Remedy sought for loss of unborn due to negligence

A heartbroken couple is supporting proposals for health authorities to compensate parents who lose an unborn child due to medical negligence.

Mignon and Derek Underwood want the law changed after their son Conor was stillborn in 2012 following a missed diagnosis of pre-eclampsia.

An anomaly currently does not allow for claims where the child dies unborn from negligence, according to the Labour Party.

Mignon Underwood described how she had faced a two year battle with the HSE after her son died. The Wexford mother said it was difficult having to prove her pain and suffering.

“It is not until you are in the horrendous loss and you realise all the cards are stacked against you. This is for those who go after us.”

The Underwoods say the HSE settled with them but only after they had initiated a case and endured a long battle with the health authorities.

The brave mother described how the legislative move was also to leave a “legacy” for her son, Conor.

“This [a court case] is the only recourse you have, it has been a very hard road where you are basically on trial. Even though it is medical negligence [and they have admitted it], you still have to prove your pain and suffering to the point that they measure your compensation on the fact did you try to commit suicide or not. That’s the bar that they set.

“Hopefully after today, if this gets passed, women won’t be on trial, they won’t have to prove absolute devastation.”

Under current legislation, according to Labour, the law on civil wrongs only applies if a child is born alive. Where a baby is stillborn and dies as a result of medical negligence, there is no automatic route to compensation for mental distress.

Derek Underwood described how the burden of proof of suffering over losing baby Conor was left to his wife to explain.

“The first thing that you are told is that as a man, you can’t take the case. And you cannot take the case for the death of your child. The only avenue is to prove that your wife or partner suffered emotional pain or stress. And it effectively puts my wife and puts women in future on trial.”

Labour’s Alan Kelly, who has highlighted the case, has launched legislative proposals in the Dáil which, he said, would give heartbroken parents like the Underwoods an avenue to compensation.

The Tipperary TD said: “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. 

Alan Kelly with Mignon Underwood, whose son Conor was stillborn in 2012 following a delayed diagnosis of pre-eclampsia.

“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.”

The Department of Justice last night said it would examine Mr Kelly’s proposed amendments to the Civil Liability Act.

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