Written by: Ray Abbas
When you trust medical professionals with the most important moment of your life—bringing your child into the world—you expect safe, competent care. Unfortunately, medical errors, poor judgment, or inadequate care can lead to devastating birth injuries that affect both mother and child for years to come.
If you or your baby suffered preventable injuries, you may be entitled to birth trauma compensation. These claims can arise when a hospital or healthcare provider fails in their duty of care during pregnancy, labour, delivery, or aftercare, and that failure results in harm.
Knowing your legal rights is the first step. By understanding what medical negligence looks like and what options are available to you, you can take informed action and pursue the compensation your family may need for recovery, support, and long-term wellbeing.
What is birth medical negligence?
You can sue a hospital for a traumatic birth if the care you or your baby received was negligent and caused preventable harm.
Birth medical negligence happens when a doctor, nurse, midwife, or hospital fails to provide the level of care expected during pregnancy, labour, or delivery, and that failure leads to injury.
All medical professionals have a legal duty of care, meaning they are responsible for providing safe, competent, and timely treatment. When that duty is breached—through mistakes, poor decisions, or inaction—and an injury occurs as a result, it may be considered medical negligence.
Situations that may give rise to a birth negligence claim include:
- Failing to monitor signs of foetal distress
- Delayed response to complications during labour
- Misuse of delivery tools such as forceps or vacuum extractors
- Inadequate pain relief or anaesthesia causing additional harm
- Not performing a C-section when medically necessary
- Poorly managing high-risk pregnancies
- Communication failures between members of the medical team.
Not every birth injury is caused by negligence. Some complications happen even with good care. But if your injury was caused by substandard medical treatment, you may have grounds to sue the hospital or provider.
Common types of traumatic birth injuries
If you or your baby experienced serious complications during childbirth, you may be wondering whether it was just an unfortunate outcome or the result of medical negligence.
Understanding the types of injuries that can happen during a traumatic birth can help you determine whether you might be eligible for birth trauma compensation. These injuries can affect both mother and baby, and may range from short-term complications to life-altering conditions.
Birth injuries to mothers
Mothers can experience serious injuries during childbirth, especially if the delivery is poorly managed. Below are some of the most common maternal injuries that may be linked to substandard care.
| Type of injury | How it happens and potential consequences |
|---|---|
| Perineal tears | Severe perineal tears between the vagina and anus can occur during delivery. While minor tears are common, extensive tears requiring surgical intervention may result from improper delivery techniques, failure to perform episiotomies when necessary, or rushed deliveries without adequate preparation. |
| Haemorrhages | Postpartum haemorrhages can be life-threatening when medical staff fail to control bleeding properly. This often occurs due to improper application of pressure, delayed recognition of bleeding complications, or inadequate monitoring during the critical postpartum period. |
| Uterine rupture | This rare but serious condition involves tearing of the uterine wall during labour. Uterine rupture typically requires emergency surgical intervention and can result from excessive use of labour-inducing medications, failure to monitor contractions properly, or attempting vaginal delivery after previous cesarean sections without adequate precautions. |
| Infections | Post-delivery infections may arise from unsanitary conditions, improper medical practices, or failure to manage pre-existing conditions appropriately. These infections can range from treatable to severe complications affecting long-term health. |
| Pelvic organ prolapse | When muscles and ligaments supporting pelvic organs weaken due to traumatic delivery, mothers may experience ongoing discomfort, urinary incontinence, and other complications requiring extensive treatment. |
Birth injuries to babies
Certain birth injuries can have lasting effects on a baby’s health, especially when caused by poor monitoring, delayed decisions, or misuse of delivery tools. Below are common examples that may point to avoidable harm.
| Type of injury | How it happens and potential consequences |
|---|---|
| Brachial plexus injury at birth | Brachial plexus injuries affect the network of nerves sending signals from the spine to the arm and hand. These injuries commonly occur during difficult deliveries, particularly breech presentations or prolonged labour, when excessive force is applied during delivery. Severe cases can result in permanent paralysis or limited arm function. |
| Hypoxic brain injury at birth | Hypoxic-ischemic encephalopathy (HIE) occurs when babies don’t receive adequate oxygen before, during, or immediately after birth. This condition can lead to significant neurological damage, developmental delays, and cerebral palsy caused by medical negligence. HIE-related birth injuries are often the result of delayed recognition of foetal distress, prolonged labour without timely intervention, or umbilical cord complications. |
| Spinal cord injury at birth | Spinal cord injuries during delivery are rare but catastrophic, potentially causing paralysis, breathing difficulties, and other severe complications. These injuries typically result from excessive pulling or twisting during difficult deliveries. |
| Shoulder dystocia birth injury | Shoulder dystocia occurs when the baby’s shoulder becomes stuck behind the mother’s pelvic bone during delivery. Improper management of this emergency can lead to brachial plexus injuries, fractures, or oxygen deprivation, causing brain damage. |
| Vacuum birth injury | Vacuum extractors, when used improperly or unnecessarily, can cause skull fractures, brain bleeding, or scalp injuries. These injuries often result from excessive force, improper placement, or using vacuum extraction when cesarean delivery would be safer. |
| Scalp injuries | Scalp injuries, such as Cephalohematoma and Caput Succedaneum, are often related to prolonged labour or tool-assisted delivery. While many cases heal on their own, severe swelling or bleeding may require treatment. |
| Fractures | Bone fractures, particularly of the clavicle or collarbone, can occur during difficult deliveries or through improper use of birth-assisting tools. Most fractures heal well, but they indicate potentially traumatic delivery management. |
Can I sue a hospital for birth negligence?
Yes, if a hospital’s staff or systems caused or contributed to preventable birth injuries, you may be able to sue the hospital for birth negligence.
Hospitals are legally responsible for the safety of their patients. This includes providing competent staff, maintaining proper procedures, and responding quickly to complications. If something goes wrong because these responsibilities weren’t met, the hospital—not just the individual doctor or midwife—can be held liable.
There are three main ways hospitals can be held responsible:
| 1. Vicarious liability | Hospitals are usually responsible for the actions of their employees, including midwives, nurses, and doctors. If a staff member made a mistake during labour or delivery, the hospital can be held accountable. |
| 2. Direct liability | Hospitals must also ensure that the systems and environment are safe. That includes:
|
| 3. Systemic issues | Sometimes it’s not one person’s mistake, it’s the result of broader problems, like:
|
To sue a hospital for birth negligence, you must show:
- The hospital owed you and your baby a duty of care
- That duty was breached
- The breach directly caused injury or harm
- You suffered losses or damages as a result.
Real-world examples: When you might have a claim
To help you understand how hospital negligence might apply to your experience, here are a few birth injury scenarios that could support a claim:
1. Scenario one: Delayed C-section
You were in labour for several hours, and signs of foetal distress were clear on the monitor, but the staff waited too long to perform a C-section. As a result, your baby suffered oxygen deprivation and was later diagnosed with hypoxic brain injury (HIE).
Possible claim: Failure to act on signs of foetal distress, leading to avoidable injury.
2. Scenario two: Improper use of forceps
A doctor used forceps during a complicated delivery but applied them incorrectly, fracturing your baby’s skull and causing bleeding on the brain. You were never told about the risks, and a C-section would have been safer.
Possible claim: Misuse of instruments and failure to obtain informed consent.
3. Scenario three: Postpartum haemorrhage not managed
After giving birth, you began bleeding heavily. The hospital failed to monitor your condition properly, and treatment was delayed. You later required a transfusion and suffered long-term health complications.
Possible claim: Failure to manage a known postpartum risk, resulting in harm.
4. Scenario four: Understaffing in the labour ward
During your delivery, the unit was short-staffed. Delays in care led to a missed diagnosis of shoulder dystocia. Your baby now has a brachial plexus injury and limited arm function.
Possible claim: Systemic failure due to understaffing, resulting in delayed or inadequate intervention.
If any of these situations feel familiar, it may be worth speaking with a birth injury lawyer to understand your legal options. A lawyer can review your records and help you determine whether the care you received fell below an acceptable standard and whether the hospital can be held accountable.
Get a free claim check
Who can sue for birth trauma compensation?
In Australia, it’s not just the mother who may be entitled to claim birth trauma compensation. Depending on the circumstances, several parties may have legal standing to sue when a traumatic birth causes harm.
Those who may be eligible to claim include:
- The mother, for physical injuries (such as perineal tears or infections) or psychological harm (such as PTSD or depression) caused by negligent care during pregnancy, labour, or delivery.
- The child (through a litigation guardian, usually a parent) can claim compensation for birth injuries like cerebral palsy, hypoxic brain injury, or brachial plexus damage that resulted from medical negligence.
- Close family members, including fathers or partners, may also be able to claim if they’ve experienced psychological harm (such as nervous shock) from witnessing a traumatic birth or its aftermath.
What birth injury compensation can you claim?
If you or your child has been harmed due to medical negligence during childbirth, you may be entitled to birth injury compensation. This compensation is designed to cover both financial and emotional losses, not just the cost of medical care, but the wider impact on your family’s life now and into the future.
Understanding the full range of what you can claim helps ensure you aren’t left covering expenses or consequences that weren’t your fault.
Financial (economic) damages
These damages reflect the wide-ranging impact on a family’s financial wellbeing, covering not only immediate and ongoing medical costs but also lost income, future earning potential, and the need for caregiving and support services.
| Type | Possible inclusions |
|---|---|
| 1. Medical expenses |
|
| 2. Lost income |
|
| 3. Care costs |
|
Non-financial (non-economic) damages
These damages address the emotional, psychological, and overall quality-of-life impacts that cannot be measured in purely financial terms. They recognise the profound personal toll on individuals and families, including pain and suffering, emotional distress, and long-term disruptions to daily life and relationships.
| Type | Possible inclusions |
|---|---|
| 1. Pain and suffering |
|
| 2. Quality of life impact |
|
Compensation calculations consider both immediate and lifelong impacts of birth injuries. Severe cases involving permanent disabilities may result in multi-million dollar settlements to ensure adequate care throughout the injured person’s lifetime.
Birth trauma compensation: What factors influence the payout?
When it comes to birth trauma compensation, the settlement amount awarded can vary significantly from case to case. This is because each case is evaluated based on specific factors that directly affect the severity of the injury, the long-term impact on the child and family, and the degree of medical negligence involved.
Below are two real-life case summaries that demonstrate how these factors play a role in determining compensation amounts.
Case 1: $9,000,000 settlement for negligence resulting in Quadriplegic Dystonic cerebral palsy
| Key factor affecting compensation | Details |
|---|---|
| Severity and type of injury | The child suffered Quadriplegic Dystonic Cerebral Palsy, one of the most severe forms, causing full-body impairment and lifelong dependence. |
| Extent of medical negligence | Despite two clear signs of foetal distress (bradycardia), no timely caesarean section was performed, and a vaginal birth was inappropriately continued. |
| Level of ongoing care needed | The child required around-the-clock assistance, assistive equipment, therapeutic services, and home modifications, significantly increasing future care costs. |
| Impact on development and independence | The child was unable to reach developmental milestones and would never live independently, supporting a higher claim for future economic loss and non-economic damages. |
Our cerebral palsy lawyers fought for a $9 million settlement, justified by the combination of catastrophic injury, clear medical negligence, and substantial future care needs.
Case 2: $3,750,000 settlement for birth injury causing intellectual and cognitive disabilities
| Key factor affecting compensation | Details |
|---|---|
| Injury type and scope | The child was diagnosed with Ataxic Cerebral Palsy and Hypoxic Ischaemic Encephalopathy, resulting in permanent intellectual and cognitive impairment. |
| Medical oversight | Induction was performed by a junior doctor on a weekend without senior supervision, despite known risks of shoulder dystocia and a history of large babies. Resuscitation efforts were delayed. |
| Evidence of preventability | Expert witnesses confirmed that key decisions—like timing of induction and the handling of shoulder dystocia—deviated from standard medical practice. |
| Long-term needs | The child required continuous care and had lifelong impairments, but with less physical disability compared to the first case, which contributed to the lower compensation amount. |
Though the injuries were life-changing and permanent, the level of disability and lifelong care requirements were slightly less extensive. This led to a $3.75 million settlement.
Find out how much you can claim today
How long do you have to file a birth trauma compensation claim?
In Australia, there are strict time limits for bringing a birth trauma compensation claim. Missing a deadline could mean losing your right to claim, so it’s important to understand how these rules work.
The standard limitation period in most states is three years from the date you knew or reasonably should have known that:
- An injury occurred
- It may have been caused by medical negligence.
This is called the date of knowledge, which may be later than the actual date of birth, particularly in cases where the full effects of the injury only emerge over time.
Exceptions and special circumstances
Certain situations may extend or alter the usual time limits:
| Situation | How it affects the time limit |
|---|---|
| 1. Delayed discovery | If the injury or its connection to negligence isn’t discovered immediately, the 3-year period starts from the date you became aware, not the birth date. |
| 2. Children’s claims | For injuries to a baby, most states allow claims to be brought until the child turns 21 (or 18 plus 3 years). This gives families more time to assess the impact of the injury. |
| 3. Mental incapacity | If the injured party (mother or child) lacks legal capacity to make decisions due to disability, injury, or mental health reasons, time limits may be paused until capacity is regained. |
| 4. Exceptional circumstances | Courts can sometimes extend deadlines if there’s a compelling reason for delay, but these are granted rarely and depend on the strength of the case. |
Why acting early matters
Even if your case technically falls within the legal timeframe, delays can hurt your claim.
Over time:
- Medical records may be lost or destroyed.
- Witnesses may move on or forget key details.
- Proving a clear link between the injury and negligence becomes harder.
Starting early gives your legal team the best chance to build a strong case and secure the full compensation your family deserves.
If you think birth negligence may have caused harm—even if it happened years ago—it’s worth getting legal advice. A birth injury lawyer can assess your specific circumstances, explain your options, and help you act within the correct time limits.
Will you need to go to court for birth injury malpractice claims?
Most birth injury malpractice claims are resolved without going to court. In fact, over 90% of medical negligence cases settle through negotiation or mediation before ever reaching a trial.
How mediation works
Mediation is a structured conversation where both sides meet with a neutral third-party mediator. The goal is to find a fair agreement without the stress, time, or cost of court. Your lawyer will represent your interests throughout, helping negotiate the best possible outcome.
Cases often settle at this stage because:
- Hospitals and insurers prefer to avoid expensive and public trials
- Settlement amounts usually reflect what parties expect a court would award
- Both sides want a quicker, less stressful resolution
Benefits of mediation include:
- Faster resolution (often months instead of years)
- Lower legal costs than full litigation
- Private discussions that protect your family’s privacy
- More control over how and when the case ends
- Reduced emotional toll compared to courtroom battles
- Possibility to maintain a respectful relationship with medical providers
When does litigation become necessary?
Sometimes, mediation doesn’t work, especially if:
- The hospital or doctors deny responsibility
- The compensation offered is too low or unfair
- There are complex legal or medical issues that require a formal hearing
If this happens, your case may proceed to litigation. This involves:
- Filing formal court documents and receiving responses
- Gathering evidence through a process called discovery, including expert medical opinions
- Pre-trial hearings to sort procedural issues
- The trial itself, where witnesses give testimony before a judge
- A final court decision, with the possibility of appeals
Litigation takes longer and costs more, but may be necessary to achieve fair compensation if the other side won’t negotiate in good faith.
Finding the right birth injury lawyer
The right lawyer can make a huge difference in the success of your claim. Birth injury cases are complex and require both legal expertise and medical understanding.
Look for medical negligence lawyers who have:
- Extensive experience with birth trauma and medical negligence claims
- A proven track record of successful settlements and court wins
- Access to trusted medical experts in obstetrics and paediatrics
- The resources to manage long-term, complex claims
- A clear understanding of both immediate injuries and ongoing care needs
Before hiring, consider asking:
- How many birth injury cases have you handled?
- What outcomes have you achieved in similar cases?
- Who will handle my case day-to-day?
- How often and by what method will you communicate with me?
Be cautious of lawyers who:
- Promise guaranteed outcomes or quick settlements
- Push you to settle without a thorough investigation
- Lack of medical malpractice experience
- Are slow to respond or don’t explain things clearly
- Have unclear or hidden fees
At GMP Law, we offer free initial consultations with our birth injury lawyers, allowing you to explore your options without financial commitment.
