The vast majority of pregnancies end happily with a healthy mother and baby. Sadly however, this is not always the case.
The birth of a child is expected to be a joyous occasion but around 800 mothers a year in NSW experience the tragedy of losing their child either through stillbirth or death in the neonatal period. 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 2000 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 almost invariably leaves the parents asking “why”?
Finding answers to unanswered questions is one reason that many clients give for seeking the assistance of a medical negligence lawyer. Anecdotally at least, those affected by 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.
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 as a result 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 in itself is somewhat offensive to many.
The impact of the restrictions imposed by the law of negligence is that it is not economically possible for many parents to engage the services of a lawyer to assist. There can be no prospect of a ‘no win no fee’ agreement if ultimately there is no claim. That said; there are a small number of parents who can afford to engage lawyers to investigate the death of their child even though they have no intention of bringing a claim for negligence, in order to feel they have done all they can to obtain truthful answers to their questions. In addition, a large number of parents who suffer the devastating experience of losing a baby will develop a recognised psychiatric condition as a result of the events and will be entitled, where negligence can be established, to bring a claim.
A medical negligence investigation generally begins with obtaining the relevant medical records and a proof of evidence from the client. Where the hospital concerned has conducted internal investigations into the cause of the death, requests can be made for some of those documents as well. Once all the information is received, collated and analysed the independent opinion of a suitably qualified expert is then sought.
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. In situations involving stillbirth, an expert’s ability to opine on the reason for foetal demise is hindered by the fact that 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 by in a timely manner or at all.
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 refuse consent to an autopsy when the issue is discussed with them. Unfortunately, sometimes an autopsy is the best chance for obtaining critical information about what happened to the baby and therefore unless the process for obtaining consent for autopsy is forthright and robust, a critical opportunity for obtaining information may be foregone and the decision later regretted.
The Coroner cannot investigate stillbirths. A baby must take an independent breath before a referral can be made to the Coroner; therefore stillbirths are outside of the coronial jurisdiction. This means that serious medical mismanagement that may have led to a stillbirth cannot be independently examined by the Coroner even if this is what the parents want. 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 they occur as the result of a recognised complication of pregnancy and birth in circumstances when clinical management appears to have been appropriate then they are not “reportable deaths” for the Coroner. This means that neonatal death as a result of prematurity, foetal anomalies, cord prolapse or placenta praevia would fall outside of the Coroner’s jurisdiction because they are considered a reasonably expected outcome or complication. Similarly, if a procedure during birth is taken to avoid death and the clinical management of the procedure appeared appropriate, again 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.
Our health law team is highly respected in the health and medical litigation arena, with specialist knowledge accumulated over 30 years.
*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.