“Was it actually negligence, or did something just go wrong?”
It’s one of the most common questions we hear — and it’s a genuinely difficult one to sit with, especially in the middle of caring for a newborn, recovering physically, or supporting a partner through both. Birth is unpredictable. Complications happen even with excellent care. So how does one know the difference between an unfortunate outcome and a preventable one?
The law actually has a clear framework for this and here it is, in plain English.
Medical negligence has three parts — and all three matter
A medical negligence claim isn’t built on how someone feels about what happened, understandable as that reaction is. It rests on three specific legal elements, each of which has to be established.
- Duty of care: This is usually the simplest element in a birth setting. A doctor, midwife, or hospital treating a mother or baby owes their patient a duty of care. In almost every birth injury matter, this element isn’t in dispute — the duty exists.
- Breach: This is where it gets more specific. A breach means the care provided fell below the standard that a reasonably competent practitioner, with equivalent training and specialisation, would have provided in the same circumstances. Importantly, this has nothing to do with intent. A doctor can be well-meaning, hard-working, and still fall below the required standard. A hospital can have excellent individual staff and still have systemic failures — in monitoring, communication, or escalation — that amount to a breach.
- Causation: This is usually the most complex element, and often the one that determines whether a claim succeeds. It’s not enough to show that care fell short — it has to be shown that this shortfall actually caused, or materially contributed to, the injury. Sometimes an injury would have occurred regardless of the standard of care provided. Establishing causation means distinguishing what the breach actually caused from what may have happened anyway.
Why causation needs independent experts
Causation is rarely something that can be argued from the medical record alone. It typically requires an independent expert — an obstetrician, neonatologist, or relevant specialist — to review the clinical timeline and give an opinion on whether the breach caused the harm.
Australian courts require these experts to owe their duty to the court, not to whichever side retains them. Their job is to give an honest clinical opinion, not to advocate. This is part of why specialist legal teams matter — knowing which experts to instruct, and what questions to ask, has a material bearing on how strong a case turns out to be.
If you want to understand how this plays out in a common real-world scenario, our piece on CTG monitoring and birth injury negligence walks through how breach and causation are assessed when fetal distress isn’t picked up or acted on in time. And if your situation involves a decision you weren’t fully informed about, our article on informed consent and your legal rights during childbirth covers that specific angle.
What this means for you, practically
You don’t need to arrive at a conclusion about duty, breach, or causation yourself. That’s the work for a proper legal and clinical assessment — and it’s not work you’re expected to do alone, or in advance.
What’s actually useful, at this stage, is to consider some simple questions:
- Was I told what went wrong, and why?
- Was the standard of care reasonable?
- Is there a plausible link between what happened and the outcome?
If those questions are sitting with you, that alone is reason enough to have a conversation.
A note on who’s behind this
Anthony Porthouse has spent 36 years working through exactly these questions — duty, breach, causation — in some of the most complex medical negligence litigation in the country. That’s not mentioned to impress; it’s mentioned because assessing negligence properly requires exactly this kind of specialist experience, not a generalist approach.
If you’d like to talk through your situation, you can book a confidential, no-obligation assessment. There’s no cost and no pressure attached to that first conversation.
