Not every poor outcome in maternity care is negligence. A claim generally requires an injury, care below the standard reasonably expected at the time, a causal link between that care and the injury, and identifiable loss. Each element needs independent evidence.
Antenatal care
Antenatal care involves screening, monitoring and planning. Legal questions may arise where significant results were not followed up, risk factors were not acted on, or a birth plan was not adapted to new information. The question is whether care matched what a competent practitioner would have done at that time, not what hindsight suggests.
Labour and delivery
Most concerns relate to labour: fetal monitoring, escalation, timing of intervention and assisted or surgical birth. Our separate guides examine fetal monitoring, delayed caesarean, shoulder dystocia and instrumental delivery. Clinical guidelines current at the time are relevant evidence, but departing from a guideline does not automatically mean negligence.
Newborn care
Care immediately after birth, including resuscitation, observation and recognition of problems such as infection or low blood sugar, can also be examined. Neonatal records often require a separate expert, such as a neonatologist, to assess.
Evidence
Claims usually turn on complete records and independent expert opinion. Experts consider both standard of care and causation, and these may require different specialists. Some conditions, such as cerebral palsy, have multiple possible causes, so causation evidence is especially important.
Losses for a child with lifelong needs can be substantial and are assessed separately. Interaction with the NDIS and Medicare compensation recovery may also need consideration.
- Antenatal records and test results
- Labour partogram, CTG and observation charts
- Delivery and neonatal records
- Incident review or open disclosure documents where available
Legal review
Time limits and procedural rules differ between states and territories, and different rules may apply to children. A local solicitor would need to identify the applicable law, any notice requirements, and whether the care was public or private, which affects who is responsible and how records are obtained.
For your next conversation
- Request antenatal, labour, birth and neonatal records from each provider
- Identify whether care was in a public or private setting, or both
- Gather any incident review or open disclosure correspondence
- Keep a timeline of key events and conversations
- Record current treatment, therapy and NDIS involvement
Common questions
Do I need an obstetric solicitor specifically?
Medical negligence involving birth is a specialised area. It may be helpful to ask any solicitor about their experience with maternity cases, how they obtain expert opinions, and how costs are handled. This site does not recommend particular firms.
Who would a claim be made against?
It depends on where and how care was provided. Public hospital care is often handled through the relevant health service, while private care may involve individual practitioners and private hospitals. A solicitor would identify the correct parties early.
Sources & further reading
- NSW Limitation Act 1969 (opens in a new tab)
- OAIC: access health information (opens in a new tab)
- Healthdirect: cerebral palsy (opens in a new tab)
- Pregnancy, Birth and Baby: labour complications (opens in a new tab)
- RANZCOG: fetal surveillance guideline (opens in a new tab)
- NDIS: compensation calculator (opens in a new tab)
- Services Australia: Medicare compensation recovery (opens in a new tab)
These references support the topic’s starting points. They do not determine the facts, standard of care or law applicable to an individual matter.