Tiffany Laslett discusses Birth Injuries
Birth injury claims involve complex medical and legal issues.
Although childbirth can be one of life’s most significant and miraculous experiences for prospective parents, there are many potential complications that can occur, during both pregnancy and labour.
The World Health Organisation estimates that around 830 women die every day around the world, roughly one every 2 minutes, from preventable causes related to pregnancy and childbirth. Whilst the majority of these deaths occur in developing countries, the statistics reflect the potential for things to go terribly wrong. Rates of fetal death, caused by complications such as infection, placental abruption, maternal hypertension, birth defects or preterm labour, as opposed to a miscarriage in early pregnancy, are declining but fatalities still occur.
Sadly, we are instructed from time to time to act on behalf of families who have lost an expectant mother or child during pregnancy or labour.
More commonly, however, we are engaged to act by families whose child has survived childbirth but been left with permanent disabilities, usually a brain injury as a result of oxygen deprivation during labour, (“birth asphyxia”).
Investigating such claims is an intensive process, involving close analysis of the medical records, reviewing hospital and medical guidelines and scientific literature, and arranging conferences with independent medical experts to determine what went wrong and why.
Although most members of the community have some understanding of the concept of negligence and the need to be able to prove this to pursue a claim, the concept of causation is equally important, but perhaps less well understood.
In a nutshell, proving causation involves proving that if there had not been any negligence, the outcome would have been different. In a birth injury claim, this means showing that the birth injury would have been either completely avoided, or alternatively, the child would have been much better off.
As this means consideration of a hypothetical scenario, there are often widely varying expert opinions in such claims. Take, for example, the facts involved in the complex case of Wells by his tutor McGuffog v Hunter New England Local Health District [2018} NSWSC 1877.
The plaintiff in McGuffog was born on 25 September 1996 at Manning Base Hospital, Taree after his mother was involved in a motor vehicle accident. The accident precipitated labour.
The plaintiff’s claim was that when the motor vehicle accident happened, he suffered a brain injury in utero causing him to be born with various disabilities including speech, language and communication deficits, fine and gross motor dysfunction, learning difficulties, global developmental delay, behavioural disorders, mild cognitive disability and mild autism.
Whether or not the disabilities claimed resulted from the motor vehicle accident was in dispute. Determination of this difficult issue was further complicated by the fact that the plaintiff, and the driver of the vehicle responsible for the accident, also asserted that the hospital was at fault because of the way in which the labour was managed.
If the matter went to trial, the Court would, therefore, need to determine: the nature and extent of any brain injury sustained by the plaintiff, to what extent the motor vehicle accident was to blame, to what extent events during labour had resulted in the brain injury and whether or not the labour had been managed appropriately.
An additional issue that arose was whether the plaintiff’s disabilities were as a result of genetic factors.
The hospital made an application to the Court for an order that the plaintiff undergo genetic testing. (Courts in Australia have the ability to require claimants to attend medical examinations in personal injury claims, and this extends to requiring them to submit to tests and examinations).
Multiple independent medical experts were involved in the matter. Some of them considered genetic testing to be a waste of time and others considered that genetic testing would be likely to shed light on causation of the plaintiff’s disabilities.
In making an order that the plaintiff undergo the genetic testing, the Judge referred to the potential quantum of the plaintiff’s claim should the claim be successful, the fact that there was sufficient evidence to be satisfied that the results could shed light on the issues of causation in dispute in the matter and the non-invasive nature of the testing.
The judge also said that Courts were expected to rely on science and medicine to assist with resolving contested issues of causation and contribution.
They did not. however, require the plaintiff’s mother to be tested.
If the results of the genetic testing were positive then no doubt, further argument would be necessary about the accuracy and significance of such results ie further causation disputes.
It is likely with advances in the accuracy and affordability of genetic testing that such applications will become more frequent in our Courts. Each such case will, however, have to be considered individually and the outcome will depend on the particular circumstances involved.
The McGuffog case is a good example of how complex issues of causation can be, and how important it is when seeking legal advice that it be obtained from a lawyer with expertise in not only medical negligence claims, but birth injury claims.
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