Mother continues son’s medical negligence claim after he dies

Date: Jul 02, 2015

The mother of a man who launched a medical negligence claim has decided to continue pursuing his case despite his death.

In September 1984, the woman’s son was born with cerebral palsy following an allegedly botched delivery in which he suffered an antepartum hypoxic insult because of pre-eclampsia.

The son originally filed the medical negligence claim in 2011, but died later that year. His mother has commenced the original proceedings and launched separate claims for damages under the Compensation to Relatives Act 1897 and for shock over her son’s death.

According to the plaintiff, the defendant – the Illawarra Shoalhaven Local Health District – breached its duty of care on various occasions.

Firstly, the hospital failed to perform a caesarean section over a three-day period, despite abnormal CTG scans. She also claimed medical practitioners encouraged her to eat dinner on the third day even though a C-section was urgently required by this time.

The defendant admitted it had not offered a C-section, but denied the rest of the allegations. NSW Supreme Court documents show the health authority only provided one expert witness, who had not received the necessary hospital or clinical notes, to contest the allegations.

As such, the witness was unable to directly challenge the plaintiff’s claims. Moreover, the plaintiff’s counsel later used some of the information the defendant provided to bolster their own case.

Plaintiff requests immediate decision

The woman’s medical negligence lawyers felt her claim was so strong they requested an immediate judgement in the plaintiff’s favour. This was based on the fact the defendant had admitted not providing a C-section and an indication they would not offer any more expert witnesses to challenge the allegations.

Nevertheless, the judge said the case should be heard properly in court. Justice Ian Harrison argued that while the woman’s case appeared solid, the evidence was still complex and would require a thorough exploration.

“I have been provided with an extremely large amount of material said by the plaintiff to be relevant to my present determination,” he explained. “Without in terms descending into the detail of that material, it seems to me to be evidence that is, and which ought to be, left for consideration to the trial judge.”

However, Justice Harrison acknowledged it is possible the health authority may admit liability before the case commences further. Until then, the medical negligence claim will continue and the plaintiff will pay the costs of bringing the motion.

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