If something went wrong during your birth, one of the first questions you’re likely to ask is whether you have a legal claim. The honest answer is that not every unexpected or poor medical outcome gives rise to one — but understanding the difference between a difficult outcome and a negligent one is exactly where specialist legal advice matters most.
To succeed in a birth injury claim in Australia, four legal elements must be established: that the healthcare provider owed a duty of care; that they breached the standard of care expected of a competent practitioner in their field; that the breach caused or materially contributed to the injury; and that the injury resulted in compensable loss or damage. Informed consent is a separate but equally important consideration — a failure to properly warn a patient of material risks before a procedure can itself give rise to a claim, independent of whether the procedure was performed competently.
Where a claim is viable, the categories of compensation that may be available include pain and suffering, past and future medical expenses, domestic and personal care, and past and future economic loss. It is also important to understand how a compensation settlement can interact with Centrelink payments and NDIS funding — the NDIA may recover funding for NDIS supports relating to the injury that have been paid out of a participant’s plan, and Centrelink may apply a preclusion period to income support payments following receipt of a lump sum. The value and viability of a claim can also differ meaningfully depending on the state or territory in which it is brought.
In this episode of the Birth Injury Lawyers Podcast, Director and award-winning lawyer Anthony Porthouse walks through each of these elements in plain language — including what happens when a claim is investigated, the role of medical records and independent expert evidence, and what families wondering whether they have a claim should consider doing next.
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Wondering whether what happened during your birth could give rise to a legal claim? The team at Birth Injury Lawyers can help you understand your rights — with no upfront cost and no obligation.
