Can I make a stillbirth compensation claim due to medical negligence?

The Australian healthcare system is considered one of the best in the world, providing safe and affordable treatment for all Australians. However, the complex nature of some treatments and procedures means that things do not always go to plan. This is the unfortunate reality for one in every 135 mothers whose pregnancy ends with a stillborn child.

The cause of stillbirths is often linked to genetic factors. However, some instances are due to medical negligence, turning one of the most exciting chapters in a family’s life into one filled with mental and physical trauma.

If you believe you or your family has a stillbirth claim, review the information below to learn more about:

• What a stillbirth is
• Common reasons for stillbirth due to negligence
• Whether a coronial inquiry is needed
• Time constraints associated with claims
• How to make a claim today

What is stillbirth?

A full-term pregnancy is generally 40 weeks and in this time, a baby is afforded the best possible chance of survival. A stillbirth is the birth of a baby that has died 20 weeks into the pregnancy. If the exact length of pregnancy is unknown to medical professionals, the child will be considered a stillbirth if it weighs 400 grams or more.

Stillbirths generally occur due to genetic factors such as:

• Congenital anomalies (conditions impacting the body structure or function while inside the womb)
• Premature birth (when the baby is born too early in the pregnancy cycle)
• Maternal medical conditions (diabetes, heart disease, etc.)

Lifestyle factors are also a possible cause. These include:

• Obesity
• Smoking
• Alcohol

What is the most common reason for stillbirth due to negligence?

Australian medical professionals are among the most skilled in the world, providing their dedication and expertise to those in need. However, even in one of the most acclaimed healthcare systems, negligence does occur. In Australia, 50,000 people suffer from medical negligence a year.

Annually there are 2,000 stillbirths, leaving parents desperate for answers. And sometimes, the reason is linked to medical negligence due to the actions or inactions of the overseeing medical professional.

Common reasons for stillbirth due to negligence include:

• Overlooking signs of foetal distress
• Delaying an emergency Caesarean section
• Piercing a mother’s placenta
• Failing to identify or prevent an infection in the womb

Can I claim compensation for stillbirth and what does it cover?

No amount of money can fill the void created by the loss of a child. However, financial compensation is available to help deal with the aftermath of avoidable stillbirth.

A duty of care is owed to all patients, and if this duty of care has not been met, your family is well within its rights to make a stillbirth compensation claim for psychological pain and suffering.

For instance, if the psychological injury does not enable family members to transition back into work effectively, a claim for a loss of earnings is possible. Other associated costs from counselling to funeral expenses can also be claimed.

Will I need a coroner to investigate the stillbirth?

The Coroner’s Court does not have the legal authority to proactively investigate unless a baby has taken an independent breath and has survived for a short period after delivery. If these legal criteria can be met, an appointed Coroner has the jurisdiction to investigate and report the cause of death.

The investigation is completed either through an inquest or the informal procedure of obtaining statements from relevant parties. The Coroner will then make a conclusion regarding the cause of death and recommend how to avoid a similar death to a baby in the future.

A Coroner’s report is not a prerequisite for a compensation claim, with the claim able to proceed regardless of whether or not any findings were made.

Legal representation during these proceedings is not essential. However it is recommended and can be of great assistance in achieving the most appropriate compensation benefit.

Are there any time limits associated with stillbirth claims?

If your baby was stillborn or died shortly after delivery due to medical negligence, you have three years from the discoverability date or the date of injury, depending on the state in which the events occurred, to submit a compensation claim for your pain and suffering. However due to their complexity, it’s not uncommon for claims to take years to settle. We recommend getting in touch with our Claim Specialists as soon as reasonably possible to discuss your unique circumstances and to explore your options.

Make a medical negligence claim today

LHD Lawyers help everyday Australians receive the benefits they’re entitled to for medical negligence claims. We are so sure of our abilities to win your case that we stand firmly by our No Win No Fee Policy: if we don’t win, you don’t pay. Call 1800 455 725 for a no-obligation consultation about your case.

Author: Stephen Morgan

Original Publish Date: May 19, 2022

Last Updated: April 12, 2024