Negligent Management of Pregnancy: Your Guide to Legal Recourse and Compensation

Pregnancy is a time of hope and excitement but when medical negligence leads to complications, it can cause heartache and uncertainty. If you or your baby have been affected by negligent management of pregnancy, you may be entitled to compensation. We’re here to help you explore your options.

Can I Make a Claim?

Medical negligence cases can be complex. It’s important to understand that even if negligent treatment occurred, a claim can only be made if you or your baby suffered harm as a result. To establish a successful claim, you will need to prove:

• Negligent medical treatment occurred by your obstetrician, gynaecologist, doctor, midwife or hospital (this goes beyond a reasonable mistake).
• The negligent treatment caused an injury or harm that wouldn’t have happened otherwise.

For more information, please review the details below to understand your legal standing better.

Common Examples of Negligent Management of Pregnancy

1. Failure to Recommend Appropriate Genetic Testing During Pregnancy

Genetic testing is crucial for identifying potential genetic conditions or abnormalities in the developing fetus. Tests such as NIPT (Non-Invasive Prenatal Testing) and amniocentesis provide parents with critical information to make informed decisions about their pregnancy.

If your doctor didn't offer these tests—or didn't properly explain why they might be important—that could be considered negligence. You had the right to be informed so you could make decisions about your pregnancy with all the facts in front of you. Missing this chance could mean missed preparation or options, which no parent should have to face.

2. Failure to Diagnose an Ectopic Pregnancy

An ectopic pregnancy is a serious and potentially life-threatening condition. It happens when the fertilised egg implants outside the uterus, usually in the fallopian tubes. This requires immediate medical attention. Symptoms like sharp pain, bleeding or dizziness could indicate an ectopic pregnancy but sometimes doctors don't pick up on these signs quickly enough.

If your ectopic pregnancy wasn't diagnosed or treated in time, leading to severe complications, that's a form of negligence. You deserved prompt diagnosis and care and if that didn't happen, it's something we can help you explore in a claim.

3. Failure to Refer for Necessary Pregnancy Scans and Tests

Routine pregnancy scans and tests, such as ultrasound imaging and blood work, are essential for monitoring the health of both the mother and the fetus. These tests help identify any potential issues, such as fetal growth restrictions, placental problems or developmental abnormalities. 

Neglecting to send you for these important checks can lead to serious complications. If you feel your provider didn't take these necessary steps, it may be time to explore whether negligence was involved.

4. Failure to Monitor the Fetal Heart Rate During Labour

When you're in labour, continuous monitoring of the baby's heart rate is crucial. This is how healthcare providers detect if the baby is in distress and act quickly to avoid complications. 

If this monitoring wasn't done properly or abnormal readings were ignored, it can lead to serious outcomes, like brain injuries or even death. If you believe there was a failure to monitor your baby's heart rate or act on those readings, we can help you understand what went wrong and how to move forward.

5. Avoidable Stillbirth or Fetal Death In Utero

Fetal death in utero, also known as stillbirth, refers to the death of a fetus after 20 weeks of pregnancy but before birth. Stillbirth is one of the most devastating outcomes of pregnancy and in many cases, it's preventable. Avoidable stillbirths can occur due to various reasons, such as undiagnosed infections, untreated maternal health conditions (e.g., hypertension, gestational diabetes) or failures in fetal monitoring.

If you suspect a failure in the monitoring of your baby's heart rate or the response to abnormal readings, we can assist you in understanding what went wrong and how to proceed.

Time Limits for Making a Claim

Time limits for making a claim vary depending on state and federal laws. In most cases, you’ll need to take legal action within three years of the incident but exceptions do exist. If you're unsure about whether you're within the time frame, don’t wait—reach out so we can assess your situation.

Compensation and Benefits

If your claim is successful, compensation can help cover a range of expenses, including:

• Medical costs (past, present and future)
• Allied healthcare costs (such as physiotherapy or counselling)
• Pharmaceutical expenses
• Medical and domestic assistance
• Loss of income and future earning potential
• Compensation for pain, suffering and loss of enjoyment of life

Each case is different and the amount you may receive will depend on the severity of your situation and the laws in your state.

No Win, No Fee Medical Negligence Claims

We understand how daunting it can feel to pursue legal action, especially with costs involved. That’s why we offer a 'no win, no fee' policy. This means you won’t pay any legal fees unless we win your case.

The Process for Making a Claim

1. Get in touch

Start by sharing your story with us. We’re here to listen and our experienced lawyers will review your case and offer expert advice on your options.

2. We’ll prepare your claim

We handle the legal process for you, keeping you informed throughout and discussing any fees that may apply.

3. Process payment

If your claim is successful, we’ll ensure your compensation is processed quickly once damages are awarded.

How Can Birth Trauma Law Help?

At Birth Trauma Law, we specialise in medical negligence during pregnancy and birth. With our expertise and expert medical evidence, we'll fight for compensation and emotional support.

Unsure about the legal process? Our FAQ section has answers.

Contact us for a free consultation if you suspect medical negligence. We're here to listen, guide and fight for justice.

Frequently Asked Questions

Can I make a claim if my child is injured during birth?

Yes, if your child suffered an injury due to medical negligence during birth, you may be entitled to make a claim.

How do I know if the injury was due to negligence or a natural complication?

We’ll work with medical experts to carefully review your case and determine whether negligence was involved.

What is a wrongful birth claim?

A wrongful birth claim is when a child is born with a condition that should have been detected or prevented during pregnancy.

How do I prove negligence during childbirth?

Proving negligence requires expert medical testimony and a thorough review of the care you received. Our team will guide you in gathering the necessary evidence.

Failure to Diagnose in Utero: What It Means for You and Your Baby

During pregnancy, parents rely on doctors to monitor the health of both mother and baby. But when something critical goes undetected, it can lead to severe, life-altering conditions. Missed diagnoses can result in birth defects or developmental delays. Though overwhelming, understanding what went wrong—and what steps to take—can help you make informed decisions.

What Is Failure to Diagnose in Utero?

Failure to diagnose in utero happens when a healthcare provider doesn’t detect a condition that should have been identified during pregnancy. These undiagnosed conditions can lead to serious health issues for the baby and place emotional and financial strain on the family.

In some cases, missed diagnoses may give rise to wrongful birth claims, which occur when parents argue that had they been properly informed about their baby’s condition, they would have made different choices regarding the pregnancy. Understanding causation in medical negligence is critical when determining if a missed diagnosis led to harm.

Common Examples of Failure to Diagnose in Utero

1. Failure to Diagnose Brain Abnormalities

Some conditions, like agenesis of the corpus callosum (when the brain’s hemispheres don’t connect) or absent septum pellucidum (a missing membrane), can cause developmental delays. Early detection through scans is crucial for planning early interventions.

2. Failure to Diagnose Fetal Distress and Cerebral Palsy

If a baby doesn’t get enough oxygen during labour, it can result in hypoxia (lack of oxygen) or ischemia (restricted blood flow). These issues can cause severe brain damage, leading to cerebral palsy, a condition affecting movement and muscle control. Missed fetal distress can mean preventable disabilities—a breach of the healthcare provider’s duty of care.

3. Failure to Diagnose Fetal Growth Restriction (FGR)

Fetal Growth Restriction (FGR) when a baby doesn’t grow at the expected rate. It can lead to complications like low birth weight and developmental delays. Regular ultrasounds usually detect FGR. When FGR is missed, it may be considered negligence if it results in preventable complications.

4. Failure to Diagnose Down Syndrome (Trisomy 21)

Down Syndrome can be detected through prenatal tests like nuchal translucency scans or amniocentesis. Early detection allows parents to plan for their child’s specific needs, such as managing heart defects or intellectual disabilities. Missing this diagnosis denies families the chance to make informed decisions and may lead to significant economic loss.

5. Failure to Diagnose Birth Defects

Detecting birth defects, such as spina bifida or heart defects, is vital. Routine tests like ultrasounds and blood screenings can catch these early, allowing for better management after birth.

6. Failure to Diagnose Global Developmental Delay

Global developmental delay refers to delays in two or more areas of development, such as motor skills or speech. Early diagnosis helps families access therapies that support the child's growth.

7. Failure to Diagnose Premature Labour

Premature labour, when contractions start before 37 weeks, can lead to health risks for the baby. If doctors miss the signs and send the mother home, preventable complications may arise.

Other Common Failures to Diagnose

Explore our blog for more insights into medical negligence and related topics.

Taking Legal Action for Failure to Diagnose in Utero

When a healthcare provider fails to diagnose a serious condition in utero, the family may be entitled to damages. These damages aim to provide financial compensation for the hardships caused by the failure to diagnose.

Damages in failure to diagnose can include compensation for:

Understanding damages in medical negligence can help you evaluate your legal claim.

Steps to Take If You Suspect a Failure to Diagnose

1. Request Your Medical Records

These records will help you understand whether a diagnosis was missed.

2. Consult a Birth Injury Lawyer

A lawyer can review your case, confirm if negligence occurred and guide you through seeking compensation. They can also help you calculate gratuitous care and pain and suffering.

How We Can Help

At Birth Trauma Law, we specialise in handling medical negligence claims related to missed diagnoses during pregnancy. Our team understands the complexities of these cases and is dedicated to securing the compensation you deserve for your child’s care.

With our no-win, no-fee service, you don’t have to worry about legal costs unless we successfully win your case. We’ll work tirelessly to help you hold the responsible parties accountable and ensure your family receives the financial support needed for your child’s medical care and long-term well-being.

Contact Us Today

If your baby was affected by a failure to diagnose during pregnancy, you may be entitled to compensation for medical expenses, ongoing care and emotional damages. Contact us today to discuss your case and learn how we can help you seek justice for your family.

For more information, visit our FAQs or explore additional resources on Birth Trauma Law.

Common Birth Trauma Examples and Causes

Childbirth is a profound, life-changing experience. But it doesn’t always go as planned. Sometimes, complications arise during delivery, leading to birth trauma for both mother and baby.

 
With appropriate medical care and interventions, most injuries can be prevented. That’s why it’s important to understand the common examples of birth trauma and the factors that contribute to them. Recognising these risks helps you advocate for the care you deserve.

 
Let’s take a closer look at these scenarios and what can lead to such distressing outcomes.

Examples of Birth Trauma

1. Episiotomy Performed by Ambulance

2. Incorrectly Performed Episiotomy

Even within the safe confines of a hospital, an episiotomy can go wrong. A poorly executed cut can extend far beyond the intended incision, leading to severe perineal tears. A cut at the wrong angle can also lead to devastating long-term problems.

These tears aren’t minor. They can damage the muscles controlling the bladder and bowels, leading to incontinence and significant pain. Recovery is often long and difficult.

 
Despite extensive surgical repair, the consequences can be lifelong. Chronic pain during intercourse, psychological trauma, and pelvic organ prolapse are just some of the potential outcomes. The physical and emotional toll of such a medical error can have a devastating impact on a woman's quality of life.

3. Failure to Offer a Caesarean Section

A Caesarean section (C-section) isn’t just another option. Sometimes, it’s the only safe choice. But what happens when healthcare providers fail to offer a C-section when it’s desperately needed?

Prolonged labour can lead to maternal exhaustion, and even more critically, the baby may suffer from a lack of oxygen—fetal hypoxia. This condition can result in brain injuries that cause lifelong disabilities, including cerebral palsy.

The mother, too, may endure severe tearing or haemorrhaging. This leads to further medical interventions and a prolonged, painful recovery.

4. Forceps Injury to Mother

Forceps, when used correctly, can assist in a difficult delivery. But if misused, they can cause significant harm.

For the mother, this can mean severe vaginal or cervical tears. The injuries can be extensive. Damage to the pelvic floor muscles and injuries to the bladder or rectum are common. These injuries often require surgical repair and can lead to long-term complications such as incontinence, pelvic organ prolapse and chronic pain.

 
Physical trauma is often accompanied by emotional distress. Fear and anxiety about future pregnancies can linger long after the initial injury.

5. Forceps Injury to Baby

The use of forceps doesn’t just pose risks to the mother. It can seriously injure the baby as well.

A misjudged move can cause serious damage. If applied incorrectly or with too much force, forceps can cause head injuries, including skull fractures, facial nerve damage, and even brain injuries. These injuries can have lifelong consequences, ranging from developmental delays to cognitive impairments and physical disabilities.

 
A baby who suffers facial nerve damage, for example, may experience temporary or permanent facial paralysis. This affects their ability to eat, speak, or express emotions. Brain injuries, depending on their severity, can lead to conditions like cerebral palsy, requiring ongoing medical care and therapy throughout the child’s life.

6. Brain Injury to Baby During Delivery

Brain injuries are among the most severe forms of birth trauma. They often result from a lack of oxygen during delivery.

When a baby’s brain is deprived of oxygen—a condition known as hypoxia—the results can be catastrophic. The damage is often irreversible.

 
Hypoxia can lead to neurological disorders such as cerebral palsy, epilepsy, and developmental delays. These conditions often require extensive medical care, therapy and special education. The emotional and financial burden on the family can be overwhelming as they seek to provide the best possible care for their child.

7. Oxygen Not Available for Baby at Birth

The moments immediately following birth are critical. If oxygen isn’t available, the consequences can be dire.

Oxygen deprivation (hypoxia) at birth can lead to brain damage. This can result in conditions such as hypoxic-ischemic encephalopathy (HIE).

Babies who suffer from HIE may face lifelong challenges, including motor skill impairments, cognitive deficits, and, in severe cases, death.

 
The emotional toll on the family is immense. They grapple with the reality of their child’s condition and the potential need for lifelong care. It’s a heartbreaking situation that could have been prevented with proper care and attention.

Addressing Medical Negligence in Birth Trauma

Birth trauma can leave deep and lasting scars—physical, emotional, and psychological. The impact often reaches far beyond the delivery room, touching families for years to come.

It’s important to remember that many of these injuries could have been prevented with proper care. Recognising the signs of negligence is crucial, but taking action is equally vital. Legal intervention not only helps secure justice but also provides the support necessary for recovery and healing.

Seek Legal Advice

Unsure about the legal process or what to expect from your case? Our FAQ section is designed to provide clear answers to your most pressing questions.

 
If you suspect that birth trauma in your family was the result of medical negligence, don’t hesitate to reach out. Contact us for a free consultation—because we’re here to listen, guide, and fight for the justice you deserve.

What Is Birth Trauma? Types, Symptoms, and Treatments

While many mothers experience childbirth as a positive event, others endure severe physical pain and psychological trauma during delivery—this is known as birth trauma.

If you find yourself in this situation, you may be wondering what birth trauma truly entails.

What Is Birth Trauma?

Birth trauma refers to the physical, psychological, and emotional distress experienced during or after childbirth. It can have lasting impacts on both you and your child, including physical injuries, chronic pain, anxiety, PTSD and strained relationships.

Recognising and addressing birth trauma is essential, especially when it results from medical negligence. At Birth Trauma Law, we are dedicated to protecting your rights. This article will help you understand birth trauma, the types of injuries involved, and guide you through the legal support available.

Symptoms of Birth Trauma

Physical Pain

You may experience chronic pain, unhealed wounds and mobility difficulties that disrupt your daily life.

Emotional Toll

Feelings of agitation, fear, or overwhelm are common, along with anxiety symptoms like increased heart rate, palpitations and restlessness.

Psychological Stress

You might encounter blocked memories, flashbacks, heightened alertness and recurring nightmares, which can contribute to long-term mental health challenges.

Relational Strain

Birth trauma can strain your relationships, making it difficult to bond with your baby or leading to fear of sexual intimacy.

If these symptoms persist for more than three months, it's important to seek professional help, as they may indicate postpartum post-traumatic stress disorder (PTSD).

Types of Birth Trauma

Birth trauma can be broadly categorised into two main areas: maternal birth injuries and newborn injuries.

Maternal Birth Trauma

Maternal birth injuries can significantly impact the physical health, mental well-being, and overall quality of life of the mother. Here are some common injuries mothers may experience.

1. Perineal Tears

Perineal tears occur when the area between the anus and vulva tears during childbirth. The severity of these tears can vary, and some may require surgical intervention. If left untreated, they can lead to chronic pain, urinary incontinence, and loss of sexual drive.

2. Pudendal Nerve Damage

The pudendal nerve controls sensation and movement in the pelvic area. Damage during childbirth can result in loss of sensation, faecal incontinence, and sexual dysfunction. In severe cases, it can cause pudendal neuralgia, a painful nerve condition affecting the genitals, bottom, or pelvic region.

3. Pelvic Floor Disorder

Childbirth can weaken or injure the pelvic floor muscles, which support your urinary system and reproductive organs. Damage to these muscles can lead to issues with bladder and bowel control.

4. Pelvic Organ Prolapse (POP)

POP occurs when the muscles and ligaments supporting your pelvic organs are weakened or damaged, causing organs like the bladder, uterus, or rectum to drop into or out of the vagina. This condition can also cause discomfort during urinary and bowel functions.

5. Infections

Infections can arise during or after childbirth due to improper or unhygienic medical practices. If not treated promptly, these infections can lead to long-term health problems such as pneumonia or urinary tract infections.

6. Bladder Damage and Incontinence

Bladder damage during childbirth can result in incontinence or urine leakage. This condition can be distressing and may require specialised treatment to manage effectively.

7. Pelvic Fractures

Childbirth can sometimes cause fractures in the pelvic bones, including the pubic bone, coccyx, or sacrum. These fractures can be painful, requiring time to heal and potentially impacting your mobility and daily activities.

8. Caesarean Wounds

Complications from a caesarean section can include wound breakdown (dehiscence) and infections. Prompt medical attention is essential to prevent these issues from worsening.

9. Uterine Rupture

A rare but serious condition, uterine rupture occurs when the uterus tears during childbirth. This requires emergency surgery to save both you and your baby.

10. Postpartum Haemorrhage (PPH)

PPH is excessive bleeding that occurs during or after childbirth. This serious condition demands immediate treatment to prevent life-threatening complications such as rapid blood loss, low blood pressure, and organ damage.

11. Other Injuries

Other potential injuries during childbirth include wound breakdown, hysterectomy (removal of the uterus), and secondary postpartum haemorrhage (excessive bleeding between 24 hours and 12 weeks after childbirth). Each condition requires specific medical care to ensure proper recovery.

Newborn Birth Trauma

Birth trauma can significantly impact newborns, potentially leading to developmental issues. Here are some common injuries children might experience.

1. Bruising and Swelling

Newborns may develop bruising on their face or scalp due to the pressure of passing through the birth canal. The use of forceps (surgical tongs) can also cause temporary bruises on the baby’s skin. Additionally, your child may experience caput succedaneum (scalp swelling), which typically resolves within a few days.

2. Cephalohematoma

Cephalohematoma occurs when blood vessels in the scalp burst due to pressure on the baby’s head, forming a soft bulge that hardens over time as blood accumulates. This condition often arises during prolonged labour.

3. Fractures

The baby’s clavicle (collarbone) is particularly vulnerable to fractures during childbirth. In some cases, a baby may also suffer fractures to the upper arm or ribs during a difficult delivery. These injuries can be painful and may take time to heal.

4. Nerve Damage

Nerve injuries can impair a child's mobility and sensation.

5. Brain Injuries

Brain damage in infants can result from factors such as oxygen deprivation, physical trauma, or infections. These injuries may lead to lifelong challenges, including developmental delays, physical disabilities, cognitive impairments, and neurological disorders.

6. Brain Bleeding

Brain bleeding, or intraventricular haemorrhage (IVH), is more common in premature newborns and can affect their neurological development. It occurs when blood vessels in the brain rupture during delivery.

7. Perinatal Asphyxia

Perinatal asphyxia, also known as oxygen deprivation, is a serious condition in which the baby does not receive enough oxygen during birth. This can lead to complications such as loss of consciousness, respiratory distress, or even heart failure.

Treatments for Birth Trauma

Addressing birth trauma involves both physical and psychological care. It is essential to seek medical treatment promptly to prevent complications and start your recovery.

Physical Rehabilitation

If you have chronic physical injuries, rehabilitation therapies, such as physiotherapy, are vital for restoring function and reducing pain. This involves pelvic floor exercises, postnatal yoga and other specialised treatments.

Counselling and Therapy

Psychological support is essential in managing the emotional impact of birth trauma. Engaging with a therapist can help you process your hurts and develop effective coping strategies.

Medical Treatment

Depending on how severe your birth trauma is, medical interventions such as surgery, pain management, or ongoing specialist care are necessary. Adhering to your healthcare provider’s recommendations is important to ensuring the best possible outcome for your health.

Support System

It is crucial for your recovery to have a strong support network, including your family, friends, and professionals. Seek assistance when needed. Participation in support groups can also offer you a sense of community and shared understanding.

How Can Birth Trauma Law Help?

At Birth Trauma Law, we understand how deeply birth trauma affects you and your child.

Our birth trauma lawyers don’t just offer legal expertise but also support and guidance during this challenging time.

We are dedicated to helping you secure the compensation you deserve and holding negligent parties accountable. If you have any questions, our FAQ page offers clear answers to common concerns.

The Seven Deadly Types Of Medical Negligence And The Impact They Have On Patients.

This article examines real world examples of real world medical treatment gone really wrong.

It is designed to assist victims of medical negligence focus their complaints so that they can be resolved faster.

When you know what went wrong, you can start to get it fixed.

Like we explained in our last article, to claim against something you need to tick off 3 key criteria:

1. A breach of duty of care,
2. That the breach caused the adverse outcome, and 
3. The patient experienced damages.

And the first criteria, the first hurdle, can be one of the hardest to overcome.

At least in medical negligence.

See, a common example of duty of care is driving a car. Everyone has a duty to drive carefully, so they do not injure other road users or pedestrians.

The question with medical negligence, though, is just how much care are they required to exercise?

For a road user, it’s very easy.

The rules of ‘care’ are written down – usually spelled out in the road rules.

But in medical negligence, there are no such clearly defined rules. This means the line between negligence and 'it's not my responsibility' becomes blurry.

In situations where there are no strict outlines, like medical services, the law simply outlines that a practitioner must take 'reasonable' care to ensure patient safety. 

This can come in the form of warning a patient of dangers. Informing them of test results. Performing operations to a high standard, etc.

But how must their warnings be given? How timely must their results be communicated? What operating procedures must be followed?

Unfortunately there’s no precise answer.

The argument will always revolve around whether the steps taken by the treatment provider qualify as ‘reasonable’.

This can be hard to determine by your average person.  As lawyers we tend to categorise medical mistreatment into seven main categories.

Let's call them the categories of 'unreasonable care'.

By going through all of the categories, it helps clients identify the main breach, and perhaps even a number of secondary breaches.

This is critically important, as these 'secondary' breaches often highlight the lack of system competence, as well as the lack of an individuals competence.

So, what are these seven categories?

The 7 main ways the system can let you down...

1. Medical Misdiagnosis;
2. Medical Surgical Negligence;
3. Cosmetic Surgical Negligence;
4. Prescription and Medication Negligence;
5. Pregnancy and Birthcare Negligence;
6. Failure To Warn of Risks;
7. Failure To Follow Up.

Just what they are and how they can affect someone are outlined below.

And, if you want to take it one step further, you can find out if you've been a victim of one of these by asking yourself the questions under each section as you go. 

To make it easier, we've divided each of these deadly types of negligence into sections:

1. What the type of negligence is;
2. What the common impacts are;
3. An example;
4. A checklist for you to assess your own situation.

1.0 Medical Misdiagnosis

If you answered ‘yes’ to any of these, then you could have been a victim of medical misdiagnosis.

As we'll explain in a later article, medical negligence claims are a ticking time bomb... one that, if left too late, will leave you with nothing. 

To ensure you don't miss out, you should contact an experienced medical negligence lawyer immediately to get your rights protected.

2.0 Surgical Negligence

If you answered‘yes’ to any of these, then you could have been a victim of surgical negligence.

As we'll explain in a later article, medical negligence claims are a ticking time bomb... one that, if left too late, will leave you with nothing. 

To ensure you don't miss out, you should contact an experienced medical negligence lawyer immediately to get your rights protected.

3.0 Cosmetic Negligence

If you answered ‘yes’ to any of these, then you could have been a victim of surgical negligence.

As we'll explain in a later article, medical negligence claims are a ticking time bomb... one that, if left too late, will leave you with nothing. 

To ensure you don't miss out, you should contact an experienced medical negligence lawyer immediately to get your rights protected.

4.0 Prescription and Medication Negligence

If you answered ‘yes’ to any of these, then you could have been a victim of surgical negligence.

As we'll explain in a later article, medical negligence claims are a ticking time bomb... one that, if left too late, will leave you with nothing. 

To ensure you don't miss out, you should contact an experienced medical negligence lawyer immediately to get your rights protected.

The Tests For Proving A Doctor Was Negligent.

This article reveals the two legal tests to proving a medical practitioner caused you pain and suffering.

These two tests are vital for legally countering the practitioners denial.

In fact, these two tests are used every single day by professional medical negligence lawyers around the country.

And now you can too.

This article is designed to assist victims of medical negligence focus their complaints so that they can be resolved faster.

The faster you establish the doctor's liability, the faster you will receive compensation, and begin to build a new life.

But to get compensated, you need to fulfill 3 key criteria:

1. A breach of duty of care,
2. That the breach caused the adverse outcome, and 
3. 3The patient experienced damages.

Our previous article covered duty of care. 

This article will cover causation, and how to be sure your doctor caused your injuries.

Proving The Doctor Caused The Harm

It can seem easy enough to say the practitioner breached their duty of care, and there are plenty of instances outlined in our second article that describe common occurrences.

Proving that it caused the adverse outcome, on the other hand, can be incredibly difficult to do.

For example, a patient can't claim for a sore foot if the medical negligence occurred on their stomach and the injury was completely unrelated.

The law goes through a very stringent test to calculate whether the medical practitioner's carelessness was the cause of the injury.

Proving this aspect of the claim is called 'establishing causation'.

To determine causation, the requires you to do two things:

1. Establish how the injury came about; and
2. Establish whether or not it is within the practitioner's scope of liability to prevent the injury.

The first part of establishing causation is establishing that the practitioner's carelessness (breach of duty of care) was an undeniable contributor to the patient's injury (harmful outcome).

To assess whether or not it contributed to the outcome, the law questions what would've happened if the breach hadn't taken place. 

This test provides the necessary connection between a negligent act and the injury. 

So would the injury have taken place without the negligence (carelessness)?

The test used by lawyers for this is commonly referred to as the 'but for' test. 

To use the but-for test, you need to apply it negatively to the situation. You need to ask whether the injury would not have occurred 'but for' a certain event - in this case, the breach of duty of care, or the medical practitioner's carelessness. 

To break this down, let's look at a simple example.

Bella had an ice cream cone and dropped it. Kayla ran past and slipped on the melting puddle of ice cream, injuring herself as she fell. 

To apply the but-for test, you would test if the following statement is true or false: 

Which, in essence, is true.

It is unlikely that Kayla would have slipped without anything to cause her to slip.  

This means Bella's dropped ice cream was an undeniable contributor to Kayla's fall, and her subsequent injuries. 

Another way to look at the 'but-for' test, is to understand that you are simply asking:

"But for the existence of X, would Y have occurred?"

And if the answer is yes, then X has contributed to Y. 

But even once you've established that the negligence was a contributor of the outcome, you need to consider whether is it reasonably within their 'scope of liability' to be held accountable - we'll explain that one next. 

And if it's clear enough, it has been an 'undeniable contributor'. 

2. Proving it's within their scope of liability

The second step to proving causation, is proving whether or not the practitioner should be held liable for those mistakes. 

This is a normative approach.

Being a normative question means it is simply commonsense. 

But is it really that simple?

Not quite.

Commonsense is a subjective evaluation, meaning what seems reasonable to me mightn't seem reasonable to you or the next person.

To make it more objective we can assess the foreseeable risks associated with the activity. 

If it is considered a foreseeable risk, then it is generally within a person's scope of liability - or in other words, their responsibility.

For example, a driver who travels down the wrong side of the road and causes a crash can be considered to be liable for this. That's because a crash is a foreseeable risk of travelling on the wrong side of the road. 

On the other hand, a mother who takes her child on a faulty roller-coaster that it causes injury cannot be held liable for the injury. Why? Well, despite being a foreseeable risk, there is also an assumption that the track would be properly maintained.

Simply put, it isn't the mother's responsibility to maintain the track - it's the theme park owner's. This means it's within their (the theme park owner's) scope of liability to consider foreseeable risks.  

When broken down, it looks complicated. But you'll notice it really is just common sense.

When you consider Bella and Kayla you could ask:

Most people would say yes. 

But sometimes things can be complicated. And whilst these a pretty obvious examples, medical negligence can be a different story.

It can be a highly complex area.

Understanding an obstetrician's scope of liability (what they are responsible for) versus midwife's scope of liability. 

Understanding the qualifications (and subsequent scope of liability) a psychologist has versus the scope of liability a psychiatrist has.

Understanding when responsibility (scope of liability) passes from a nurse to a doctor to a consultant.

It can be hard to apply 'commonsense' to something that isn't exactly 'common knowledge'.

In fact, it can be nearly impossible. 

For that reason, we've provided two quick, simplified questions you can ask yourself to try to establish whether the medical practitioner caused your accident, and whether or not they should be held liable.

If you answered no to the first question, then commonsense might say your medical practitioner was a direct cause of your injury. 

If you answered yes to the second question, then commonsense might say it was their responsibility - or within their scope of liability. 

In this situation, it is best to get a second opinion from an experienced medical negligence lawyer.

Without causation, the medical treatment is not responsible for the losses you have suffered.  There is no proof of damages. 

And damages is where the money lies.

That's because damages quantify - ie. give you a dollar figure - the harm caused. 

In our next article we will take a deeper dive into damages, and give some actionable steps you can take to start quantifying your damages.

This will give you a practical way to evaluate your potential to bring a claim against a medical treatment provider.

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What are the Damages Covered in Medical Negligence Claims?

So far, this series has been about medical negligence.

But now, it's going to focus on quantifying the financial impact of this negligence.

This financial impact is often referred to as “damages” or "compensation".

And, simply put, damages are the difference between the position of a person before the incident and the position of the person after the incident.

In medical negligence, we divide the impacts into four main quantifiable areas called ‘heads of damage’.

The main heads of damage we will discuss are:

1. Past and future economic loss;
2. Past and future gratuitous care;
3. Pain and suffering;
4. Past and future out-of-pocket expenses.

These heads of damage cover a vast array of costs (or loss of earnings) incurred by a victim of medical negligence. 

Things such as an inability to return to work, wages for the family members who care for you, monetizing your loss of enjoyment in life, immediate and future medical expenses - the list goes on.

These heads of damage are what makes up your total compensation amount from an insurer. 

And, since everyone's number 1 question after medical negligence is 'will a claim be worth it?', we've created a 5-part series and downloadable workbook for you to quantify all four heads of damage, all on your own. 

That way you can know what can be covered, and the extent to which it can be covered.

Or, in other words, you can know the potential compensation payout you'd receive for your medical negligence. 

Knowing your potential compensation is critical for determining how to approach holding your doctor accountable. That's because there're two ways you can hold a doctor accountable, and it hinges on how much your claim is worth. 

But why does it depend on that? And why does it differ to other negligence claims like car accidents? Why do I have to have such high damages when I didn't do anything wrong? After all, the doctor was negligent regardless of my payout - right?

Well, technically, that's right. 

But there's one unique aspect of medical negligence claims that make your damages calculation vital...

It's time to call in the professionals.

You might’ve identified a breach of duty of care after our first article.

But whilst you might think your doctor has breached, the judge needs more than just your word or the word of a lawyer to believe the practitioner was at fault.

And that's because medical treatment is not a lay person's or lawyer's area of expertise. 

Most of the public have limited medical knowledge. They don’t know if a medical procedure is right or wrong.

What you need as a claimant is another medical practitioner to agree with you, saying that the treating doctor (or system) got it wrong.

And that's where things can get expensive.

That's because the majority of doctors don’t want to criticise the performance of their peers. Not in public. And certainly not in the courtroom.

The band of brothers (and sisters) closes very tightly around itself when one of their own stand accused of sub-standard, careless, or reckless treatment.

To find such a doctor willing to testify against his colleague can be like finding a needle in a haystack.

As a result, it is common practice to ask medical professionals from interstate and overseas to testify.

The willingness of these ‘out-of-state’ professionals to testify is sweetened by them being paid a fee to write a report.

And these reports cost anywhere from between $3,000 to $20,000.

And it doesn’t end there.

In a lot of medical negligence cases, there will be several doctors, nurses, and medical staff “in the gun.” This can require several reports from several sources.

For example, Doug, a carpenter, has an operation to fix a broken bone. It isn’t set correctly, and the wound becomes infected. Eventually, he has his leg amputated.

And as the requirement for these reports continues to pile up, it becomes apparent that the financial losses suffered by the negligence need to be significant enough to outweigh the costs of these reports.

At the very least, we need to get a report from an orthopedic surgeon to suggest the first operation had gone wrong. Then perhaps a report from a general surgeon about the actual operation. Maybe a report from how the infected wound should have been treated. And so on.

4 reports at $5,000-$10,000 each.

Doug will now be $20,000-$50,000 out-of-pocket if he wants to prove his doctor breached a duty of care.

You will then need independent opinions from other specialists to suggest Doug can never return to work.

That might include an occupational therapist (OT). This might include a psych assessment.

Another $10,000.

As a result, you need about 150,000 reasons before a lawyer will take on a medical negligence claim.

In other words, around $150,000 in damages (financial losses) to justify spending $50,000 on expert opinion reports.

Naturally, $150,000 sounds like a lot of money.

But due to the impact that medical mistakes can have on a patient’s life, this level of damages is more common than not.

This $150,000 is what we, as compensation lawyers, call the ‘quantum threshold’.

The quantum threshold will vary from firm to firm and very much depends on how ‘easy’ the breach can be proved. If the treating doctor admits he made a mistake (accepts liability), then that figure of $150,000 can be drastically reduced.

To help you work out if you reach the quantum threshold, and to see what amount of compensation you could be entitled to, we’ve created a step-by-step process for calculating your losses.

Your goal is to see if you have a viable medical negligence claim – one that will allow you to sue the doctor or hospital with confidence.

And that viability is determined by hitting the $150,000 threshold.

The journey to $150,000 might be shorter than you think.

When you start breaking down the impacts of medical negligence and quantifying the outcomes, you’d be surprised to find how easy it is to reach the quantum threshold of $150,000.

From every-day tasks to rehabilitation costs to lost employment opportunities, every aspect of your life after the negligence is considered. You can even quantify something as simple as the inability to put on a shirt.

By using this bite-sized approach (and considering everything), we can determine a claim’s viability quickly and easily.

It’s these bite-sized chunks of change that make up a much larger picture, falling under the four blanket ‘heads of damage’ listed above.

For the purpose of getting you to the $150,000 quicker, we’re going to focus on these heads of damage in order of their general worth, from largest to smallest.

We'll be working through the stages in the following order:

And in each of these sections will be a step-by-step guide to calculating your own losses, allowing you to keep track of where your dollar figure is up to.

To get the most out of this article, we recommend you download the ‘Damages Calculator Workbook’.

This is based on the actual schedule of damages that real lawyers use to negotiate compensation every day.

All you need to do is pull up a calculator, follow along, and keep a running tally on your Schedule of Damages until you reach that $150,000.

One last thing before we get started.

Throughout this series of articles, we’re going to refer to ‘Vincent’s Litigation Tables’ quite a bit.

Firstly, don’t be intimidated by the name.

‘Vincent’s’ is an Australian accounting firm that prepares these tables for lawyers. The lawyers then use these tables to calculate future projections.

Since the dollar in 1980 is not worth what it is today, and the dollar today is not what it will be worth in 2040, Vincent’s created these tables to account for that.

Some of the tables also outline the average life expectancy for lawyers to base calculations off, tax rates, weekly average earnings, etc. But don’t worry, most of these won’t be used.

Whenever we do use a table, we will break it down for you bit-by-bit, telling you exactly what you need to use and when.

All you need to do is follow the examples.

Quantifying your contribution to the workforce.

It’s not uncommon that a victim of medical negligence will experience difficulties in trying to return to work in any capacity, let alone the same job.

The strain of an injury, or the mental trauma inflicted, can often cause the victim to lose wages, now, and into the future.

The past and future economic loss head of damage aims to protect the victim from a loss of earnings. It bridges the gap between what they used to earn, what they earn now, and what they will earn 20 years into the future.

More specifically, it can cover things like:

These are the types of things not accounted for in most government and private insurance
schemes.

Schemes like the NDIS or Private Accident Insurance.

These schemes will pay the immediate out-of- pocket expenses, but not pay for loss of earnings.

The law will, as much as reasonably possible, try to put the injured person back into the position they most likely would’ve been in before the accident, which includes considering their future potential.

And just how you calculate these future losses can be a complicated exercise.

See, if you asked yourself 10, 15, 25 years ago where you’d be today, you’d probably have no idea.
But that’s precisely what this head of damage is asking you to do – predict every wage-earning movement from the date of the incident until the expected time of retirement.

It might seem impossible. But in just 15 minutes you will be able to do it.

Below we’re going to step you through the same process a lawyer would take to help you calculate your economic loss - considering your future first, and then the past.

Quantifying your Future Economic Loss

For the majority of claimants, future economic loss will be the most significant head of damage they receive. So whilst this section might seem confusing or complicated, it’s not that difficult if you follow a template.

All heads of damage after this will be an easier step towards the quantum threshold of $150,000.

Future Economic Loss

You should note this number on your own Schedule of Damages table to keep track of where you’re at. 

Future Loss of Superannuation

We’ve covered your losses up until retirement, but what about losses after retirement?

Expenses don’t just stop once you retire - if anything, they can get worse.

That’s why (in compensation), superannuation is accounted for, and quite easy to work out. To calculate future losses, we need to look at the future superannuation rate.

As of 2019, the rate of superannuation that an employer has to pay is 9.5% of your wages.

By 2025, this rate will increase to 12%.

For this reason, we will work off the 12% for calculating your future loss of superannuation.

Now that you have that, you can add it to your schedule of damages.

Quantifying your Past Economic Loss

Now that we’ve covered what you are predicted to lose in the future, let’s look at what you’ve already lost since the accident.

We call this period, between the accident and now, the ‘past’.

For this reason, calculating your past economic losses will be much easier than the previous
section - predicting the future losses.

You can now add this number to your schedule of damages.

Interest on Past Economic Loss

We can’t forget that there was a potential to earn interest on the past economic loss.

The law in QLD takes this into account, allowing you to be compensated for it. To work out what amount you should be compensated for, follow these steps:

You can now add this number to your schedule of damages.

Superannuation on Past Economic Loss

The final step in this head of damage is calculating your past loss of superannuation, much like we calculated your future loss.

To do this, we apply the same formula. However, we will use the current standard rate of 9.5% instead of the future 12%.

You should replace the 9.5% with the rate your employer has been paying if it’s higher than this base rate.

You can now add this number to your schedule of damages.

Putting it all together.

Now you can add this to your schedule of damages.

It’s recommended, at this point, to add up your damages so far to see if you’ve reached the
$150,000 quantum threshold.

Below is Sasha’s example.

By doing this, you can check if you can surpass the remainder of this workbook and start working out how you’re going to hold your doctor accountable.

If you haven’t passed the threshold yet, don’t worry. There are three more heads of damage to cover.

Let’s jump into our second head of damage - gratuitous care.

Monetising the care your family provides.

Now that we’ve calculated the biggest head of damage, we can move onto the second biggest – care.'

And don’t worry, this one’s easier.

Victims of medical negligence will often find themselves relying on relatives, partners, and other persons for care and assistance.

As opposed to commercially paid or hired help, this type of care is referred to as ‘gratuitous’ – or, free of charge.

But, the addition of this care can often have a heavy impact on the providers, taking time out of their social lives, work, and other day-to-day duties.

To compensate for this, the court offers an award for gratuitous care services.

This award is calculated with reference to the market (or commercial) cost of the services, with the extent of coverage stretching far and wide across common duties such as:

Day-to-day duties;

Personal duties;

Before we jump in, we wanted to cover off some important limitations, or criteria, that apply to gratuitous care payouts.

Now that you’ve checked your eligibility for gratuitous care, let’s jump into calculating it.

Quantifying your Future Gratuitous Care

Quantifying the future costs can often come with greater room for disagreement because, once again, you’re predicting the future.

Despite this, we’re going to do it before past care because it can often have a larger outcome - and we’re keeping that $150,000 in mind.

To predict the future as accurately as possible, you’ll need to have evidence from a range of medical professionals. They with their recommended care services and their expectations for how long you’ll require these services.

We recommend you get one (or multiple) of these assessments before starting this section. If that’s not possible, then not to worry! Do your best to predict.

Future Economic Loss

To start your calculation, you will need to:

You should note this number on your own Schedule of Damages table to keep track of where you’re at. 

Now that we’ve covered your future care costs, lets take a look at your past care.

Quantifying your Past Gratuitous Care

Now that we’ve quantified your future care costs – the significant costs – we can start quantifying the care you’ve already received.

And doing that isn’t too hard.

Putting it all together.

Now you can add this to your schedule of damages.

It’s recommended, at this point, to add up your damages so far to see if you’ve reached the $150,000 quantum threshold.

Below is Jess's example:

By doing this, you can check if you can surpass the remainder of this workbook and start working out how you’re going to hold your doctor accountable.

If you haven’t passed the threshold yet, don’t worry.

We’re about to take on our third most significant head of damage (from a quantum perspective) – monetising your future pain and suffering.