Birth Trauma Compensation

Sometimes, birth defects are caused by factors that are preventable, such as the pregnant mother taking incorrectly prescribed medication that has been shown to cause birth defects. These medications include certain antidepressant drugs and birth control medications. If steps are not taken to prevent them and a baby is born with a birth defect this will usually give rise to a birth trauma compensation claim.

When unpreventable birth defects are diagnosed early, and the parents are not financially prepared to take on the care of a child that requires a lot of medical care and assistance with personal care and other aspects of everyday life, they often consider terminating the pregnancy, if they are provided with appropriate advice pertaining to the implication of the birth defect on their child. Often such advice is not provided, which gives rise to a birth trauma compensation or medical negligence compensation claim for the extra cost associated with raising a disabled child.

Example: 

A doctor does not review radiological imaging properly and fails to advise the parents of any apparent abnormalities and implications of same on the imaging, so that the parents are not able to make an informed decision as to whether or no they are financially prepared to take on the care of a child with a birth defect, resulting in birth of a disabled child.

In most instances, birth injuries are something that an experienced doctor, medical practitioner or healthcare provider should be able to avoid in the exercise of reasonable skill and care.

Examples of preventable causes of birth injuries, which usually happen during a labour and the delivery process, and which often give rise to medical negligence claims are:

• Not detecting or diagnosing and treating maternal infections.
• Improperly monitoring the baby’s well-being during labour to ascertain whether the baby is in distress, and, if in distress or compromised, failing to perform an urgent Caesarean delivery of the baby. 
• Not administering correct medication or administering the wrong type or amount of medication to the mother during the pregnancy or labour or delivery.
• Using birth assisting tools without the mother’s informed consent or using birth assisting tools incorrectly or improperly. Birth assisting tools include forceps or a vacuum, and are sometimes used with too much force, improper application or incorrect pulling resulting in significant injury to the mother or baby.
• Incorrectly or improperly pulling or twisting the baby during labour and the delivery process.
• Failing to review pre-delivery radiological imaging to prevent a difficult birth and offer the mother a Cesarean section.
• Failing to detect problems with the umbilical cord, such as a prolapsed umbilical cord.
• Not monitoring and having any regard to the size of the baby in proportion to the birth canal and not ascertaining the positioning of the baby before labour and delivery.
• Other types of birth injuries or medical issues that might occur due to the medical practitioners failure to carry out their duty of care.

Medical negligence compensation claims arising out of pregnancy related conditions often overlap with claims involving birth defects and birth injuries. 

Examples:

• Gestational diabetes.
• Pre-eclampsia or eclampsia.
• Broken bones and extensive bruising.
• Uterine ruptures.
• Vaginal and anal fissures and fistulas.
• Vaginal and anal tears and lacerations.
• Failed episiotomies or failure to diagnose and correctly repair an episiotomy or vaginal tear or laceration.
• Urinary catheter complications.
• Aesthetic complications.
• Other complications during the birthing process.

Examples of consequence of birth defects and birth injuries, which are associated with permanent numerous disabilities or severe injury, include:

• Brain injuries, such as cerebral palsy, leading to intellectual disabilities.
• Erb’s palsy and associated limb problems.
• Permanent lack of strength and stamina.
• Cognitive and emotional impairment, as well as emotional and psychological problems.
• Failure to develop and thrive correctly.
• Joint dysfunction disorders.

In the majority of cases involving birth and birth defects injuries, there is no cure, the disabilities are permanent and place the individuals at a greater risk of serious medical problems in the future. Further, the financial expectations of taking care of children or individuals who are victims of negligently caused birth injuries or birth defects significantly outweigh what is an average family can afford, and usually include:

• equipment, therapeutic aids, computing and technology
• medical treatment, medical expenses, therapy and medication.
• cost of home and vehicle modifications.
• Additional cost of holidaying and engaging in recreational activities.

 The majority, if not all, of the above expenses is recoverable from the negligent healthcare provider. In addition, you or your injured child may be entitled to recover compensation for:

• Pain and suffering, which is known as non-economic loss.
• Past and future loss of earnings and superannuation.
• The cost of past and future care and assistance with personal, domestic, household and property maintenance tasks including care and assistance provided in the past by family and friends.
• Cost of fund management if you or the child does not have the capacity to manage your or his/her financial affairs.