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In 2005, Lee was involved in a tragic accident, which wasn't his fault. After years of delays, the TAC offered him $750,000 – then, we helped him to get a new offer of $1.1 million just two week later. That's an extra $350,000 in two weeks!
We Bring Together The Right Combination Of Experience, Knowledge And Sensitivity To Get Clients Compensation For Pregnancy And Birth Injury Claims.
Arguably the most traumatic and stressful area of compensation law, birth injury claims not only require the right mix of specialist skills and knowledge, but also a level of sensitivity for the persons involved.
The key focus for us in these cases is on exploring whether an error has occurred, and if it has, making sure we are best prepared to counter any defence raised by the insurance lawyers.
Taking into account the potential large damages that are available (due to the long term care that a child will need) these claims are usually vigorously defended and a great deal of time and investigation is needed to explain all the legal complications to anxious parents.
Common Birth Injuries That May Result In A Claim
Restricted Oxygen
Also called anoxia or hypoxia – along with trauma during the delivery process are among the most common causes of injuries in newborns. Oxygen deprivation at birth can have several causes. For example, complications could result in the infant being left in the birth canal too long or the umbilical cord could wrap around the baby’s neck, constricting airflow. Misuse of delivery tools such as forceps or vacuum may cause a traumatic injury, particularly if the child is in a breech position and must be repositioned.
Some of the most common and most disabling birth injuries include: Hypoxia or anoxia. Brain damage may result if the flow of oxygen to the brain is restricted. A partial loss of oxygen may cause a hypoxic injury, while total oxygen deprivation may result in an anoxic injury. Typically, the damage to the brain becomes more severe with the completeness and length of oxygen deprivation. Both hypoxia and anoxia may result in severe cognitive impairment. Hypoxic and anoxic injuries may also harm physical, psychological and other functions. While therapy may improve the condition of some injured victims, these injuries are often permanent.
Cerebral Palsy
This incurable condition permanently affects an injured child’s posture and ability to move and maintain balance. Trauma to the head or restricted oxygen during labour and delivery can cause cerebral palsy. Children who have cerebral palsy may be never be able to walk or take care of themselves when they grow up. The most severe cases may cause epilepsy (seizures), hearing or vision loss, or intellectual deficiencies.
Brachial Plexus Injuries
The brachial plexus consists of a bundle of nerves in the neck that connects to the arms, hands and shoulders. Damage to the brachial plexus may occur when too much pressure is applied to an infant’s head or neck during delivery. This type of injury can cause paralysis in the neck, shoulders, arms or hands, as well as loss of muscle control, strength and sensation. Erb’s palsy refers to damage to the upper nerves, while Klumpke’s palsy refers to damage in lower nerves. Infants who suffer injuries to the brachial plexus often need physical therapy and surgery to graft or transfer nerves or muscle to bypass paralyzed areas.
Spinal Cord Injuries
Damage to the spinal cord may result from excessive traction or rotation during delivery. Stillbirth or neonatal death may follow the most severe spinal cord injuries. If a newborn survives a spinal cord injury, the baby may experience paralysis, weakness and hypotonia (low muscle tone and strength). Often, spasticity similar to cerebral palsy will develop later.
Cervical Dystonia
Also called spasmodic torticollis, cervical dystonia results from an injury to the head, neck or shoulder during labour and delivery. The condition can cause muscles in the neck to contract and pull the head forward, backward or to the side. A painful and disabling injury, affected infants often need a lengthy physical therapy and medication. Multiple surgeries may be required to cut contracted nerves or muscles. Treatment of the most severe cases may involve deep brain stimulation, which involves surgical implantation of an electrode in the brain to interrupt the signals that cause twisting of the head.
Facial Paralysis
A baby’s facial nerve may be damaged when pressure is applied to the face in the delivery process. The child’s facial paralysis could improve in a matter of weeks if the nerve was only bruised. However, surgery may be required if the nerve was torn.
Other Injuries
Newborns may suffer a series of other injuries during the birth process, such as cuts, bruises lacerations, abrasions, haemorrhages and bone fractures.
Did Medical Negligence Cause The Injuries?
Many birth injuries didn’t have to happen. They could’ve been avoided if obstetric risk factors had been anticipated and recognised. Modern tools such as ultrasound machines and foetal monitors provide information that should allow an obstetrician to recognise that a vaginal delivery could be dangerous, allowing the doctor to opt for a Caesarian delivery instead.
Training for labour and delivery doctors and nurses emphasises the importance of monitoring the oxygen levels and other vital signs of both the mother and the baby during labour, delivery and neonatal care. Hospitals and other medical centres that provide obstetric care have certain procedures for how to treat a mother or baby who is showing signs of distress due to low oxygen or other problems. This protocol usually involves performing a C-section when there are certain indicators of a difficult delivery.
When doctors and nurses fail to follow proper procedures, fail to properly recognise and address complications or take too long to order a C-Section, serious birth injuries may result. These errors may amount to medical negligence.
When negligence results in serious birth injuries, compensation may be available through a medical negligence claim. This compensation could include money to pay for the family’s losses and the injured baby’s ongoing needs – including medical expenses, lost wages, pain, suffering and loss of enjoyment of life.
Why Choose Henry Carus + Associates?
Our birth injury lawyers will do everything we can within the law to obtain the maximum compensation payout for families who are faced with the often crippling, long-term costs of caring for a birth injured child.
Our 360° approach involves:
Gathering detailed statements from all involved.
Seeking advice from medical experts.
Following the normal process of any general common law medical negligence claim.
Focusing on the long term care needs of the child.
Negotiating a successful outcome based on the strength of the claim.
Birth Injury Compensation Claims
The birth of a child should be one of the most joyful moments of your life. But when the care provided by doctors, midwives, or hospital staff falls short and something goes wrong, the consequences can reshape your family’s future entirely.
We understand how devastating this is. Birth injury compensation claims are, without question, some of the most emotionally demanding cases in personal injury law. They require not just legal skill, but genuine care for the people involved and an unflinching commitment to getting the outcome families need and deserve.
At Henry Carus & Associates, our birth injury lawyershave been fighting these cases for families across Victoria for decades. We know this area of law deeply and won’t be outmanoeuvred.
Common Birth Injuries That May Give Rise to a Claim
Birth injuries range in severity, but many of the most serious ones are preventable. Under Australian law, medical practitioners have a duty of care to both the mother and the baby throughout pregnancy, labour, delivery, and the immediate postnatal period. When that duty is breached, both mother and child may have separate claims for compensation.
Injuries to the Baby
- Hypoxic-Ischaemic Encephalopathy (HIE)/Oxygen Deprivation: Among the most serious and preventable birth injuries, the resulting brain injury can be catastrophic.
- Cerebral Palsy: A lifelong neurological condition affecting movement, posture and muscle control. It can be caused by oxygen deprivation or direct trauma to the brain during labour.
- Brachial Plexus Injuries (Erb’s Palsy/Klumpke’s Palsy): Injury to the brachial plexus during delivery can cause partial or complete paralysis of the arm.
- Spinal Cord Injuries: The most severe cases result in stillbirth or neonatal death. Surviving infants may experience paralysis, hypotonia or spasticity. The consequences are often permanent.
- Skull Fractures and Intracranial Haemorrhage: Improper use of forceps or ventouse (vacuum) during assisted delivery can cause skull fractures or bleeding inside the brain.
- Facial Nerve Damage and Facial Paralysis: Pressure on the baby’s face during delivery can damage the facial nerve, causing temporary or permanent paralysis on one side of the face.
- Intrauterine Death: Where a baby dies from poor monitoring and delayed intervention
- Neonatal Death: Where a baby dies during labour or in the immediate postnatal period as a result of medical negligence.
Injuries to the Mother
- Perineal and Pelvic Floor Injuries: Perineal tears are serious injuries that can cause long-term bowel and bladder incontinence, pelvic organ prolapse and sexual dysfunction.
- Uterine Rupture: A life-threatening emergency in which the uterine wall tears during labour.
- Obstetric Fistula and Organ Damage: Abnormal connections between the bladder, vagina or rectum can cause chronic incontinence and require complex reconstructive surgery.
- Psychological and Psychiatric Injuries: A traumatic birth experience can cause clinically significant post-traumatic stress disorder (PTSD), depression and anxiety.
- Complications from Negligent Caesarean Delivery: A negligently performed caesarean can cause serious injury to mother, baby or both.
Who Can Make a Birth Injury Claim?
To have a valid birth injury compensation claim in Victoria, you need to demonstrate two things: that a medical practitioner owed you or your baby a duty of care, and that they breached that duty in a way that caused the injury. That second element is where most of these cases are contested.
Potential claimants include:
- Mothers injured physically or psychologically during labour, delivery or the postnatal period
- Children who suffered injury during birth as a result of obstetric negligence
- Parents or family members who have suffered a recognised psychiatric injury following the death or serious injury of a baby
Claims can be made against obstetricians, midwives, anaesthetists, hospital systems and other health professionals where their actions or inactions fell below the standard of care expected of a competent practitioner in the same circumstances.
Time Limits in Victoria – Including the Special Rule for Children
Time limits apply to all personal injury claims in Victoria and are strictly enforced. Missing a deadline can mean losing your right to claim entirely.
- Adults: Generally, three years from the date you knew or ought to have known about the injury and its connection to negligence.
- Children (under 18): The limitation period does not begin to run until the child turns 18. This means a claim can generally be brought up until the child’s 24th birthday – though the exact rules depend on the circumstances.
- The date-of-knowledge rule: For injuries that are not immediately apparent (such as cerebral palsy or developmental delays), the clock may not start running until the negligence is reasonably discoverable.
These rules are complex. Do not assume your time has passed without speaking to us. Our Melbourne birth injury lawyers offer a free initial assessment to determine where you stand.
What Compensation Can You Claim?
An important point many families don’t realise: you are not suing your doctor or midwife personally. Birth injury compensation claims are made against the insurer of the medical practitioner or hospital involved. The purpose of the claim is to ensure your family has the financial resources to cover the real, long-term cost of what happened.
Birth injury claims (particularly those involving children with lifelong disabilities) can involve very substantial sums, because of the decades of care and support that may be required.
Compensation categories typically include:
For the Injured Child
- Past and future medical treatment (surgeries, specialist appointments, medications, hospital stays)
- Rehabilitation costs (physiotherapy, occupational therapy, speech pathology, hydrotherapy and other therapies)
- Attendant care and support worker costs (personal care, supervision and assistance with daily living, potentially for the child’s entire life)
- Assistive technology and equipment (wheelchairs, communication devices, orthotics, home medical equipment)
- Home and vehicle modifications (ramps, hoists, accessible bathrooms, modified vehicles
- Education and specialist schooling costs)
- Loss of future earning capacity (compensation for the income the child would have earned if not for the injury)
- Pain and suffering / non-economic loss
For the Mother
- Past and future medical treatment related to the birth injury
- Rehabilitation and ongoing treatment for physical injuries
- Psychological treatment (counselling, psychiatry and medication for PTSD, depression and anxiety)
- Loss of income (wages lost during recovery, and future earning capacity if the injury affects return to work)
- Gratuitous care (where family members have provided care as a result of the injury
- Pain and suffering / non-economic loss)
The value of a birth injury compensation claim depends heavily on the nature and extent of the injuries, the likely prognosis and the lifetime care needs involved. Our birth injury malpractice lawyers work with medical experts, rehabilitation specialists and economists to build a detailed, evidence-based picture of your family’s needs both now and into the future.
The Birth Injury Claim Process
1. Initial Legal Consultation
The first step is speaking with a birth injury lawyer. This is your opportunity to explain what happened, ask questions, and get an honest assessment of whether you have a claim worth pursuing.
2. Obtaining Medical Records
Yourbirth trauma injury lawyer will request the complete obstetric and medical records from the treating hospital and practitioners. This includes CTG (fetal heart rate) traces, labour and delivery notes, theatre records, neonatal records, anaesthetic notes and any relevant radiology or imaging.
3. Independent Expert Medical Review
Birth injury claims are almost always won or lost on medical expert opinion, not legal argument alone. Your lawyer will engage independent specialists to review the records and provide written opinions on two critical questions: whether the standard of care was met, and whether any departure from that standard caused or contributed to the injury.
4. How Negligence Is Established
To succeed in a birth injury compensation claim, three elements must be proven:
- Duty of care – that the medical professional owed a duty to the patient. In a clinical setting, this is almost always straightforward.
- Breach of that duty – that the practitioner’s conduct fell below the standard expected of a competent professional in the same circumstances.
- Causation – that the breach caused or materially contributed to the injury. This is typically the most contested element in birth injury cases.
5. Lodging the Claim
Once the expert evidence is assembled, a formal claim is prepared and lodged with the insurer of the hospital or practitioner. The claim sets out the alleged negligence, the supporting evidence and the losses suffered. The insurer will respond with their own position, and from here the claim enters a negotiation phase.
6. Negotiation and Resolution
The majority of birth injury compensation claims resolve through negotiation rather than going to trial. Where an insurer refuses to make a fair offer, the matter can be taken to court. This is less common, but it does happen sometimes.
Birth injury claims typically take between three and five years to resolve due to the complexity involved.
Related Claims We Handle
Birth injury claims are a specialised subset of medical negligence law in Melbourne. Our team also handles the full range of medical negligence matters, including surgery negligence claims, car accident compensation and public liability claims. If you’re not sure which area applies to your situation, contact us and we’ll point you in the right direction.
Get Expert Support From Our Birth Injury Lawyers
Birth injury cases take years of work, deep expertise in medical evidence and lawyers who are personally invested in the outcome for your family. That is the commitment we make to every client.
HCA Lawyers has decades of experience in medical negligence and birth injury compensation claims across Victoria, operating on a no-win, no-fee basis. If you believe your child’s injury, or your own birth trauma, may have been caused by medical negligence, the most important step you can take right now is to get legal advice.
Call us today on 03 9001 1318, or use our free online enquiry form. Your first consultation is free and completely confidential.
Frequently Asked Questions
How do I know if my child’s birth injury was caused by negligence?
Not every difficult birth is a result of negligence, and not every birth injury is preventable. The test is whether the care provided fell below the standard a competent practitioner would have provided in the same circumstances. The only reliable way to know is to have your medical records reviewed by independent experts. Our Melbourne birth injury lawyers will arrange this as part of your initial claim assessment.
Can I still make a claim if my child is already several years old?
Yes, in most cases. In Victoria, the limitation period for children’s birth injury claims does not start until the child turns 18, meaning a claim can generally be brought up until their 24th birthday. There are exceptions, and the rules can be complex — particularly where the injury was not diagnosed immediately. We strongly recommend seeking legal advice sooner rather than later.
Will I have to take my doctor to court?
In most cases, no. Birth injury compensation claims are made against the insurer of the hospital or practitioner, and the majority resolve through negotiation well before any court date. That said, where an insurer refuses to offer a fair settlement, you may need to litigate. Having birth injury lawyers who are willing and capable of taking a matter to trial strengthens your negotiating position from the outset.
How much is a birth injury compensation claim worth?
There is no fixed figure. The value depends on the severity of the injury, the child’s prognosis, lifetime care costs, lost earning capacity and pain and suffering. Claims involving children with severe neurological injuries can be worth millions because the child will need care for decades. We work with medical experts, rehabilitation specialists and financial economists to build a thorough, evidence-based picture of your family’s needs before arriving at any figure.
Does no win, no fee really mean I pay nothing if we lose?
Yes. If we do not win your case, you do not pay our legal fees. There may be some costs in specific circumstances (such as fees for independent medical assessments), and we will discuss these with you transparently at the start.
