A new bill aims to allow families to claim for mental distress caused by the death of a child in the womb as a result of medical negligence.
Currently in Ireland, under the Civil Liability Act, family members cannot seek compensation for the mental distress caused by a stillbirth that is due to medical negligence.
The only avenue open to them is for the mother to seek compensation for injuries caused to her health.
"This is a sensitive and difficult area of the law relating to the compensation family members can claim following the death of a much wanted child before birth, due to medical negligence.
"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," explained Labour TD, Alan Kelly.
He has published a new bill to amend the Civil Liability Act, to allow members of a family to seek compensation for mental distress.
This issue was brought to his attention following the tragic case of Conor Underwood, who was stillborn in Wexford General Hospital to parents, Mignon and Derek Underwood, in 2012.
Conor died in his mother's womb after a diagnosis of the dangerous pregnancy condition, pre-eclampsia, was continually missed. After four years of fighting the case, the Underwoods finally received an apology from the HSE in 2016 and their case was settled in the High Court.
However only Mignon Underwood was allowed to seek compensation for injuries to her health. Furthermore, when taking a woman's level of pain and suffering into account, the bar that is set is whether she has tried to die by suicide.
Under the current Act, distress caused to the father or other family members is not even considered.
"What I am proposing 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," explained Mr Kelly.
He is also proposing that the ‘solatium', or amount available for compensation for mental distress in fatal injury actions, should 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," he said.
If passed, this would be known as the Civil Liability (Amendment) Act 2018, and according to Mr Kelly's bill, the Act will come into operation ‘on its passing' and ‘shall not have effect in relation to a death or stillbirth that occurred before it comes into operation'.
A copy of the bill can be viewed here
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