From The Illawarra Mercury June 12 2024
A compensation lawyer says there are a “disproportionate” number of women from Wollongong seeking legal advice about birth trauma, with one in five of his medical negligence clients related to the issue.
Adam Clements, who moved his practice to Wollongong a couple of years ago and now works for Kate Williams Medical Law Specialists, had a number of clients who lodged submissions during the recent NSW inquiry into the issue.
“[Women from Wollongong] ended up being a disproportionate percentage of my client base,” he said.
“Birth trauma for my clients generally involves some form of physical injury, either the lower grade tears … all the way up to the [worst categories], and then the consequences of those if they are perhaps missed or misdiagnosed all the way through to bladder and bowel incontinence problems.
“It can be surgical complications arising from caesarean sections, post operative infections, and then psychiatric consequences, which are secondary either to those physical problems which have occurred, or because of the way in which their pregnancy was managed.”
Keen to see change in the health system to reduce trauma, Mr Clements said he had carefully reviewed the recommendations made by the inquiry and would be watching closely as the government responds.
“I think the next big phase of advocacy on the issue is going to be based on the government’s response,” he said.
“If there’s a positive government response to adopting a lot of the recommendations, that’s going to go a really long way to addressing things.”
A high threshold
Mr Clements said people seeking compensation for medical negligence in NSW generally needed to have some level of permanent injury.
“In the case of a mother who goes through birth trauma, but that birth trauma doesn’t lead to a permanent physical or psychiatric consequence, … even though it could have been a very harrowing experience and the level of care provided could have been very substandard… there’s really no compensation available to that person,” he said.
For those with ongoing and permanent problems, compensation can include medical expenses being paid for, access to private health care, and help with daily care and support needs.
“There can be some compensation as well for that person’s pain and suffering and what they’ve had to go through … to really compensate them for the fact that they will have to live with that level of suffering and injury and things for the rest of their lives,” he said.
However, getting to the point where a legal case could be lodged was “onerous”.
“It’s not a simple matter of just commencing some court proceedings,” he said.
“You have to actually go and find an obstetrician who is going to review the evidence, review the records, consider the management and express a view, which is that the care management treatment provided fell below a reasonable standard of care.
“You need to have that obstetrician who is independent, willing to review the case and give you that evidence.
“A lot of it really falls down to what’s called expert opinion, there is quite a wide spectrum of what it can be considered to be appropriate and competent and what is perhaps not considered competent.”
While the public inquiry has raised awareness of birth trauma and some of the attitudes to women’s care, Mr Clements said it was not necessarily going to get any easier to seek compensation.
“I don’t think that we are going to really see any lowering of the threshold,” he said.
He said the inquiry has recommended that the government review laws and consider legislative changes regarding informed consent, and also consider further research into the benefit and difficulties of legislating with respect to the birthing experience.
“One of the things that they have to balance is there is a growing percentage of mothers who, rightly so, want to have quite a lot of input on their birthing experience by using birthing plans and things like that,” Mr Clements said.
“The medical profession wants to balance birthing plans with what is possible and achievable within the realm of obstetric medicine and taking into account foetal and maternal health. Those things are sometimes at odds.”
“So I don’t know that it is going to make it easier to access compensation for mothers, and those legislative reviews usually tighten the other way.
“So I hope that they don’t tighten it and make it harder to access.”
‘Don’t suffer in silence’
He said it was positive that there were recommendations to increase access to physiotherapy for pelvic floor injuries and psychology in postnatal care, as this would help women to get help without needing to seek legal support.
“Getting those services implemented in a timely fashion after birth trauma will go a long way to minimising the impact that it has on mothers,” he said.
“Those two recommendations are really crucial so that they can come in and those providers need to be involved as quickly as possible.”
Mr Clements said he would advise women who were concerned about their birthing experience to consider getting legal advice, even if they didn’t proceed.
“Most of the time you can go and get some advice for free or at no cost,” he said.
“So even though the overall undertaking of making a claim does have a barrier to entry, making that initial inquiry may give you either some peace of mind or help you access something which makes life a little bit easier.”
“You need to get in and get treatment and get it early as well, because if you can access those treatments and those supports and get a treating team around you that you trust, you’ll get a better outcome. Just don’t suffer in silence about it.”
Original Article by Kate McIlwain, Illawarra Mercury with Adam Clements