Traumatic births frequently lead women to consider whether there are any legal avenues for redress, particularly where the mother and/ or the baby are left with challenging injuries. Mothers are motivated by a number of factors, some of these are:
- The need to ensure their voice is heard;
- The need to prevent other women from experiencing the trauma they suffered;
- The need to protect other infants from traumatic births;
- Concerns about the skill levels of particular practitioners;
- Concerns about safety standards in a particular hospital;
- Concerns about future pregnancies;
- The management of difficult maternal physical injuries;
- The management of difficult maternal psychiatric injuries;
- Coming to terms with the loss of a baby; and
- The management of difficult infant physical injuries.
There are different ways that a family may seek redress following a traumatic birth and the family are not limited to one option.
Complaint to the Hospital
Many families complain to the hospital following a traumatic birth. The hospital will usually arrange a meeting between the family and a senior practitioner from the hospital. This process can be useful and will help the family to understand what went wrong. The hospital can be alerted to any complaints about conduct or safety standards so that these can be dealt with. The hospital may choose to apologise to the family. Where the mother and / or the baby have not suffered injuries as a result of the traumatic birth this process can be useful and provide closure.
Complaint to the Health Care Complaints Commission (HCCC)
The HCCC is the body which deals with complaints about particular practitioners. The HCCC will review the complaint and allocate it to the particular professional board of the practitioner about whom the complaint is being made. For example, a complaint about a midwife in NSW would be referred to the Nursing and Midwifery Council NSW.
The focus of HCCC and the various practitioner councils are to protect from the public from problematic practitioners. The powers are wide ranging and can include striking a practitioner off, limiting their practice or reprimanding them. A complaint to the HCCC will not result in damages.
Bringing negligence proceedings against the practitioner and or the hospital
The rules surrounding instituting negligence proceedings differ on a state by state basis and it is necessary to seek legal advice as there are often very strict time limits.
Where the mother and / or the baby were injured (physically and / or psychiatrically) by the birth process negligence proceedings are often considered due to the ongoing financial losses associated with injuries, particularly serious injuries.
In order to bring proceedings in NSW, it is necessary for a plaintiff (the mother and/ or the baby) to prove the following:
- The hospital and / or the obstetrician owed the mother and/ or the baby a duty of care. This is not controversial. It is a well-established principle that a duty of care is owed by medical professionals to their patients.
- The duty of care owed to the mother and/ or the baby was breached by the obstetrician and or the hospital. In order to prove the breach, it is necessary for the lawyer to review the clinical records of the mother and baby and refer to an expert obstetrician and / or midwife for their expert opinion/s.
- The breach of the duty of care caused damage to the mother and/ or the baby. Again, the lawyer would need expert advice in relation to the particular damage caused by the breach. The damage means physical and / or psychiatric injuries to either the mother and / or the baby.
When a family are deciding whether to bring a claim in negligence, they will typically consider the impact of the injuries they have suffered.
- An injury that requires ongoing treatment and further surgery is likely to be expensive to manage and a family may need to bring proceedings in order to recoup the past expenses they have paid and the future expenses an injury is likely to cost.
- An injury that is very painful physically and /or emotionally is likely to be difficult to overcome and a family may find that the mother and /or the baby are likely to suffer a loss of enjoyment of life as a result of the injury.
- An injury that stops the mother returning to work is also likely to affect the family financially and can be a significant factor in choosing to pursue legal proceedings.
- An inability to perform caring responsibilities and/ or do household chores can led to a family incurring considerable expenses if these tasks are done by cleaners or nannies and other difficulties in a family is forced to rely on the support of family and friends. This can again be a significant factor that pushes a family towards legal proceedings.
Everyone who brings legal proceedings is concerned about the cost of the proceedings. Most lawyers who act in this area will defer their fees and act on a ‘no win no fee’ basis. If the case is successful, the insurer for the obstetrician and/ or the hospital will pay most of the family’s legal fees as part of the settlement.
In summary there are different options depending on the particular needs of the mother and / or the baby who has been through a traumatic birth. It is worth noting that that these options are not mutually exclusive, and many people choose to pursue more than one option.
If you would like further details, contact our expert team today on 02 4050 0330 or book an appointment online.
