Birth Injury Claims - Medical Negligence

We are fortunate in Australia that injuries sustained from trauma at birth are uncommon in Australian hospitals. Sadly however, on occasions, a child is born with serious medical complications as a result of the level of care provided by doctors or hospital staff during labour, delivery or immediately following birth. 

Sometimes the outcome is catastrophic for the mother and baby resulting in permanent injury and medical conditions such as cerebral palsy.

Where complications do arise, they can impact a child and their parents for life. The financial and emotional burden on families can be devastating.

If complications during the birthing process have been caused by the negligence of doctors or hospital staff involved in medical care provided, a child and parents may be entitled to be compensated for the damage caused.

There is a well established duty of care which exists between a doctor and their patient and if there is a breach of that duty of care and damage has resulted from that breach, compensation is payable to the injured patient.

If the birth injury has been wholly or partially caused by the negligence of the doctors or hospital staff then the types of compensation payable could include, but not limited to, pain and suffering, past and future care including any need for specialized equipment or transport, past and future medical treatment and past and future loss of earning capacity.

Understandably many parents caring for a child with significant cognitive and physical impairments do not have the time or energy to investigate a claim arising from the birthing process. Andersons Solicitors can assist with the information gathering and early preservation of evidence with the claim itself often not finalising until the child is a teenager when the losses can be properly assessed.

What are some birth injuries that are commonly associated with medical negligence claims?

There are a wide variety of birth injuries that can be caused by medical negligence. Some of the injuries can be identified and treated quickly however, other birth injuries can take many years to identify and can require life long care.

Birth injuries can include brain related injuries such as cerebral palsy, hypoxic-ischaemic encephalopathy (HIE) and brain haemorrhage.

Physical injuries to the baby can include lacerations, bruises and broken bones, skull fractures, brachial plexus injury, Erb’s palsy and shoulder dystocia.

Physical injuries to the mother can include vaginal and perineum tears, pelvic organ prolapse, and post-partum haemorrhage.

In some circumstances the parents can suffer psychiatric injury as a result of the trauma of the birth and may be entitled to pursue a nervous shock claim.

What types of situations can give rise to a medical negligence claim?

  • Failure to monitor the baby or mother properly during labour.
  • Failure to recognise an emergency.
  • Failure to respond to an emergency properly.
  • Use of excessive force during the delivery.
  • Failure to use proper skill, care or attention to perform any procedure during labour or delivery, including epidural anaesthetic and instrumental delivery.

Time Limits

It is important to be aware of the relevant time limits that apply when making a medical negligence claim in South Australia. Generally it is a good idea to seek advice as soon as possible to protect your legal rights and preserve evidence.

In South Australia, there is generally a strict time limit for making an injury claim of three years from the date of the injury. With respect to birth injury claims, a baby that is born with an injury or illness as a result of negligence will have until their 21st birthday to lodge a claim and often longer if they suffer from a mental incapacity and require a litigation guardian to act on their behalf. However, it is expected that the respondent to the claim will be put on notice of the claim within 6 years of the injury date.

Birth injury claims are a particularly complex form of medical negligence claim, and for that reason, engaging a specialised birth injury lawyer early is important to maximise the chances of success with early investigation of a claim.

Where do I start?

For parents in these situations, this can be a very overwhelming and challenging experience in which you have a lot of questions. For this reason, we recommend booking a first free interview with one of our medical negligence specialists. During this appointment, we can offer guidance with respect to the merits of your claim, how much compensation you may be entitled to, the length of time it will take to resolve your claim, and its complexity.

What costs should I expect?

In the majority of cases our medical negligence team will offer to represent you on a no win no fee basis meaning that no legal fees are payable by you in circumstances where your claim is unsuccessful.

In most cases you will be responsible for payment of any out of pocket expenses such as fees for medical records and expert reports. However, there are ways to obtain funding for these expenses, such as through the Litigation Assistance Fund, which our medical negligence team can advise you on.

For any assistance or advice about claims for medical negligence relating to the birth of a child or to speak with a specialist medical negligence lawyer, please contact Partner, Suzanne Pinyon.

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