Civil Liability Bill to provide compensation in stillborn medical negligence cases
Labour Health spokesperson Alan Kelly TD, has published a new bill to amend the Civil Liability Act so that a family that loses an unborn child due to medical negligence is entitled to seek compensation for mental distress. Deputy Kelly was joined at the launch of the Civil Liability (Amendment) Bill 2018 by the Underwood family from Wexford who lost their son Conor due to medical negligence.
Deputy Kelly said:
“This is a sensitive and difficult area of the law relating to the compensation family members can claim, following the death of much wanted child before birth, due to medical negligence.
“Under the Civil Liability Act family members cannot currently seek compensation for the mental distress caused by the death of a child in the womb due to medical negligence, only for injuries caused to the health of the mother.
“Under Section 49 of the current Act, the law on civil wrongs only applies if a child is born alive. In situations where a child is stillborn and has died as a result of medical negligence there is no route to compensation for mental distress for family members.
“The need for a change in the law came to my attention following the tragic case of Mignon and Derek Underwood from Wexford whose son Conor was stillborn in 2012 following a missed diagnosis of pre-eclampsia. Their case was settled in the High Court in 2016 and they received an apology from the HSE.
“What I am proposing today would extend the current law to provide both recognition and a remedy where family members suffer as a result of the loss of a pregnancy that is caused negligently. This would apply from 24 weeks of gestation and where the death was caused by the wrongful act of another.
“I am also proposing that the ‘solatium’ or amount available for compensation for mental distress in fatal injuries actions generally be increased from €35,000 to €75,000.
“While no sum can compensate for the loss of a loved one, the level should recognise substantially the harm done to family members.”
A copy of the Explanatory memorandum is available here: https://www.labour.ie/download/pdf/civil_liability_amendment_bill_2018_explanatory_memo.pdf
A copy of the Bill is available here: https://www.labour.ie/download/pdf/civil_liability_amendment_bill_2018.pdf