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While significant technological and procedural advancements have increased the safety of giving birth, sometimes the unexpected occurs. Birth traumas can happen to mothers or newborns, and may result in long-term consequences for both the affected person and their family.
If you or your baby has sustained a birth trauma injury as a result of a medical practitioner’s negligence, you may be entitled to compensation. In this article, we’ll define negligence and personal injury claims, go over the eligibility criteria, offer insights into how much compensation you may be owed and let you know the next steps to take.
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All medical professionals owe their patients a ‘duty of care.’ This means that they have the legal responsibility to ensure that their actions don’t cause harm to their patients — demanding competent, prudent care. Negligence is legally defined as a failure to take reasonable care to avoid causing injury or loss to another person; or, as a breach to the duty of care.
In the context of birth traumas, while many injuries may just simply be unpreventable regardless of the level of care provided, others may arise due to negligent actions (or inactions) of the healthcare professionals involved.
With this in mind, the foundation for a birth trauma compensation claim is predicated upon establishing the following:
A birth injury may refer to an injury that took place before, during or after giving birth. As long as a medical service is being provided, the duty of care is present, and a breach of this duty may entitle you to compensation. Notably, birth injury compensation claims fall under the umbrella of personal injury claims. GMP Law is home to Australia’s leading personal injury specialists with a 98% success rate. We offer a free, non-obligation consultation where you can discuss your situation with one of our personal injury claims’ solicitors, and they’ll let you know the best legal pathways for ensuring you receive the compensation you’re entitled to.
There’s no definitive list of birth injuries that warrant a birth trauma compensation claim. While some injuries are more common than others, an injury or illness of any form that arose at the hands of medical negligence may potentially be grounds for a claim. Nonetheless, here is a list of common birth trauma injuries to both the mother and the newborn baby.
A mother’s physical injuries that are common grounds for birth trauma claims, provided that they arose from a practitioner’s negligence, include:
A baby’s physical, negligence-induced injuries that are common grounds for birth trauma claims include:
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The types of compensation you can claim in a birth trauma case can be thought of in two categories: financial and nonfinancial.
Financial: Also referred to as economic damages, financial compensation covers tangible monetary losses. This includes medical expenses (both past and future), lost income if the birth trauma affects the parent’s ability to work, and any specific therapies or equipment needed for the child’s ongoing care.
Non-Financial: Also known as non-economic damages, this category covers intangible losses. It includes pain and suffering, emotional distress, loss of enjoyment of life, and in some cases, punitive damages, which are intended to punish particularly egregious, extreme conduct. Non-financial damages generally need to be diagnosed by a mental health professional or substantiated through personal testimonies and expert opinions. This category recognises the profound impact that birth trauma can have on the emotional and psychological well-being of both the child and the parents/wider family.
Notably, the method of compensation payout (i.e, lump sum or installments) and the amount of compensation vary depending on the specifics of the case and the state it occurred within. While Australian states share many similarities in the way that birth trauma is compensated, there are distinct differences in the ways and methods that compensation is calculated and distributed. It’s for this reason that it’s important to have competent legal professionals by your side to help you navigate the complexities and nuances of the claim’s process, and to ensure you receive fair and adequate compensation.
If you’re considering filing a birth trauma compensation claim, you likely have questions that you would like answered before proceeding. It’s for this reason that we offer a free, no-obligation consultation with one of our specialised medical negligence lawyers, serving as a first step.
During your consultation, we will work to understand the specifics and context of your case, and provide you with more personalised advice and guidance on the potential outcomes of your claim.
Once you’ve had a chance to have your questions answered and are made aware of your legal options, you can then make an informed decision about whether to proceed with your birth trauma compensation claim. If you decide to move forward with your case, your claim may be settled either within mediation or through the litigation process.
Mediation: As a means of private settlement, mediation is the process whereby both parties — the claimant and the defendant — come together to discuss the dispute with the assistance of a neutral mediator. This mediator helps facilitate a resolution, aiming for a mutually acceptable agreement. Your lawyer will advocate for you, ensuring that your rights are upheld and that a just outcome is achieved. Notably, most cases are settled privately, offering a less adversarial and more time- and cost-effective route compared to litigation.
Litigation: If parties aren’t able to reach an acceptable settlement in mediation, the case may proceed to litigation. This involves taking your claim to court, where a judge — and possibly a jury — will hear the case from both sides. Litigation can be a lengthier and more complex process, potentially taking years to resolve. Naturally, the time and money spent on litigation can add an extra layer of distress; to help our clients, we offer our no-win, no-fee policy. Through this policy, we take on all the costs of your case and only get paid once your case is successful and settled, alleviating you from personal financial liability.
A person born with Quadriplegic Dystonic Cerebral Palsy due to complications during delivery was represented by GMP Law’s medical negligence team. The condition resulted from a series of medical missteps: the client’s mother suffered an anaphylactic reaction to penicillin, leading to hypotension, and during labour, there were two significant bradycardia events (oxygen deprivation to the foetus) with no attempt at a caesarean section. Our client suffered hypoxic ischaemic damage at birth, which was followed by myoclonic seizures and a transfer to the NICU.
As a result, our client missed developmental milestones and required constant assistance and special equipment for daily activities. After a thorough review of medical records and consultation with specialists, the case was settled in June 2019 following mediation, resulting in the plaintiff receiving $9,000,000 in compensation.
While there are state differences, the general time limit (known as limitation periods) for filing a birth trauma claim is three years. However, there are situations where this isn’t possible, whether that’s because the entirety of the injury only manifested after the three-year mark, or due to exceptional circumstances that delayed the discovery of the birth trauma’s cause.
If you believe you may be eligible for a birth trauma compensation claim, be sure to speak with a medical negligence lawyer as soon as you can.
If your case is unable to be resolved in a private settlement, your case may need to proceed to court — yet, this depends on the specific, situational nature of your case. Notably, the majority of cases are settled privately and don’t require the intervention of the court system.
Depending on the specifics of your case, you can claim for financial and nonfinancial losses — also referred to as economic and noneconomic damages.
Financial losses refer to tangible monetary damages that are directly tied to the birth trauma, including:
Nonfinancial losses refer to pain and suffering — the psychological harm that arises as a result of the birth trauma, including:
Your personal injury lawyer will examine the specifics of your situation and advise you on what your compensation entitlements are.
To start the claim’s process or simply to enquire, book a free, non-obligation consultation with one of GMP Law’s medical negligence solicitors. By having GMP Law at your side, you gain specialised birth trauma compensation experts who work to ensure you receive the compensation you’re rightfully entitled to.
Click here to book your consultation, or call us on 1800 004 878.
Case Overview Our client suffered unimaginable loss following her 12-hour labour, delivering her first child by emergence caesarean. A few hours after our clients baby
Case Overview Our client was born with Quadriplegic Dystonic Cerebral Palsy, which was caused by complications during delivery. During labour, our client’s mother was administered
Case Overview Our client, despite informing staff she felt dizzy after undergoing radiological investigations were carried out, was left on her own in a small
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