The NSW Parliament Select Committee on Birth
Trauma,1 launched in June 2023, is examining the
prevalence, causes and solutions to rates of birth trauma, which reportedly impact as many as one in
three women 2.
It received a record 4,000 submissions from the public, which
were largely individual testimonies from women who detailed a lack
of consent, inadequate pain relief and clinical incompetence. The
harms suffered have also been referred to as “obstetric
violence”. This article provides a background on the NSW Birth
Trauma Inquiry and discusses how a traumatic birth injury may
result in a medical negligence claim.
The Committee has already heard from Professor Hannah Dahlen who
co-authored a survey of more than 8000 Australian women in 2019,
which found that one in 10 reported obstetric
violence,3 which has been taken to refer to
preventable harm in the context of maternity care, including
feelings of dehumanisation, violation, and powerlessness
4.
The Committee continues to hear evidence from individuals who
have experienced birth trauma first-hand, with the most recent
hearing having been held at Wagga Wagga on 12 December 2023. During
this hearing, mothers detailed their experiences of birth trauma,
which consistently included lack of continuity of care and health
professionals not obtaining consent before administering drugs or
beginning medical procedures 5.
The Committee’s hearings are ongoing, and it is due to
report by mid-2024.
HCCC Complaint
Notably, the hearing follows a group of approximately 30 women
submitting a formal complaint to the Health Care Complaints
Commission in relation to maternity care they received at the Wagga
Wagga Base Hospital in NSW operated by the Murrumbidgee Local
Health District.6 The complaints, which included
allegations of inappropriate use of induction of labour, poor pain
management, human rights abuses and clinical incompetence led to an
HCCC investigation and were reportedly contributing factors to the
development of the present Inquiry 7.
Whilst the HCCC completed a report following its investigation,
which provided a number of recommendations to Wagga Wagga Base
Hospital, the report did not address individual complaints.
Potential Medical Negligence Claim as a result of traumatic
birth injury
Whilst the NSW Parliament Inquiry is reportedly the first
Inquiry of its kind to be held into birth trauma in any
jurisdiction,8 the experiences being heard by the
Committee are unfortunately not unique, as evidenced by the volume
of submissions received.
The traumas experienced in childbirth are not always avoidable,
even with the best medical care. However, in some situations, the
health practitioners involved may be found to have failed to take
reasonable care of a woman and/or her baby prior to, during or
after labour, which may lead to the woman and/or baby sustaining
injury.
Section 5O of the Civil Liability Act 2002 (NSW) sets
out the provisions that need to be applied and satisfied in order
for an individual to successfully bring a claim in negligence
against a medical professional or hospital.
The provisions of section 5O provide that a professional
won’t be found to be negligent if they ‘acted in a
manner that (at the time the service was provided) was widely
accepted in Australia by peer professional opinion as competent
professional practice’ 9. Whilst peer
professional opinion can vary and doesn’t need to be
universally accepted to be considered widely accepted
10, it cannot be relied upon if the court considers the
opinion is irrational 11. The negligence or otherwise of
a medical professional is determined on the basis of expert medical
evidence.
In circumstances where avoidable injury is suffered as a result
of negligent medical care, mothers may have access to a claim for
compensation, to assist them with any unexpected costs arising from
the adverse outcome.
Such costs may include:
- Non-economic loss (pain and suffering);
- Past and future economic loss;
- Past and future medical and related care expenses.
Footnotes
1 https://www.parliament.nsw.gov.au/committees/listofcommittees/Pages/committee-details.aspx?pk=318
2 https://www.abc.net.au/news/2023-09-05/nsw-birth-trauma-inquiry-day-one-me-too-moment-for-mothers/102812906
3 https://journals.sagepub.com/doi/10.1177/10778012221140138
4 Hazel Keedle , Warren Keedle, and Hannah G.
Dahlen , “Dehumanized, Violated, and Powerless: An Australian
Survey of Women’s Experiences of Obstetric Violence in the Past
5 Years” (2022) Violence Against Women
5 https://www.abc.net.au/news/2023-12-12/birth-trauma-inquiry-nsw-wagga-mothers-doctors-hospital-staff/103219684
6 https://www.abc.net.au/news/2023-06-07/wagga-wagga-base-hospital-hccc-investigation/102444994
7 https://www.abc.net.au/news/2023-09-03/investigation-birth-complaints-glossed-over-trauma-wagga-wagga/102804914
8 https://www.crikey.com.au/2023/12/18/birth-trauma-inquiry-obstetric-violence-wagga-wagga/
9 Section 5O(1)
10 Section 5O(3)-(4)
11 Section 5O(3)
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