The death of a newborn baby who was given the wrong gas at a Sydney hospital has exposed a "defect" in Australian laws that makes it difficult for parents to claim compensation for their loss, legal experts say.
The baby son of Youssef and Sonya Ghanem died on July 13 after he was mistakenly treated with nitrous oxide instead of oxygen at Bankstown-Lidcombe Hospital's neonatal resuscitation unit.
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Mother of newborn who died speaks out
Sonya Ghanem describes the moment she saw her lifeless newborn baby after he was mistakenly given nitrous oxide instead of oxygen at Bankstown-Lidcombe hospital in Sydney's west. Vision courtesy ABC News 24
A second child, a girl born in June, remains in a critical condition after she was also mistakenly treated with nitrous oxide, commonly known as "happy gas".
Under Australian law the parents of children who die as a result of negligence can only recover damages if they can prove they suffered a recognised psychiatric illness as a result of the death.
They cannot recover damages or compensation for distress or grief alone.
"It is a really important gap in our law that we should remedy," said Barbara McDonald, a professor of law at the University of Sydney.
The current laws would not prevent the NSW government paying compensation voluntarily to spare the families the trauma and expense of a court case.
Health Minister Jillian Skinner said on Tuesday this was a "complex and highly sensitive legal matter" and South Western Sydney Local Health District would "consider how best to continue to provide support to both families in the future, including the provision of monetary payments".
![The baby son of Youssef and Sonya Ghanem, pictured, died after being given the wrong gas in hospital.](/web/20160728120256im_/http://www.smh.com.au/content/dam/images/g/q/d/l/t/i/image.related.articleLeadwide.620x349.gqdpuu.png/1469588733755.jpg)
Such payments "could be considered without the need for formal litigation", Mrs Skinner said.
But experts said more should be done to reform Australian laws.
In Britain, parents can make a claim for bereavement without showing they suffered a psychiatric illness and receive the small sum of £12,980 ($15,500) in recognition of their loss.
Professor McDonald said the modest bereavement damages did not go "anywhere near replacing the person; it's not the value of a life lost". But they did "provide some sort of legal recognition to the parents that they have suffered a loss".
"I think it's a great defect in our law that our Compensation to Relatives Act doesn't have any provision for bereavement damages," she 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 and the cost of ongoing medical treatment.
Maurice Blackburn senior associate Libby Brookes, who heads the firm's medical negligence practice in NSW, said the Ghanem family could make a claim for funeral expenses under the Compensation to Relatives Act.
She said it was also likely the Ghanems could prove in a personal injury claim that they had suffered psychiatric illness as a result of the death of their son, John. But Ms Brookes said one would expect the NSW government would provide compensation in this case outside the court process.
"In this type of case, which is publicised and is so horrific, I'm sure that NSW Health will make it easy," Ms Brookes said.
"But there are lots of other cases that we see where it's not so easy. You have parents who've lost a child [and] then they have to go through the rigmarole of trying to prove there was negligence.
"In a way they're put on trial themselves because they have to relive that terrible thing again and have to go to speak to a psychiatrist to prove they've suffered a recognisable psychiatric injury."
Ms Brookes said there should be a "special category" in Australian law "for this type of case where a child or even an elderly person dies as a result of negligence".
"Why shouldn't their family be compensated for that [without showing psychiatric injury]?" she said.
Ms Brookes said one of the "major concerns" in this case was whether a full investigation after the first incident in June could have prevented the death of baby John.
Professor McDonald noted that while there may be a question in this case about whether the hospital or the manufacturer of the gas, BOC Limited, was responsible for the tragedy "it doesn't matter who it is as far as the hospital is concerned because they have what is called a non-delegable duty to their patients".
But it may be important in terms of whether the hospital and the manufacturer were each liable.