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Peter Jackson

- 1 Dec 2022
  • Birth Injury

  • Personal Injury

Seeking compensation for birth injuries

All parents want the very best for their new baby — including the healthcare providers who are responsible for their unborn child’s health.    

The care of an unborn child can be managed through a number of models in South Australia. This includes shared antenatal care between a GP and a hospital, midwives’ clinic, obstetrician antenatal care, aboriginal family birthing program, and more. 

Part of the medical care provided by these various models includes performing routine check-ups, and, at the end of the pregnancy, delivering the baby as safely as possible.

However, all too often, babies are born with problems that don’t match their parents’ expectations.

Sometimes it’s because the baby is born with an undiagnosed birth defect, and sometimes it’s because the baby is a victim of a birth injury that occurs during labour and delivery.

Doctors and midwives are human and make mistakes, but the fact remains that they are responsible for ensuring a baby is delivered into the world as healthy as possible, and without injuries caused by the negligence of the care provider.


Understanding the difference between a birth defect and a birth injury

A birth defect is a health problem that inflicts your baby from the outset, based on your child’s DNA. 

Examples of birth defects are Down Syndrome, a cleft palate, a heart murmur, or other health problems stemming from the structure of the child’s DNA.

However, in some instances, birth defects can be caused by outside factors.

For example, some medications — including certain antidepressant drugs and even certain birth control medications — have shown to cause birth defects if taken by a pregnant woman. 

In these cases, the birth defects could have been prevented had the doctor not prescribed these types of medications during pregnancy.

On the other hand, a birth injury is, in most cases, a preventable health problem that a baby is born with. 


Causes of common preventable birth injuries

The most common types of preventable birth injuries are caused by:

  • pulling and/or twisting of the baby improperly during the delivery period;
  • improper handling and use of birth-assisting tools, such as forceps or a vacuum extraction tool;
  • administering the wrong amount or the wrong type of medication to the mother during pregnancy and during labour;
  • failure to monitor the baby properly for distress, including failure to regularly monitor fetal heartbeat; and
  • failure to schedule and perform an emergency caesarean section when the baby is in distress.

Medical staff can make mistakes that harm your child (sometimes for a lifetime) for a variety of reasons, including inattentiveness, exhaustion, or inexperience.

Sometimes, an experienced practitioner, who is better equipped to handle high-risk pregnancies is not available when the baby is being delivered.

None of these reasons are excusable, but unfortunately, are often the cause of preventable birth injuries. 

While these are all things that midwives and doctors should know how to avoid, these accidents still happen, especially during stressful or difficult deliveries.


Medical negligence

Another way that your child could receive a birth injury is through medical negligence.

Medical negligence could be the result of something as simple as a doctor not viewing the imaging materials properly (such as an ultrasound), which could prevent a difficult labour. 

In fact, most birth injuries happen due to difficult labour.

Sometimes birth injuries and difficult labours can be prevented simply by monitoring the size of the baby in proportion to the birth canal, seeing what position the baby was in weeks before labour, and whether the umbilical cord and placenta were in proper health and in healthy positions.  

Difficult labours commonly result in Erb’s palsy and associated arm problems, or in hypoxia causing brain injuries such as cerebral palsy and intellectual disabilities.

However, medical negligence could start earlier than labour. For example, medical negligence could be the doctor’s failure to perform necessary tests. For example, one of many important tests that the doctor should check for is whether the mother has group B strep infection.

If the baby’s birth injury is related to the doctor not performing the right tests, this is an example of medical negligence.  

Even if the baby is born with a birth defect — something that wouldn’t be considered preventable — and the parents and doctor are seemingly surprised about the state of the baby’s health, this is considered medical negligence (also called wrongful birth).

Sometimes the parents are not financially prepared to take care of a child that requires a lot of medical care as a child with a birth defect would, and if the doctor did not give them the proper knowledge beforehand, this is considered medical negligence, and the parents may be entitled to claim for the additional cost of raising their disabled child.


Types of preventable birth injuries


Brain-related Injuries

Brain-related birth injuries can present in several different ways.

Often, brain injuries develop from oxygen deprivation, such as anoxia, hypoxia, birth asphyxia, and perinatal asphyxia.

Hypoxic Ischemic Encephalopathy (HIE) is a birth injury that describes the starvation that happens to the brain as a result of oxygen deprivation, and the sometimes severe consequences.   

When a brain has been deprived of oxygen, it can react in various ways.  

For example, sometimes, when a brain is deprived of oxygen, it can react by draining the blood from the brain. This is called brain ischemia. 

Additionally, brain-related injuries can happen from other birth injuries, such as:

  • the growth of newborn jaundice into kernicterus, flooding the brain with bilirubin; and
  • the development of the group B strep infection to meningitis, which interferes with electrical communications between the spine and the brain.

Cerebral palsy

The leading brain-related injury in relation to birth trauma is cerebral palsy.

Although any type of birth injury is devastating, cerebral palsy remains one of the most severe health disorders stemming from birth injuries.  

In most cases, cerebral palsy leads to devastating health issues and disabilities that last a lifetime. Since there is no cure for cerebral palsy, these permanent disabilities not only place babies at risk of serious medical problems, but can place families under financial pressure, too. 

Cerebral palsy will vary in severity, ranging from light involuntary movements while carrying out daily activities, to complete loss of movement.  

There are lots of ways that birth injuries can contribute to the development of cerebral palsy, including doctors who fail to:

  • detect, diagnose, and treat maternal infections;
  • properly monitor fetal heartbeat;
  • detect umbilical cord problems, such as a prolapsed umbilical cord;
  • detect maternal and/or foetal distress, and in turn fail to schedule and carry out an emergency caesarean section surgery; and
  • properly use birth-assisting tools during childbirth by applying too much force or improper pulling.

Muscle-related or physical injuries

Muscle-related injuries may be related to more blatant medical negligence such as lacerations, bruises, or broken bones.

This can also cause other physical birth injuries such as skull fractures or cephalohematoma — the bruising of the area between the brain and the outer layers of skin.

These are some common muscle-related and physical injuries. 

Brachial Plexus

Brachial plexus happens when the upper extremity of the arm is injured, usually during delivery.  Symptoms include weakness in the affected arm and the inability to use certain muscles in the affected arm.

The shoulder and hands may also be affected. 

Electrical-type shocks and a burning sensation down the affected arm is also common.

Erb’s Palsy

Erb’s palsy is a form of brachial plexus marked by the nerves of the upper arm being affected, usually after a birth injury.  

Babies with Erb’s palsy may experience the loss of feeling and weakness in the affected. In severe cases, babies may have total paralysis in the affected arm.

Klumpke’s Palsy 

Klumpke’s palsy, another form of brachial plexus, is caused by damage to the lower nerves in the arm, affecting the arm, wrists, and fingers.  

Typically, a baby with Klumpke’s palsy will have total paralysis in the affected area, and the hand usually takes on a permanent, claw-like shape.

Shoulder Dystocia

Shoulder dystocia is a birth injury that occurs when a baby’s head and shoulders get trapped behind the mother’s pelvic bone during delivery.  

Although shoulder dystocia only happens in one per cent of all pregnancies, the complications that arise with this type of injury can be severe.  

Along with the risk of maternal haemorrhaging and uterine rupture, the baby may experience difficulties when breathing, a collarbone fracture, cerebral palsy, a brachial plexus fracture, and in some instances, death.


Birth injuries related to infections or developed through pregnancy

In some instances, a birth injury is passed on from the mother. However, it is the doctor’s job to detect and treat any maternal problems.  

Some of these birth injuries are attributed to infections, such as the group B strep infection or meningitis, both infections that the mother can carry in the vagina without even knowing it (about one in every four mothers carry these infections without any symptoms or knowledge of these infections).  

Children can catch the infection from their mother just by passing through the birth canal where these infections are stored in the process of being born. 

Other birth injuries caught from the mother are injuries developed through pregnancy that the doctor should have tested for or found early.  

These injuries include folic acid deficiency, anaemia, and spina bifida. These  birth injuries could have possibly been prevented by the mother taking supplements based on the doctor’s recommendations.

An additional birth injury that could happen at the end of pregnancy, just before delivery, is meconium aspiration syndrome, which occurs when the baby is under stress from a long and difficult delivery.  

The baby defecates in the uterus and then breathes in the meconium, causing severe breathing problems after birth.

Injuries from delivery

It is common for birth injuries to arise during delivery. These types of injuries occur from the use of vacuum extractor or forceps, tools invented to assist in delivery.

Other injuries from delivery may include administering the wrong medication, or mishandling the baby, resulting in broken bones, lacerations, or skull fractures.

Depending on how the midwife or doctor handles the delivery, a baby may also experience injuries related to stress or high blood pressure (hypertension).

Persistent pulmonary hypertension of the newborn (PPHN)

PPHN occurs when the placenta and/or cord responsible for delivering oxygen to a newborn shuts down. In turn, the baby has a difficult time breathing, which can lead to rapid heartbeats, cyanosis, heart murmurs, and more.

PPHN is often the result of a difficult birth, yet it can also arise due to medical negligence.  

For example, prescription-based medications such as Zoloft, Celexa, and Paxil have been linked to an increase in blood pressure, and during pregnancy, this can place stress on the baby.  

Other causes include failure to treat maternal infections, failure to detect and prevent a baby’s asphyxia, and performing an unnecessary C-section.


Consequences of birth injuries

Birth injuries are serious. If you think your child may be the victim of a birth injury, it’s important to track what your child’s symptoms are and to consult a doctor as quickly as possible.  

Some of the long-term consequences of a birth injury can be lessened with prompt medical attention. 

In addition to the previously mentioned disorders, birth injuries may also lead to a range of additional medical issues, including:

  • a long-term decrease in strength and stamina;
  • decreased and/or lack of nerve sensations;
  • cognitive impairment;
  • emotional impairment;
  • failure of bones to thrive and develop correctly;
  • osteoarthritis and joint dysfunctions; and
  • emotional and psychological problems.


Costs associated with birth injuries

Birth injuries are often lifelong complications that require consistent medical treatment and rehabilitation.

Depending upon the severity of the injuries, the financial costs associated can range from several thousands of dollars, right through to millions of dollars during the lifespan of a child with birth injuries.

Although there are several avenues that help parents with high costs of children with disabilities, such as the National Disability Insurance Scheme and other forms of government assistance, it’s important to remember that if your child’s birth injuries are a result of medical negligence, the midwives, doctors and/or hospital may be liable for damages.

In addition, although helpful, the National Disability Insurance Scheme and government assistance programs are typically not enough to help cover the long-term, overwhelming expenses associated with birth injuries.


How DBH’s Birth Injuries team can help you 

For any family facing the financial and emotional burden of lifelong care and assistance, claiming birthing injury compensation can be a crucial aspect of achieving long-term security.

Contact our Birth Injuries team today to find out how we can help you.