How do you establish liability when you want to claim compensation for a miscarriage due to medical negligence?
Eoin P. Campbell, LL.B., Solicitor
Editor in Chief
In Ireland, it is often impossible to claim compensation for a miscarriage due to medical negligence as civil law does not recognise foetuses as ‘persons’ until such time as they are born. Any claim for an avoidable miscarriage during pregnancy therefore has to focus on the mother – any physical injury that she has sustained and her undoubtable grief.
It is also difficult to establish liability in a claim for compensation for a miscarriage due to medical negligence, as the reason for the miscarriage may have occurred prior to conception or at any stage while the pregnancy continued. Furthermore, a claim for an avoidable miscarriage during pregnancy has to show that the actions – or lack of action – of medical practitioners charged with a duty of care would be considered negligent ‘at the time and in the circumstances’.
There are many scenarios which may lead to a miscarriage occurring – and many of them unavoidable – however, should an obstetrician or GP have overlooked the signs of an ectopic pregnancy, misinterpreted test results which would have signalled – for example – the possibility of Polycystic Ovary Syndrome (PCOS) or misdiagnosed a health condition affecting the mother or foetus such as thyroid problems or diabetes – and a miscarriage occurred as a result – the mother should be eligible to claim for an avoidable miscarriage during pregnancy.
The process for establishing liability in a claim for compensation for a miscarriage due to medical negligence is that a solicitor would write to the medical practitioner(s) responsible for the mothers care at the time leading up to the miscarriage and request the relevant notes relating to the treatment she received. The solicitor would engage the services of an independent medical expert to establish whether the scenario in which the foetus was miscarried could have been avoided if an alternative course of action had been taken.
If it is established that there is a justifiable claim for an avoidable miscarriage during pregnancy, the solicitor will then investigate the physical and emotional injuries sustained by the mother. It is likely that the mother would have to undergo a psychiatric evaluation to establish the level of emotional trauma she has suffered and any ongoing consequences due to the miscarriage of her child.
Once negligence and injury are established, the solicitor would send a ‘Letter of Claim’ to the clinic, surgery or hospital at which the medical practitioner liable for the miscarriage was employed or contracted; informing the medical facility that the mother is making a claim for compensation in respect of an avoidable miscarriage.
Making a claim for an avoidable miscarriage during pregnancy is an emotional and difficult time for everybody involved in the case, but if you have suffered a miscarriage which you believe may be attributable to the negligence of a medical practitioner who owed you a duty of care, it is in your best interests to contact a solicitor without delay.