The terrible tragedy of a baby dying after being given the wrong
gas at Bankstown Hospital has exposed a gap in the law regarding
compensation for medical negligence.
Under Australian law the parents of a child who dies as a result
of negligence can only recover damages if they can prove they
suffered a recognised psychiatric illness as a result of the
Justin Stack, Managing Director of Stacks Law Firm and legal
compensation expert, said under current laws grief alone is not
enough to merit compensation or recover damages.
"It is a grossly unjust situation that forces grief
stricken families to prove to specified legal requirements that
they have experienced a recognised psychiatric illness as a result
of the death," Mr Stack said.
"This gap in the law should be closed so that the stricken
family don't have to go through distressing psychiatric
examinations to evaluate how badly they have been affected by such
an enormous tragedy."
The NSW government may offer a compensation settlement, but Mr
Stack points out that may include requirements that bar them from
speaking out publicly against the hospital or the government for
Mr Stack said a key for any legal claim for negligence in the
Bankstown Hospital case is what was done after the first baby was
given the wrong gas a month earlier and suffered brain damage as a
"Any family that has been affected by medical negligence
should get expert legal advice on what can be done in terms of
compensation. It won't change what was done or end the grief,
but the legal action may lead to the mistake never happening
Law Professor Barbara McDonald of the University of Sydney told
the Sydney Morning Herald there should be some provision under law
for compensation for bereavement.
"I think it's a great defect in our law that the
Compensation to Relatives Act doesn't have any provision for
bereavement damages," Professor McDonald said.
In the case of a child who suffered injury as a result of
negligence, the parents would also need to show they suffered a
psychiatric illness to recover damages directly.
However, a case could be brought on the child's behalf and
they could recover damages for the injuries they suffered, lost
future income and the cost of ongoing medical treatment amongst
The United Kingdom allows parents to make a claim for
bereavement without having to establish it caused a recognised
psychiatric illness. It may be only $15,500 but it does provide
some sort of legal recognition to the parent that they suffered a
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