Duty of Care: The Foundation of Every Medical Negligence Claim

If your child was injured before birth during labour, delivery, or the days that followed, one of the first questions you will need to answer is this: did the healthcare provider who attended your birth owe you and your baby a legal duty of care?

The answer, in almost every birth injury case, is yes. But understanding what duty of care means, and why it matters is the right place to begin.

What Is Duty of Care?

Duty of care is the legal obligation one person has to avoid causing harm to another. In medicine, it arises the moment a healthcare provider accepts a patient for treatment. It does not require a contract or a formal agreement. It arises from the relationship itself.

When a hospital admits a woman in labour, a duty of care is established. That duty covers the entire delivery team and all attending medical specialist including nurses and midwives.

Critically, that duty extends to the baby as well as the mother. If a baby is harmed during or after delivery, the baby has a cause of action in their own right.

What Does It Cover?

The duty of care in childbirth is not a general obligation to do everything possible. It is an obligation to act with the skill and competence expected of a reasonably trained professional in that field. It covers:

1. Monitoring: Recognising warning signs during labour and responding appropriately.

2. Decision-making: Escalating concerns to a senior clinician when necessary and making timely decisions about intervention.

3. Treatment: Providing care, such as an emergency caesarean or cooling therapy for HIE within the timeframes established by clinical guidelines.

4. Communication: Giving accurate and honest information so that parents can make informed decisions about their care.

   
   

Is the Hospital Also Responsible?

Yes. A hospital does not escape liability simply because it was an employee not the hospital itself, who made the error. Hospitals owe their patients a direct and non-delegable duty of care. They are also responsible for the acts of their employees under the principle of vicarious liability.

This matters enormously for families. It means that even where it is unclear exactly which clinician made the error, the institution that employed that clinician may still be liable.

Is Duty of Care Usually Disputed?

Rarely. Where a mother is admitted to a hospital for delivery and her baby is harmed in the course of that care, the existence of a duty of care is almost never the contested issue.

The harder questions, the ones that require the medical records and independent expert evidence to answer are whether that duty was breached, and whether the breach caused the injury. Those are the focus of the next posts in this series.

What This Means for You

If your child was born at a hospital or clinic, attended by a clinical team, and suffered harm during or after delivery, the foundation of a potential legal claim is almost certainly in place. A duty of care existed.

The next step is understanding what the medical records show, and whether the care provided met the standard expected of a competent professional. If you have not yet requested those records, that is where everything begins.

This post is part of our Medical Negligence 101 series on the four elements of a medical negligence claim. Next: Standard of Care and Breach.

Professional Advice Disclaimer:

This content is not legal advice and no attorney-client relationship is formed.