients with access to leading, affordable legal services, including our “No Win, No Fee”** offer, as well as free social work services, upon referral from a lawyer, where required.
*Free initial appointment, conditions apply. View here.
**No Win, No Fee, conditions apply. View here.