In Medical Negligence Claims
Birth trauma compensation claims: a guide for parents

Hospitals and health professionals have a duty of care to you and to your baby. In some circumstances, compensation can be available for injuries caused to you or your baby before, during or after childbirth caused by negligent treatment or advice given by a health professional. This type of medical negligence compensation is commonly referred to as birth trauma claims.

The birth of a baby should be the most joyful and wonderful experience for any family. However, for some parents, the journey of childbirth can be filled with unexpected complications and difficulties Some of those complications can result in the baby and/or the mother suffering avoidable harm before, during or after the birth.  The impact of birth trauma upon a child and their family can be devastating and life-altering.

Common errors that lead to birth trauma

  • Injuries during delivery – including from forceps, vacuum, and c-section deliveries;
  • High grade perineal tears;
  • Delay in delivering a child;
  • Anaesthetic mistakes;
  • Genetic misdiagnosis and failure to detect dangerous medical issues.

Over the past year, we have assisted a number of people who have suffered a birth injury to the mother or their baby during pregnancy or labour due to a medical error.

How does compensation help after birth trauma?

The purpose of compensation claims for birth trauma is to address the physical, emotional, and financial effects of childbirth injuries. It can provide families with the resources to access medical treatment, therapy and supports, and can also reduce the financial burden caused by medical bills, lost income, and ongoing care needs associated with birth injuries.

Preparing for a birth trauma compensation claim

The process of investigating a potential birth trauma claims commonly involves a number of key steps. These include your legal team:

  1. gathering all of the relevant medical records;
  2. carefully analysing and summarising those records;
  3. obtaining independent expert medical evidence regarding the treatment or advice provided, and the link between the treatment and the birth injuries;
  4. arranging for the injuries to be thoroughly assessed by medical experts.

It’s important for parents to seek legal guidance from experienced birth injury lawyers who have expertise in medical negligence claims. These lawyers provide invaluable support and advocacy throughout the compensation process, helping families navigate complex legal procedures and negotiate fair settlements.

Time limits for medical negligence claims related to birth trauma

In Victoria, there are specific laws and regulations governing how long a person has to bring a personal injury claim – including birth trauma compensation claims. As a result, it’s essential for parents to act promptly and seek legal advice as soon as possible after the occurrence of a birth injury becomes known.

What compensation is available for birth trauma?

When assessing compensation for birth trauma, Victorian courts consider various factors, including:

  • the severity of the injury;
  • the long-term impact on the child’s health and quality of life; and
  • the economic losses incurred by the family.

Compensation may cover medical expenses, rehabilitative therapy, lost wages, pain and suffering damages, and past and future care needs.

In cases where a child has suffered a permanent disability or impairment as a result of birth trauma, compensation may extend to cover lifelong care and support. This can include expenses related to specialized medical equipment, home modifications, educational support, and other accommodations necessary to enhance the child’s quality of life.

UK birth trauma case delivers significant compensation

A UK case (in 2023), CNZ v Royal Bath Hospitals NHS Foundation Trust & Anor [2023] EWHC 19 (KB) (on ICLR), demonstrates a common issue that arises in Australian birth trauma compensation claims: the choice of delivery by caesarean section. The child suffered cerebral palsy and brought a claim for compensation for their injuries (the claim being brought by the child’s parents on her behalf).

The mother of the child gave evidence that she was not offered an elective caesarean section when one should have been offered, and that when she requested a caesarean section her requests were refused or ignored. As a result, she claimed that the delivery of the child was delayed, and that as a result the child suffered a severe brain injury in the minutes before delivery.

The Hospital argued that it was not reasonable treatment to offer a caesarean section in advance, and that during the labour the mother’s request was granted within a reasonable time.

The Court found that the doctor had failed to discuss the reasonable treatment options with the child’s parents, and did not fully inform them of the risks and benefits to allow them to make an informed choice. The Court also found that the hospital staff failed to act in a timely way to the reasonable request for a caesarean section made by the child’s mother.

The Court ultimately found that the injuries to the child were caused by the unreasonable delay in delivering the child.

Because of the Court’s decision, the child and her parents are likely to have an entitlement to compensation which is likely to be several million dollars – the vast majority of which will be for the child’s medical and personal care in the future.

We wrote about this case in more detail in our earlier blog, “Birth Trauma Claims and Updated Case Law out of the United Kingdom”.

Thankfully, very few birth trauma cases in Victoria need to be determined by a Court, with the vast majority resolving by way of a negotiated settlement prior to a Court hearing.

Part of the reason for this is that such claims, while very complex, are generally carefully prepared and resolved by specialist medical negligence lawyers with large amounts of experience in birth trauma cases. As a result of cases being well prepared and supported, the parties are frequently able to narrow the issues in dispute and resolve claims before they are heard by the Court.

While compensation cannot erase the pain and trauma caused by a birth injury, it can provide families with the resources they need to move forward and rebuild their lives. It serves as a form of accountability for healthcare providers and facilities responsible for preventable birth injuries, helping to improve patient safety standards and prevent future occurrences of medical negligence.

Birth trauma compensation plays a critical role in supporting children and their parents affected by avoidable birth injuries. By seeking legal remedy (medical negligence compensation for birth trauma) and holding responsible health providers accountable, parents can obtain the financial support and services they need to optimise recovery.


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