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Home | Blog | A ‘Gap’ in Medical Negligence Law?

One of the tragic stories which emerged in the media in the last week was the death of a baby boy at Bankstown hospital. Shortly after birth, this baby boy was mistakenly given nitrous oxide instead of oxygen whilst in the neonatal resuscitation unit of the hospital and later died.

More cases of medical malpractice at the hospital

This is not the first serious incident to emerge from Bankstown hospital. It has since been revealed that a baby girl born in June was also given nitrous oxide shortly after birth. She now has brain damage and remains in a critical condition in hospital. It has also been revealed that a third newborn was left with long term health problems following a shortage of oxygen supply during resuscitation in 2014.

These incidents bring into question the actions of the hospital in failing to provide adequate and proper care to newborn infants. This is no doubt a reflection of a type of systemic failure within the hospital. Perhaps most importantly however, these incidents expose a ‘gap’ in the area of medical negligence law.

Under Australian law, the parents of a child who dies as a result of negligence can only recover damages if they can establish that they suffered a recognisable psychiatric illness. This means that in order to obtain compensation, parents must demonstrate that they suffer from a permanent psychiatric illness such as post traumatic stress disorder, an adjustment disorder, depression, anxiety or stress. They cannot recover damages for bereavement alone. Not only does this seem unfair, it is an extreme understatement of the suffering experienced by these parents.

When a newborn survives birth but suffers brain damage due to birth trauma caused by negligence, that child may receive a large sum of damages in recognition of ongoing medical expenses, care needed, loss of future earning capacity as well as for their pain and suffering. However, where a newborn dies at birth due to negligence, parents will need to demonstrate that they have suffered a psychiatric illness, therefore requiring them to somewhat re-live the experience. Even if established, the compensation they receive is relatively modest. Surely this needs to be addressed through better legal recourse.

At Turner Freeman Lawyers, we specialise in medical negligence claims. If you or someone you know has suffered from medical treatment which you believe was not appropriate, we encourage you to call 13 43 63 to speak with one of our medical law experts today.

Our NSW offices are in SydneyParramattaCampbelltownNewcastlePenrith, Wollongong.

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