Most pregnancies end happily with a healthy mother and baby. Tragically, this is not always the case. Around 800 mothers a year in NSW experience the tragedy of losing their child either through stillbirth or death in the neonatal period.
What is stillbirth and neonatal death?
Stillbirth is defined as the delivery of a baby greater than 20 weeks gestation with no signs of life. Neonatal death is the death of a baby within the first 28 days of life.
In Australia, there are 6 stillbirths every day or 2,000 every year. The number of neonatal deaths is over 800 per year or 2-3 per day. The numbers don’t seem to be reducing despite significant medical and technological advancements over the last 20 years.
Such a tragedy invariably leaves parents asking “why”? In our experience, from handling many cases involving neonatal death and stillbirth, many are avoidable and a result of medical negligence.
Getting answers and changing procedures
Finding answers to unanswered questions is one reason that many clients give for seeking the assistance of a medical negligence lawyer. Anecdotally, parents who have experienced stillbirth or neonatal death seldom feel that the health professionals or hospitals involved have been willing or able to provide them the information they need to start to come to terms with what has happened.
Holding those responsible accountable for any negligence ensures lessons are learned and changes to procedures are made. Learning what really happened and whether the death of their child was avoidable helps give families a reason for the trauma and loss they have experienced and assists with the process of ‘moving on’.
Legal hurdles in negligence claims for stillbirth and neonatal death
The first hurdle to bringing a medical negligence claim is to establish there has been a loss in the eyes of the law. At law, a medical negligence claim only exists where at least one of the parents develops a recognised psychiatric injury because of the death of their child. There is no compensation for the loss of the child itself. Most people are appalled to learn that even where it can be established that the death of their baby was due to negligence, at law that death is not compensable in its own right. To hold the negligent party accountable at common law, the parents need to prove that they have suffered more than “mere grief” – a term that is offensive to many.
Steps in a medical negligence claim
A medical negligence investigation generally begins with obtaining relevant medical records and proof of evidence from our client. If the hospital conducted internal investigations into the cause of the death, we request those documents as well. Our expert health lawyers, with support from our in-house Clinical Nurse Consultant, collate and analyse the information, and obtain the opinion of other qualified medical experts.
In some cases, there will be clear evidence of a departure from acceptable standards by the health practitioners involved. However, establishing that that this breach of duty in fact caused the baby’s death is often difficult. Partly because stillbirth remains poorly understood. For neonatal deaths, it is not uncommon that investigations that could have assisted in determining the cause of the baby’s death are not conducted in a timely manner or at all.
The importance of an autopsy
Medical negligence investigations are constrained by the documents created and investigations undertaken by the health practitioners involved at the time. In both stillbirth and neonatal death, parents often, understandably, refuse consent to an autopsy. Unfortunately, sometimes an autopsy is the best chance for obtaining critical information about what happened to the baby.
Coroners rarely investigate stillbirths and neonatal deaths
The Coroner cannot investigate stillbirths even if this is what the parents want. A baby must take an independent breath before a referral can be made to the Coroner. The only option available to parents in that situation is to pay for their own independent investigation. Even if the hospital decides to conduct an internal review, it is unlikely that the parents will be provided with the results.
Neonatal deaths are rarely referred to the Coroner. If a death occurs due to a recognised complication of pregnancy and birth, with apparent appropriate clinical management, then it is not a “reportable death” for the Coroner. This means that neonatal death from prematurity, foetal anomalies, cord prolapse or placenta praevia falls outside of the Coroner’s jurisdiction. Similarly, if a procedure during birth is taken to avoid death, and the clinical management of the procedure appeared appropriate, these are not classed as reportable deaths. This includes complications of birth such as subgaleal haematomas following instrument births, severe hypoxia due to cord prolapse and shoulder dystocia.
How can we help?
If you are looking for information or help following a stillbirth or neonatal death, we can help you navigate the process including referring you to support services.
Our Health Law team is highly respected and experienced, with specialist knowledge accumulated over 30 years. The team includes a Clinical Nurse Consultant and lawyers who have also been midwives and nurses.
Our team can assist you by providing expert advice and legal support regarding your options.
*The material provided in our information sheets is for general knowledge only and is not a substitute for independent legal advice. For further information about the issues affecting you, please contact one of our experienced and professional lawyers for expert advice.
Contact us
If you or a loved one are looking for information or help following a stillbirth or neonatal death, please do not hesitate to talk to one of our caring, expert, health lawyers about the options available to you. To confidentially discuss your needs call us on 1800 874 949 or fill in the form below, and we will be in touch.
