This document summarizes key findings from a Lancet series on ending preventable stillbirths globally. It discusses that stillbirth rates have declined since 2000 but not as greatly as maternal and neonatal mortality. Most stillbirths occur in low-income countries and are associated with factors like infections, non-communicable diseases, and inadequate antenatal care. High-income countries like Australia could do more to investigate every stillbirth case and address social disadvantages that increase risk. The psychosocial and economic impacts of stillbirth are substantial but it remains a hidden issue with stigma. Coronial jurisdictions generally do not investigate stillbirths but legal cases show deaths shortly after birth may be reportable. Claims for mental harm from perinatal death

1. Stillbirth and Neonatal Deaths
A plaintiff lawyer’s perspective
Dimitra Dubrow
Maurice Blackburn Lawyers

2. • January 2016 - Lancet five paper series on ending preventable
stillbirths worldwide
• Follow on from 2011 Stillbirths Series:
• identified extent of loss through stillbirth;
• potential for 1.1 million lives saved annually from cost-
effective interventions; and
• financial return from lives saved.
• Received world wide attention, influenced action and resulted
in improvements
2
Ending preventable stillbirths –
The Lancet series

3. • Stillbirth integrated into WHO’s 2014 global initiative Every
Newborn Action Plan with targets for 2030
• WHO’s Global Strategy for Women’s, Children’s and
Adolescents’ Health includes stillbirth in vision statement
• Shift in portrayal of stillbirths – humanised as babies and
prenatal and newborn health shown as inseparable continuum
3

4. Five Lancet papers addressing various aspects:
• Froen JF, Friberg IK, Lorne JE, et al, Stillbirths, progress and
unfinished business, Lancet 2016, Vol 387, pp 574 to 586,
published online 18 January 2016
• Lore JE, Blencowe H, Waiswa P, et al, Stillbirths: rates, risk
factors and acceleration towards 2030, Lancet 2016, Vol 387, pp
587 to 603, published online 18 January 2016
• Heazell AE Siassakos D, Blencowe H Et Al, Stillbirths: economic
and psychosocial consequences, Lancet 2016, Vol 387, pp 604 –
619, published online 18 January 2016.
• Flenady V, Wojcieszek AM, Middleton P, et al, Stillbirths: Recall to
action in high income countries, Lancet 2016, Vol 387, pp 691 –
702, published online 18 January 2016
• De Bernis L, Kinney MV, Stones W, et al Stillbirths: Ending
preventable deaths by 2030, Lancet 2016, Vol 387, pp 703 –
716, published online 18 January 2016.
http://www.thelancet.com/series/ending-preventable-stillbirths
4

5. • defined as baby born with no signs of life at or after 28 weeks
or 1000g
• in 2015:
– estimated 2.6 million third trimester stillbirths
– 7000 women per day experiencing stillbirth
– 18.4 stillbirths per 1000 total births
– drop from 24.7 in year 2000
• Rate reduction not as great as for maternal and neonatal
morbidity
• 98% of stillbirths occur in low income and middle income
countries
• 75% in sub-Saharan Africa and south Asia
5
Global snap shot – stillbirths

6. • 60% occur in rural areas
• more than half in conflict and emergency zones
• Half of all stillbirths occur during labour – 1.3 million
a year.
• Factors associated with stillbirths include:
• congenital abnormalities (7.4%)
• maternal infections (15.7%)
• non-communicable diseases, nutrition and lifestyle
factors (each about 10%)
6

7. • mother older than 35 years (6.7%)
• Prolonged pregnancies (14%)
• high risk for babies with foetal growth restriction
• already compromised foetus will be more susceptible to
infection or hypoxic events
• World Health Assembly endorsed target of 12 or less
per 1000 births in every country by 2030
• By 2015, 94 mainly high income and middle income
countries had already met this target but with some
wide differences
7

8. • Research led by Associate Professor Vicki Flenady, University of Queensland’s
Mater Research Institute
• Wide variability in rates between 1.3 and 8.8 per 1000 total births
• 10% of stillbirths occur intra-partum
• 6 out of 49 (12%) had third trimester stillbirth rates of 2 per 1000 births or less
• If global stillbirth rate of 2 per 1000 or less, 19,439 late gestation stillbirths
could have been avoided.
• 90% occur in antepartum period associated with obesity and smoking,
suboptimum antenatal care, including failing to identify baby is at risk.
• Substandard care contributes 20-30% of stillbirths (studies in the UK, NZ and
the Netherlands)
• Social disadvantage doubles the risk
8
High income countries

9. • Placental pathologies account for about 40% where reported on.
• Contribution of other important factors vary widely:
• congenital abnormalities 6–27%;
• infection 5–22%;
• spontaneous preterm birth or preterm ruptured membranes in 1–
15%.
• Where foetal growth restriction and placental disorders detected, may
lead to early induction or caesarean section.
• Prevention initiatives include:
• raising awareness re decreased fetal movements;
• avoiding supine sleep position;
• and extending ultrasound scanning to low risk women to detect
foetal growth restriction and reduced growth velocity
9

10. • 2000 stillbirths a year – 6 babies stillborn a day
• Rates not dropped over three decades
• Lancet figures showed:
• 2.7 stillbirths per 1000 births in Australia in 2015 – reduction of 1.4%
since 2000
• 14 high income countries have lower rates
– Iceland has lowest rate at 1.3
– Denmark 1.7
– the Netherlands 1.8
– Croatia 2
– Japan 2.1
10
Australian position

11. • if Australian rate down to 2 per 1000, 210 lives saved a year
• Associate Professor Flenady says more needs be done to address:
– disadvantage where factors such as weight, smoking,
hypertension and diabetes play a role; and
– access to maternal services for those in remote and rural and to
indigenous women.
• gap in explaining some stillbirths - autopsy rates low and no
database of stillbirths. She said:
What we could be doing better is investigating every case of stillbirth more
thoroughly than we are now to identify factors that may have gone wrong. That’s
where we fall down in Australia, we need to implement a national program where
every case is investigated and an autopsy carried.
https://www.theguardian.com/australia-news/2016/jan/19/australia-failing-to-
adequately-investigate-stillbirths-researcher-finds, article by Melissa Davey
11

12. 12

13. • remains hidden with stigma and taboo exacerbating suffering
• fatalism impedes progress in stillbirth prevention
• message to forget / move on with another baby - more so in
low and middle income countries
• But even in countries like ours, concern that not enough
being done to acknowledge burden of stillbirth and reduce
rate
• Stillbirth Foundation Australia focused on prevention and
working hard to raise awareness through education and
research
13
Financial and social burden of
stillbirth

14. • SFA patron Kristina Keneally - spoken about hidden suffering and
need for greater attention to stillbirth
• Increased media attention including on:
– Lancet study findings and other studies;
– Pregnancy and Infant Loss Remembrance Day 15 October
– number of abc stories around lifting the taboo of stillbirth,
personal experiences and acting on reduced foetal movements
– Perinatal Society of New Zealand and Australia guidelines
• Pain of perinatal loss in the spotlight with Bacchus Marsh Hospital
deaths
14

15. 15

16. 16

17. • negative psychological symptoms including depressive symptoms,
anxiety, post-traumatic stress, suicidal ideation, panic and phobias
• symptoms endured for at least four years in about half of the cases
• 4.2 million women living with depression associated with stillbirth
(given 2.6 million stillbirths a year)
• persistent feelings of remorse or guilt for not being able to save baby
• distress in subsequent pregnancies - worry, relief, panic attacks and
depressive symptoms
• staff personally and professionally affected - symptoms of trauma,
guilt, anger, blame and anxiety - fear of litigation and disciplinary
action
• financial costs for families and healthcare system
17
Psychosocial impact of stillbirth

18. • SFA engaged PwC to undertake study into economic and social
impacts of stillbirth
• based on literature review, survey with 593 responses (75%
response) , metrics to estimate cost and economic modelling
• total direct/indirect cost - $6.8million
• definition of stillbirth in Australia – fetal death 20 weeks or more
or 400g or more cf WHO 28 weeks/1000g
• based on definition 7.4 per 1000 births
• direct costs include investigation, counselling and hospital costs at
time of stillbirth and medical and counselling costs associated with
subsequent pregnancy
http://stillbirthfoundation.org.au/economic-impacts-stillbirth-australia/
18
Economic impact in Australia

19. Indirect costs include:
• Funeral costs
• Absenteeism - 78% take time off
• presenteeism – based on Lancet productivity 26% after 30
days
• lost productivity from labour force exit – 9.7% do not return to
work
• Divorce
• Government subsidies
• Impact on family members – 52% family members took time
to support/deal with own grief
19

20. Intangible costs include:
• Mental well-being – 52% reported impact to a high
degree, 43% impacted ‘to some extent’
• Personal relationships – can lead to relationship
issues/breakdown – can bring couples closer
• Family and other relationships – grief not
understood – stigma making it hard for others to
understand - impact on older children from grief of
parents
• Impact on medical staff
• Financial loss – expenses and reduced earnings
20

21. • does not extend to investigating stillbirths
• limited to death – need to have been born alive
• purpose of coronial process to determine cause of death and
make recommendations to avoid similar deaths - applicable to
learnings from potentially preventable stillbirths?
• various states have considered reform and announced support
but no state to date has expanded its jurisdiction
• public attention from time to time including in 2011 with
‘Isabelle’s law’ campaign
See Freckelton, Ian, “Stillbirth and the Law: Options for Law Reform and issues for the coronial
jurisdiction”, (2013) 21 JLM 7
21
Coronial jurisdiction

22. 22

23. • death of infant following home birth
• baby born lifeless – ambulance called – babe could not be
resuscitated
• ECG registered pulseless electrical activity (PEA)
• midwife made application on basis that death not reportable as
stillbirth
• Court found PEA could be seen as a sign of life including potential
for resuscitation.
• Coroner’s jurisdiction should not be construed narrowly given the
public interest to be served by inquests and purpose of inquiry of
finding out cause of deaths and prevention of future deaths.
23
Barrett v Coroner’s Court (SA)
(2010) 108 SASR 568

24. • Death reportable
• inquest that followed examined this and other homebirth
deaths jointly
• recommendations made in relation to public education about
the risks of homebirths
24
Coroner’s finding

25. • distinction between death and stillbirth critical.
• baby delivered via emergency caesarean section to mother with
high BMI at 37 weeks at regional hospital following premature
rupture of membranes, syntocinon and non-reassuring CTG
• parents told babe had died and sought permission to stop
resuscitation.
• told baby stillborn, Coroner’s Court contacted but death would not
be referred because the Coroner does not investigate stillbirths
• relevant as to whether tubing could be removed
• offered post mortem - placenta not retained
25
Inquest into death of Mabel
Windmill – findings 15 July 2015

26. • confusion as to whether this was a stillbirth or a neonatal
death
• hospital soon acknowledged baby not stillborn
• umbilical pulsation felt and transient heart rate heard during
extensive resuscitation and recorded at 30 minutes of age.
• Cause of death on autopsy sepsis secondary to GBS and
severe acute pneumonia
• Matter proceeded to inquest
26

27. Coroner Hawkins said:
the reportability of death involving babies who are born in a
moribund state is often difficult to determine. Particularly in the
time immediately following the birth, the distinction between a
stillborn child and a neonatal death can seem ambiguous and
factually difficult to navigate. Further, what constitutes a life
and subsequent death in law does not always align with the
medical view or community perceptions. Nevertheless, having
considered the relevant legislation and case law in line with the
facts of baby Mabel’s birth, I determined that the death was
reportable because it met the threshold criteria of a “death” in
the relevant sense and it was unexpected.
27
Coroner’s finding

28. • risks associated with high BMI not adequately communicated to
enable proper understanding of risk and options available
• CTG trace abnormal at various times throughout day of delivery
• severity of abnormality/implications for the medical management
of the labor not appreciated
• undue weight placed on potential risks of caesarean
• decision to augment labor with Syntocinon was inappropriate
• should have been born by caesarean section earlier in the day
• had baby been born earlier, chance of survival.
• recommendations made for RANZCOG to consider education
program for CTG training for locums
28

29. • Need recognisable psychiatric illness
• ‘nervous shock’ term now rejected – seen as describing passing shock
rather than compensable physical/mental consequences
• also referred to as psychiatric disorder or injury and in legislation as
‘mental harm’
• no damages for grief, sorrow, distress, worry or need to make
adjustments
• universality of these emotions seen as not having a compensable
character
• Cf UK where law change to Fatal Accidents Act 1976 allows parents to
claim bereavement damages capped at £12,980
• psychiatric injury to be supported by expert psychiatric evidence
29
Claims for perinatal death

30. • traditional requirement for direct physical perception of events
and close relationship with victim
• case law moved away from this
• High Court in Tame/Annetts ruled direct perception no longer a
requirement.
• in Annetts, plaintiffs’ 16 year old son died while working as a
jackaroo in a remote part of WA.
• before commencing mother had called prospective employer
and was assured that son would be fully supervised.
30
Annetts v Australian Stations Pty
Ltd/Tame v NSW (2002) 211 CLR
317

31. • police told parents by phone that son missing
• body found months later and father shown photo of remains
from which he identified his son
• High Court found parents owed a duty of care and direct
perception was not required for duty to arise
• reasonably forseeable parents would suffer injury
• rule that made liability for injury conditional on geography or
temporal distance or dependant on way news communicated
was apt to produce arbitrary outcomes – these factors would
go to assessing reasonable forseeability, causation and
remoteness of damage
31

32. • state based legislation now provides for recoverability of
damages for mental harm
• in Victoria, Section 72, Wrongs Act 1958 provides:
duty to take care not to cause pure mental harm arises if defendant foresaw
or ought to have foreseen person of normal fortitude might suffer a
recognised psychiatric illness if reasonable care not taken in circumstances.
• In NSW, Victoria and Tasmania need either temporal or
relational proximity of either being a witness or present at
scene or in a close relationship with victim
32

33. • In South Australia, section 53, Civil Liability Act 1936, provides
that damages only awarded for mental harm if injured person
– was physically injured in the accident or was present at the
scene of the accident when the accident occurred; or
– is a parent, spouse, domestic partner or child of a person
killed, injured or endangered in the accident.
• Relevant in King v Philcox (2015) CLR 304 – brother of
deceased in car accident drove past scene five times only later
learning about brother’s death and visiting scene next day –
found not at scene ‘when’ accident occurred
33

34. • Damages awarded for:
• Non economic loss (pain and suffering); and/or
• Economic loss (loss of earnings and loss of earning capacity and past and
future medical expenses and attendant care needs).
• Need to reach the thresholds for recovery of damages set out in state-based
Civil Liability Acts
• Victoria – need ‘significant injury’ for pain and suffering
• Significant injury - threshold level of impairment under the American Medical
Association Guides but deemed to be a significant injury if:
• Loss of foetus
• injury is psychological or psychiatric arising from the loss of a child due to
an injury to the mother or the foetus or the child before, during or immediately
after the birth deemed to be a ‘significant injury’
S 28LF (c) (ca), Wrongs Act 1958
34,
Damages

35. • New South Wales - person needs to be 15% of the most extreme case and
then sliding scale. If rating 15% - general damages $6,000, if 25% - $39,500.
Section 16, Civil Liability Act 2002.
• Western Australia - threshold amount needs to be reached which is then
deducted from the award of damages. Amounts are assessed from a scale as
the amount increases.
Sections 9-10, Civil Liability Act 2002.
• South Australia - needs to have been a significant impairment of normal life for
at least 7 days or medical expenses of the prescribed minimum. Then general
damages are assessed according to a scale from 0 to 60.
Section 52, Civil Liability Act 1935.
• Queensland – no threshold but amount of damages depends on Psychiatric
Impairment Rating Scale (PIRS) converted to a whole person impairment –
rating of 1 to 10% - range $1,440 to $15,750
Schedule 5, Civil Liability Regulations 2003.
35

36. • baby stillborn after foetal heart could not be detected
• hospital admitted liability
• father brought claim as ‘secondary victim’ – awarded $30,000
• Court found that father was suffering more than grief and
condition had progressed to PTSD but would have made
recovery if treatment sought
• stress from later pregnancy and need to assist wife to cope
aggravated condition but were not compensable
36
McKenzie v Lichter [2005] VSC
40

37. Court said:
The grief that flows from the event is not compensable. There is
no doubt that he suffered grief, distress, upset and annoyance
because of the death of Oscar. The court, in determining
damages, must divide up the effects of the stillbirth between grief
et cetera and a recognised psychiatric illness, in this case being
post traumatic stress with depression. It is not an easy exercise.
37

38. • Baby born with severe brain damage as a result of hypoxia
from shoulder dystocia from alleged negligence
• Baby on life support – contentious issue around parent’s
wishes to resuscitate and re-ventilate if deterioration – baby
died at four weeks
• Plaintiff’s evidence that hospital did not re-ventilate baby and
performed an autopsy against its wishes
• Mother awarded $200,000, father $180,000 and three year old
sibling’s claim rejected
38
Marchlewski v Hunter Area Health
Service [1998] NSWSC 771

39. • death of baby son - life support was switched off at four days
• liability admitted
• plaintiff suffered from anxiety and PTSD
• defendant’s expert view was PTSD receded
• plaintiff since had two healthy children
• returned to part time work on as a bank teller.
• Completed a Bachelor of Arts seen as ‘powerful evidence that she is
able to concentrate and perform’
• assessed at 40% of most extreme case - awarded $214,000 for non-
economic loss - total $366,903.60
39
Rasmussen v South Western Sydney
Local Health District [2013] NSWSC
656

40. • Bacchus Marsh Hospital higher than expected numbers of perinatal deaths
between 2013 and 2015
• offers of settlement made in relation to 7 (out of 11) deaths found to have
been avoidable
• Health Minister called upon public health insurer not to engage in a David and
Goliath fight
• Further four avoidable deaths identified as a result of a further lookback to
2001
• no offers of settlement made but families invited to demonstrate the extent of
the harm suffered and negotiate
• contributed to strengthening of psychiatric injury claims and upward trend
• public response strong - scrutiny of systems to ensure steps taken to avoid
such a tragedy
• mothers and families spoke out about loss and grief from losing baby and re-
traumatisation of learning baby’s death was avoidable or that questions being
asked about treatment at hospital in which they placed their trust
40
Bacchus Marsh settlements

41. 41

42. 42

43. • award for psychiatric injury of $1,800,000
• captured headlines around the country/grabbed the attention
of lawyers
• damages awards and settlements moving upward but sum
unprecedented
• keen interest in amount of damages when Bacchus Marsh
news broke – figures of between $50,000 and $250,000
mentioned
43
McManus v Murrumbidgee Local
Area Health Network [2016]
NSWSC 1347

44. • during pregnancy plaintiff suffered from gastroenteritis.
• attended Wagga Wagga Base Hospital every day for 3 weeks
for CTG monitoring and ultrasound every second day
• on 14 May 2010 underwent tests at the Hospital including
ultrasound.
• advised by doctor fine to go but midwife disagreed
• observed dispute between doctor and midwife throughout
morning. She was confused and in tears and discharged
home at about 4.30 pm.
44

45. • plaintiff returned following day and CTG performed.
• told to have something to eat and return later at which time
further CTG tracing was undertaken.
• told collect her things and return to undergo caesarean section
later - could not be performed straightaway as she had eaten.
• Plaintiff returned at about 1.00 pm and things became urgent.
• taken to theatre and upon waking told by doctor she had not
previously met “I am really sorry but the baby didn’t make it”.
45

46. • plaintiff claimed hospital failed in antenatal management and
monitoring of labour and that earlier caesarean section should
have been performed which would have avoided her son’s
death
• hospital admitted liability
• central issue - extent of injury, likely prognosis and likelihood
of improvement with treatment and resolution of claim
46

47. • in shock, angry, depressed and developed alcohol abuse
• became socially withdrawn, edgy, anxious and nervous
• unable to sleep, had nightmares and flashbacks, became
fearful.
• required several in-patient admissions
• attempted to enter the workforce, but unable to do so
• impact on relationship with husband who cared for plaintiff and
undertook household and domestic tasks
47

48. • plaintiff diagnosed with post-traumatic stress disorder and
alcohol dependency
• evidence that needed long-term treatment and recovery highly
unlikely
• work capacity limited to 8 hours a week
• plaintiff would most likely not be able to resume employment
in managerial role held prior to death
48

49. • Hospital’s evidence of benefit from desensitisation exposure type
therapy rejected
• involved revisiting birth, had been tried, could be hazardous and
could result in exacerbation of symptoms
• unlikely that plaintiff would undergo treatment and not unreasonable
for her to refuse
• plaintiff’s evidence that PTSD resulted in irreversible changes in
neural pathways limiting recovery rejected
• evidence not allowed as not applicable to plaintiff and no
neuroimaging studies to support it
• evidence given on eve of final conclave of experts
• Judge’s own assessment of plaintiff was that she did not suffer from
cognitive difficulties
49
Court finding

50. • general consensus that litigation played a role but proceedings
but one factor in cause of distressing medical condition and
not even most significant factor
• resolution of the proceedings would be beneficial but not make
significant difference to suffering
50

51. Table from Tidswell, Rebecca, The assessment of damages in nervous shock claims, Precedent,
January/February 2017 Issue 138, p 26
51
Damages breakdown - McManus
HEAD OF DAMAGE DETAIL AMOUNT
Non-economic loss 60% of a most extreme case* $356,500
Past expenses Medical treatment and travel $112,115
Future expenses Psychiatric consultations ($250
per month for life)
$56,571
Psychologist consultations ($120
per week for life)
$117,672
Inpatient expenses (semi-annual
psychiatric hospital admissions
for life)
$195,500
Travel expenses $50,000
Medication $55,000
Vocational/supportive counsellor $5,000
Domestic assistance Past assistance (7-14 hours per
week)
$65,060
Future assistance $192,200
Economic loss Past wage loss $152,410
Past superannuation loss $18,100
Future economic loss $365,860
Future superannuation loss $43,470

52. Thank you.
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