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Our second blog in Baby Loss Awareness Week considers the psychological impact on parents following the loss of a baby, and the legal position in terms of claiming compensation for psychiatric injuries.
The death of a child is a hugely traumatic event in the life of any parent. The death of a child before or during birth can be particularly devastating.
I have acted for a number of parents in cases relating to the death of a baby. Parents of stillborn babies frequently describe walking out of hospital feeling like a failure; that feeling is then compounded over the next few weeks by a series of well-meaning enquiries about the baby. Often, parents isolate themselves from potentially supportive social networks, in part to avoid such questions. Equally frequently, parents in this position desperately want to know what has happened, and why. Very many parents start clinical negligence claims simply in order to obtain answers.
Stillbirths have a wide variety of causes, ranging from bacterial infection (Group B Strep or GBS is a particularly virulent infection, which can be passed from mother to baby), to surgical errors. In one case I concluded successfully, a caesarean-section went catastrophically wrong, because insufficient anaesthesia was provided. As a result, the mother’s abdominal muscles went into spasm, and the baby could not be removed by the surgeon. The child died before finally being delivered, and both mother and father (who witnessed the birth) were left understandably traumatised.
Claiming for psychological injury – what is the legal position?
It is very common for parents of a stillborn child to suffer psychological injury, which can have a long-lasting impact, including affecting their ability to work.
Where the loss of a baby occurred due to negligence, and my colleague Lucy discussed some examples in her blog earlier this week, parents may seek to recover financial compensation for their own psychological injuries.
It can be difficult to recover damages for such injuries, particularly for fathers due to the present law. Firstly, parents must prove, through medical expert evidence (usually given by a psychiatrist), that they have suffered a recognised psychiatric injury, and the law requires this to go beyond which would be considered ‘normal’ grief.
The law then becomes more complicated. A mother would generally be able to claim for her injuries because she would be treated as one and the same person as her unborn child for legal purposes. They are both therefore assessed as ‘primary victims’ of negligence. However, fathers will be referred to as secondary victims – that is, people who have suffered an injury by witnessing a distressing event that has harmed someone else, rather than being directly harmed. In such cases, it is necessary for the father to prove not only that a psychological injury has been caused, but that he has satisfied as series of legal tests. These include:
1. an emotionally close relationship with the primary victim;
2. physical closeness in time and space to the events;
3. that these circumstances constituted a sudden and horrifying event.
In cases involving a stillbirth, the nature of the events themselves can unfortunately make it difficult for a father to satisfy the law as it stands at present, however each case must be considered on its own facts.
We have written previously about the issues with claiming damages for psychiatric injury and the unsatisfactory positon with the present law. In my view it cannot be fair and just that there is a distinction drawn between mothers and fathers who both suffer injury from the loss of their baby which allows a claim by one parent, but denies the other. The law was established over 20 years ago and there are ongoing campaigns for it to be re-visited to address these inequalities. The loss of a baby is traumatic enough without parents then having to go through unnecessarily complicated legal cases to seek appropriate answers and financial compensation.