Hypoxic-Ischaemic Encephalopathy (HIE) at Birth: Claims in Victoria

The short answer

Sometimes. A Victorian claim for hypoxic-ischaemic encephalopathy (HIE) exists where the care in labour, at delivery or in the first hours after birth fell below accepted practice, and proper care would probably have avoided some or all of your child's brain injury.

General information only — this article is not legal advice.

HIE is not always preventable. Some babies are injured before labour begins, and some newborn encephalopathy has no hypoxic cause at all. A claim usually turns on three windows. Was your baby's heart rate monitored and acted on, as the RANZCOG intrapartum fetal surveillance guideline expects? Once the trace showed compromise, was the birth expedited in time? And if your baby met the criteria for therapeutic hypothermia, was cooling started within six hours of birth, as Safer Care Victoria guidance asks? Each window needs independent expert evidence about the care and about what it changed. The claim belongs to your child, and a parent brings it as litigation guardian. The time limit is six years from discoverability or twelve years from the birth, whichever ends first.

If your baby was cooled after birth, you may have spent days in a neonatal unit being told words like encephalopathy, Sarnat and MRI, with very little time to ask what any of it meant. Wanting to know whether it could have gone differently is not an accusation against the people who cared for you. It is a fair question, and the law has a structured way of answering it.

The window	What the Victorian and national guidance asks	The legal question
Labour	A risk assessment on admission and throughout labour, continuous CTG offered where risk factors exist, and a response to an abnormal trace that includes timely escalation to the most senior clinician available	Was the monitoring and its interpretation within accepted practice at the time?
The delivery decision	Features likely to be associated with fetal compromise need immediate management, which may include urgent delivery	Was birth expedited when a competent clinician would have done so, and would earlier birth probably have avoided the injury?
The first six hours	For babies of 35 weeks or more with moderate-to-severe HIE, cooling started between one and six hours of life, after referral to PIPER	Did your baby meet the criteria in time, and would earlier or better cooling probably have reduced the injury?

Summarised from RANZCOG Intrapartum Fetal Surveillance (C-Obs 1) version 5.2, June 2026, Safer Care Victoria's Therapeutic hypothermia for HIE guidance and PIPER's Therapeutic Hypothermia for Hypoxic Ischaemic Encephalopathy guideline (version 03, effective 12 June 2024), as published at 29 September 2026. This describes what the guidance asks of clinicians. It is not medical advice.

Is HIE always caused by negligence?

No, and it is worth being clear about that before anything else.

Hypoxic-ischaemic encephalopathy means a brain injury in a newborn caused by too little oxygen and blood flow. Safer Care Victoria's guidance on encephalopathy in neonates uses the broader term "neonatal encephalopathy" because the same signs in a newborn have several possible causes. Its list of antecedents includes infection, cerebral infarction, bleeding in the brain, brain malformations, inborn errors of metabolism and genetic syndromes, as well as hypoxia-ischaemia around the birth. HIE is the label kept for babies with convincing evidence of a hypoxic event around or during labour.

Timing matters too. The RANZCOG guideline notes that for many long-term neurological impairments, such as cerebral palsy, the injury was likely sustained during pregnancy, well before labour. A brain injury that happened before anyone could have acted is not a negligence claim, however hard it is to live with.

The claimable cases are the ones where a window was open and the care missed it. That is what the rest of this guide is about. Birth injury claims covers the wider range of injuries to mother and baby around birth.

What should happen during labour to catch a baby in distress?

In Victoria, Safer Care Victoria's Care during labour and birth guidance says fetal surveillance should follow the RANZCOG Intrapartum Fetal Surveillance guideline. That guideline, known as C-Obs 1, is the document an independent obstetric or midwifery expert will almost always be asked about.

Its current fifth edition sets out several expectations.

A risk assessment that keeps going. A comprehensive risk assessment is performed on admission and throughout labour, including any concerns raised by the woman or her support people.
The right kind of monitoring. Continuous CTG should be offered where risk factors for fetal compromise have been identified. Listed risk factors include pre-eclampsia, antepartum haemorrhage, meconium-stained fluid, a prolonged first stage and excessive uterine activity.
A trace read against a standard. Clinicians should use a standardised method of CTG evaluation. The guideline lists features that are likely to be associated with fetal compromise and require immediate management. These include bradycardia lasting more than five minutes and absent baseline variability.
A response to an abnormal trace. Immediate management could include stopping or reducing oxytocin where excessive contractions are the cause, repositioning, and timely escalation to the most senior clinician available.
An accurate record. Whatever method is used, fetal and maternal wellbeing must be documented, taking care to tell the baby's heart rate apart from the mother's.

The standard is the one that applied on the day. Section 58 of the Wrongs Act 1958 (Vic) measures a practitioner against what could reasonably be expected of someone with that skill, as at the date of the alleged negligence. The fifth edition of C-Obs 1 was approved in September 2025, so an earlier birth is judged against the edition and the hospital policies in force at the time.

When does a delayed caesarean or assisted birth become negligence?

The delivery decision is usually the centre of the case. A trace can be read correctly and still lead to harm if the response is too slow.

C-Obs 1 says features likely to be associated with fetal compromise require immediate management, "which may include urgent delivery". It says fetal blood sampling should not be performed where there is a clinical reason to expedite birth, such as an abnormal CTG likely to be associated with fetal compromise. Where birth is delayed because a theatre is not immediately available, it says medication to relax the uterus could be considered to reduce fetal hypoxia while waiting.

The law then asks two questions. The first is whether the delay fell below accepted practice. Under section 59 of the Wrongs Act, a professional is not negligent if they acted in a way widely accepted in Australia by a significant number of respected practitioners as competent practice. A court can reject that opinion only if it finds it unreasonable.

The second is causation, and in HIE it is usually the harder question. Section 51 requires that the negligence was a necessary condition of the harm. Your child's experts have to show that birth at the right time would probably have avoided some or all of the injury. In Tabet v Gett [2010] HCA 12, the High Court held that losing a less than even chance of a better outcome is not damage the law compensates. A delay that might have made a difference is generally not enough.

What if cooling was not started within six hours?

This window is the one most parents never hear about, and it is set out plainly in Victorian guidance.

Safer Care Victoria describes therapeutic hypothermia as part of standard care for babies of 35 weeks or more with moderate-to-severe HIE. Its key message is that neuroprotection is optimised by starting cooling soon after resuscitation, between one and six hours of life. It says the greatest benefit comes when cooling starts as soon as possible after the hypoxic event, before seizures and secondary injury set in.

Most of these babies are born unexpectedly in hospitals without a neonatal intensive care unit. The guidance says outborn babies should have cooling started in the special care nursery under the guidance of PIPER, the state's newborn retrieval service, and only after referral to PIPER and discussion with its neonatal consultant.

To be eligible, the guidance requires moderate or severe encephalopathy between one and six hours after birth. It also requires evidence of hypoxia-ischaemia around birth, gestation of 35 weeks or more, and an age of less than six hours. PIPER's own guideline says babies at risk should be scored hourly for the first six hours using the modified Sarnat criteria. It says cooling should be considered for any baby who meets the criteria at any stage of that scoring, even if their neurology later improves.

That gives a claim several possible points of failure.

A baby with risk factors who was not screened, or whose cord or blood gas was not taken within the first hour
Neurological assessments that were not done, or not repeated, in the first six hours
A referral to PIPER that came late, so the window closed before cooling began
Cooling that was started but not controlled, since the guidance targets a rectal temperature of 33 to 34°C and warns that overheating worsens outcomes

Causation applies here as well. Cooling reduces the risk of death and disability, but it does not prevent every injury. An expert has to explain what timely cooling would probably have changed for your child. Tabet v Gett sets the rule: a probable difference, not a possible one.

What do the Sarnat grade and the MRI mean for a claim?

They are not only medical tests. In a claim they become evidence about when the injury happened and how serious it was.

The Sarnat grade. The modified Sarnat criteria grade encephalopathy as mild, moderate or severe. The grade in the first six hours decides whether your baby was eligible for cooling under Victorian guidance. PIPER's guideline says there is currently inadequate evidence to support cooling in mild HIE. So the hourly scores in the chart matter. They show whether your baby crossed into the eligible range, and when.

The MRI. Safer Care Victoria's guidance says MRI can give information about the cause and timing of the injury. It recommends MRI between days five and fourteen for babies with moderate to severe encephalopathy. It says patterns such as injury to the deep grey matter or the watershed areas of the cortex are typical of a hypoxic-ischaemic injury around birth. Focal infarction, haemorrhage or a metabolic cause suggest the encephalopathy came from something else.

The cord gases and Apgar scores. The same guidance lists low Apgar scores at five and ten minutes, and cord blood acidaemia, among the signs consistent with an acute event around labour. C-Obs 1 suggests paired cord blood gas or lactate analysis where there was evidence of compromise in labour or the baby was born in poor condition.

None of these results answers the legal question by itself. Together they help an expert say whether the injury was sustained in labour, in a window where care could have changed it, or earlier.

Does a later cerebral palsy diagnosis change the claim?

It can make the injury clearer, but it does not change what has to be proved.

A cerebral palsy diagnosis often comes months or years after an HIE birth. Research drawing on the Australian Cerebral Palsy Register found that cerebral palsy birth prevalence in South Australia, Victoria and Western Australia fell from 2.1 to 1.5 cases per 1000 live births between 1995–96 and 2015–16. The authors say the fall probably reflects refinements to maternal and neonatal care, and name therapeutic hypothermia for term babies with HIE among them. The register's 2023 report notes that for most people with cerebral palsy, the full causal pathway to the brain injury is not completely understood.

For a claim, a later diagnosis matters in two ways. It can shape the evidence about how serious the injury is and what your child will need across a lifetime. It can also bear on when the claim became discoverable, which affects the time limit below.

Who brings the claim, and can parents claim too?

The claim for your child's injury belongs to your child. Under rule 15.02 of the Supreme Court (General Civil Procedure) Rules 2025 (Vic), a minor starts a proceeding through a litigation guardian, usually a parent, who acts through a solicitor. Rule 15.08 says no settlement of a child's claim in a proceeding is valid without the court's approval. That rule exists to protect your child.

A mother may have her own claim as the patient, for injury to her during labour or delivery. That claim follows the adult rules, generally three years from discoverability under section 27D of the Limitation of Actions Act 1958 (Vic), so it can expire long before your child's.

Either parent may also have a claim for their own psychiatric injury. Part XI of the Wrongs Act deals with mental harm. Section 73 allows a claim where the person witnessed the injury at the scene or is in a close relationship with the injured person. Section 72 requires a recognised psychiatric illness, and grief or distress on its own is not enough. Psychiatric injury claims explains those limits in more detail.

If your baby did not survive, the position is different, and stillbirth and neonatal death claims covers it.

How long do you have to claim for a child's HIE in Victoria?

The Limitation of Actions Act 1958 (Vic) treats a minor as a person under a disability (section 3(2)). For an injury to someone who was under a disability at the time, section 27E sets the limit. It is six years from the date the claim is discoverable, or twelve years from the act or omission, whichever ends first.

Discoverability is defined in section 27F. Time starts when a person knew or ought to have known that the injury occurred, that it was caused by the defendant's fault, and that it was serious enough to justify a claim. Under section 27J(3), while a child is in the custody of a capable parent, what the parent knows or ought to know is treated as what the child knows.

In practice, that means time is not paused until your child turns eighteen. For an HIE injury, the twelve-year long-stop generally runs from the care around the birth, so it can pass while your child is still in primary school. A court may extend a limitation period under section 27K where it is just and reasonable, weighing the matters in section 27L, but that is a weaker position than being in time. Time limits for medical negligence claims covers the general rules, and claiming after many years covers extensions.

Will the hospital tell you what happened?

It should. Since 30 November 2022, Victorian health services have had a statutory duty of candour when a patient suffers a serious adverse patient safety event. Safer Care Victoria says it entitles the patient and family to an apology, the facts of what happened and why, the health service's response, and the steps being taken to prevent it happening again.

An explanation from the hospital is not a finding about negligence, in either direction. It can still be a useful starting point, and you are entitled to ask for one.

What records show whether it was preventable?

The timeline decides these claims, and the timeline lives in the records. The documents that usually carry the answer are:

the antenatal record and any growth scans
the admission risk assessment and the labour notes, including the partogram
every CTG trace, with its times, and any notes about how it was classified and who was called
the decision-to-delivery record and the operation or assisted-birth notes
Apgar scores, the resuscitation record and the cord blood gases
the special care nursery or neonatal notes, including each Sarnat assessment and its time
the time of the call to PIPER, the time cooling started and the temperature chart
EEG reports and the MRI report

You have a right to your own records and your baby's, and you do not need a lawyer or a reason to ask. How to get your medical records in Victoria sets out how. Where the birth was in a public hospital, suing a Victorian public hospital explains who a claim is made against.

Where to start

You do not need to know whether the care was negligent before asking. That is the thing being assessed.

Start with what happened, in your own words, and whatever records you hold. A maternity and neonatal file for an HIE birth is long, and reading it against the guidance is the expensive part of investigating a claim. Our technology does the organising, and a lawyer reads the evidence and makes every legal decision. If the evidence supports a claim, you are told so. If it does not, you are told that plainly, and why. You can start a free assessment whenever you are ready, and what compensation can cover sets out the categories.

Common questions

Can you claim compensation for hypoxic-ischaemic encephalopathy (HIE) at birth in Victoria?

Yes, where the care in labour, at delivery or in the first hours after birth fell below what was widely accepted as competent practice, and proper care would probably have avoided some or all of the brain injury. Both parts need independent expert evidence. The claim belongs to the child and is brought by a parent or other adult as litigation guardian.

Is it negligence if cooling was not started within six hours?

Not automatically. Safer Care Victoria guidance says babies of 35 weeks or more with moderate-to-severe HIE should have cooling started between one and six hours of life, and only babies who meet its criteria are eligible. A claim needs proof that your baby met those criteria in time, that the delay fell below accepted practice, and that earlier cooling would probably have reduced the injury.

Does HIE mean the hospital did something wrong?

No. Safer Care Victoria lists possible causes of newborn encephalopathy that include infection, stroke, bleeding in the brain, brain malformations, metabolic disorders and genetic syndromes, as well as a lack of oxygen and blood flow around birth. The RANZCOG guideline notes that for many long-term neurological impairments, the injury was likely sustained during pregnancy, before labour. Whether an injury was avoidable is a question for expert evidence.

How long do you have to make an HIE claim for a child in Victoria?

Section 27E of the Limitation of Actions Act 1958 (Vic) allows six years from the date the claim is discoverable or twelve years from the act or omission, whichever ends first. Under section 27J(3), what a capable parent knows or ought to know counts as what the child knows. Time is not simply paused until your child turns eighteen.

Can parents claim for their own psychiatric injury after an HIE birth?

A parent may have a separate claim for a recognised psychiatric illness caused by what happened. Part XI of the Wrongs Act 1958 (Vic) allows it where the parent witnessed the injury at the scene or is in a close relationship with the child. Grief or distress on its own is not enough.

Sources

Legislation was checked on legislation.vic.gov.au on 29 September 2026: the Wrongs Act 1958 (Vic) at version 130 and the Limitation of Actions Act 1958 (Vic) at version 112 (both incorporating amendments as at 25 February 2026), and the Supreme Court (General Civil Procedure) Rules 2025 (Vic) at version 003.

Hypoxic-Ischaemic Encephalopathy (HIE) at Birth: Was It Preventable, and Can You Claim in Victoria?