A Crash Course on Birth Injury Claims

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By Louise Cantrill, Partner and Enoch Hui, Lawyer

The anticipation of a newborn child is generally met with widespread joy for family and friends alike. The planning of baby showers, name reveal parties, and family gatherings are all part of a memorable experience that is cherished for a lifetime. However, for the families who are undergoing (or have undergone) a difficult birthing experience, it can lead to physical and/or psychological injuries, some of which may give rise to civil litigation. For someone tasked with assessing these claims, there are four issues to keep in mind.

Firstly, it is fundamental to understand the type of birth injury and the effects of the injury. Some of the more common injuries include brachial plexus palsy (injury to nerves which control arm and hand movement), cephalohematoma (bleeding under the cranial bone), facial paralysis (damaged facial nerves arising from excessive pressure during delivery), fractured collarbones (especially common in babies born in breech position), and spinal cord injuries (often resulting in paralysis and neurological problems).

This needs to extend to an understanding of the type of injury which may have been separately suffered by the mother and its effects. Birth injury claims will often involve injuries to both the baby and the mother.

Secondly, it is essential to identify the potential cause(s) of the birth injury. One of the most severe causes is oxygen deprivation (birth asphyxia), which leads to brain damage (Hypoxic Ischemic Encephalopathy or HIE) arising from insufficient levels of oxygen and blood to the brain. Excessive trauma is another cause which can lead to serious diagnoses such as cerebral palsy (abnormal brain development resulting in movement disorder) and HIE. Furthermore, premature or delayed births can cause lasting injury to the baby’s brains and lungs.

These issues can be hard to unpick – for example, was it the difficult birth that led to the infant’s condition, or was it the infant’s pre-existing condition in utero which resulted in a difficult birth? Expert evidence on this issue will be key.

Thirdly, and perhaps the most tedious step of this process, understanding the medical terminology wil be essential. It is impossible to assess a birth injury claim without reviewing the medical records of the mother and baby, as well as the expert reports obtained to address the relevant birthing issues, both of which will contain an abundance of medical terminology. Whilst an extensive amount of research time may be required during the initial stages of the proceedings, a deeper vocabulary will greatly assist when reviewing medical records and expert reports, which in turn generates a deeper understanding of the birth injury claim as a whole.

Finally, anyone involved in assessing these claims should anticipate significant costs. The complex nature of this field necessitates additional time and costs for claimants, defendants and experts to assess the copious amounts of documents often involved in birth injury matters. While recognizing the complexity of such claims, steps to minimize costs should be explored as early as possible, including requesting or making admissions at an early stage of proceedings, proposing alternative dispute resolution, and serving Offers of Compromise where possible.

In summary, an assessor with carriage of a birth injury claim should:

  1. Understand the type of birth injury and its effects on both the baby and the mother.
  2. Understand the cause/s of the birth injury.
  3. Learn and understand the medical terminology.
  4. Anticipate significant costs in birth injury claims, and consider potential avenues for early resolution to avoid incurring unnecessary costs.

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    TPD: Gavan v FSS Trustee & MetLife [2019] NSWSC 667