"Why Didn't They Do a Caesarean Sooner?" Could My Baby's HIE Have Been Prevented?

Birth injury to babies · 18 min read · Published 28 October 2026 · Reviewed 28 October 2026 · Next review April 2027

By Dr Rosemary Listing, PhD (Law) · Medical negligence lawyer since 2013 · Of Counsel, Peter Evans & Associates

If you are asking whether your baby's HIE could have been prevented, you are not being ungrateful, vengeful or paranoid. It is one of the most common questions parents ask after HIE, and one of the most natural. In the parent communities I read, it comes up in many forms: Why didn't they do a caesarean sooner? The heart rate dropped and nobody did anything. I'd had a caesarean before; should I have been allowed to labour?

This guide doesn't answer that question for your baby. Nobody can without the records. But it will show you what the standard is, what an expert looks for, and how to find out.

HIE isn't always preventable, and sometimes it is

Let's start with the honest part. HIE can happen after care that was good from start to finish. Some events, such as a sudden cord prolapse or abruption, can cause injury in minutes, faster than any team could deliver a baby. Some injury may happen before labour starts. And a 2026 study from one tertiary NICU found that about 1 in 10 babies cooled for presumed HIE turned out to have a different cause, such as a metabolic or genetic condition.

But some HIE follows warning signs that were there to be seen. The NSW Legislative Council's Birth Trauma inquiry found in 2024 that much birth trauma stems from avoidable and preventable factors. In my experience, preventable HIE rarely comes from one dramatic mistake. It usually comes from a chain: a trace that was "a bit flat", a review that was delayed, a registrar busy in theatre, a decision to wait one more hour.

What the heart rate trace should trigger

RANZCOG, the college that trains and sets standards for Australian and New Zealand obstetricians, publishes the guideline Australian maternity units use for fetal monitoring. Its Intrapartum Fetal Surveillance guideline, fifth edition, was launched in September 2025 and updated in June 2026. Its summary booklet sorts features of the heart rate trace into four groups:

• Low probability of fetal compromise: for example, a stable baseline of 110 to 160 beats per minute, normal variability and no decelerations
• Unlikely to be associated with compromise on their own: for example, early decelerations or uncomplicated variable decelerations
• May be associated with compromise, requiring further action: for example, a fast baseline over 160, late decelerations or complicated variable decelerations
• Likely to be associated with compromise, requiring immediate management: for example, a slow heart rate (bradycardia) for more than five minutes, absent variability or a sinusoidal pattern

The booklet says any trace without the reassuring features "necessitate[s] further evaluation and escalation where required". When the heart rate is abnormal, it recommends continuous CTG, moving the mother off her back, stopping or reducing oxytocin if too many contractions are the cause, escalating "in time to the most senior clinician available", and considering further testing or expediting the birth if a significant abnormality persists. In NSW, the Ministry of Health's fetal heart rate monitoring guideline sets out how that applies in public hospitals.

The guideline also lists the situations in which continuous CTG should be offered, including excessive contractions, bleeding before birth, pre-eclampsia, a pregnancy of 41 weeks or more, meconium in the waters, infection of the membranes, a long first stage, and oxytocin used to speed labour. If any of those applied to you and you weren't continuously monitored, that is worth asking about.

The events parents name

The explorer above lets you tap through the events parents most often describe. A few need more explanation.

Oxytocin and too many contractions

Oxytocin (Syntocinon) is used to start or strengthen labour. Every contraction briefly reduces blood flow to the placenta, and a healthy baby recovers in between. With too many contractions, which RANZCOG defines as more than five in ten minutes ("tachysystole"), the baby may not get enough recovery time. That is why the guideline lists excessive uterine activity as a strong reason for continuous monitoring, and why reducing or stopping oxytocin is one of the first actions when the trace changes. In expert reviews, the oxytocin chart, showing when the rate was increased and whether it was turned down, is often as important as the CTG itself.

Labour after a caesarean

Many women give birth safely after a caesarean, and choosing to try is a reasonable decision. But a uterine rupture, where the scar tears open in labour, can starve a baby of oxygen within minutes. Good care starts long before labour: finding out what kind of cut was made last time, explaining the risks honestly, and planning how labour will be watched and how quickly the team can act.

That first step matters more than people think. In Elayoubi v Zipser [2008] NSWCA 335, the NSW Court of Appeal considered the case of a boy left with spastic quadriplegia and intellectual disability after his mother's uterus ruptured in labour. Her previous caesarean, at another hospital, had involved an incision that made any future vaginal birth risky. The court found the doctor and hospital managing the later pregnancy liable for failing to ask the first hospital about that operation, and the first hospital partly liable for not warning her.

Reduced movements before labour

The national Safer Baby Bundle, developed to reduce stillbirth, says women should seek review straight away if they are worried about their baby's movements, especially in the evening, rather than wait. It expects clinicians to examine the woman, including a CTG, and measures whether that CTG starts within two hours of arrival. If you rang the hospital and were told to wait until morning or your next appointment, that is something an expert would look at closely.

"The cord was around his neck"

Many parents are told this, and some are told it as if it explains everything. A cord around the neck is very common and is usually harmless. On its own, it doesn't mean anyone did anything wrong, and it doesn't usually explain HIE either. What matters is what the heart rate was doing, and what the team did about it.

Shoulder dystocia, cord prolapse and abruption

These are true emergencies, and the question for an expert is usually about two things: whether the risk was recognised beforehand, and how quickly and skilfully the team responded once it happened. My guide to shoulder dystocia and Erb's palsy explains that emergency in detail, and our birth injury map shows how these events injure mothers as well as babies.

What an independent expert looks at

Whether HIE was preventable isn't decided by how a birth felt, or by the hospital's own explanation. It's decided by independent experts reading the full records against the standards of the time. In an HIE case, they usually look at:

• the CTG trace itself, minute by minute, not just the notes about it
• the partogram and midwifery notes: who was in the room, who was called and when
• the oxytocin chart: rates, increases and reductions
• the timing of key decisions: when a caesarean or assisted birth was decided, and when the baby was born
• the paired cord blood gases, which RANZCOG recommends at any birth with evidence of fetal compromise or a baby born in poor condition
• the Apgar scores and resuscitation record
• the neonatal notes, including the hourly checks and when cooling started, which my guide to babies who weren't cooled explains
• the MRI pattern, which can point to a sudden event or a longer period of reduced oxygen, as my guide to reading the MRI and EEG explains
• the antenatal records, including previous births, scans and any calls about movements

Usually an obstetrician and a midwife comment on the labour, a neonatologist on the care after birth, and a paediatric neurologist or neuroradiologist on when and how the injury happened. My guide to getting the records and finding out what happened explains how to ask for all of this, and our guide to getting and reading your birth records covers the request itself.

Questions to ask the hospital · copy these into your phone

1. Can we have the full CTG trace, not just the notes about it?
2. When did the trace first show features of possible compromise, and who reviewed it?
3. When was a senior doctor called, and when did they arrive?
4. Was oxytocin used? Can we see the rate chart?
5. When was the decision made to deliver, and what time was our baby born?
6. Were paired cord gases taken? What were the results?
7. Has our baby's birth been reported as an incident, and is it being reviewed?
8. Can we meet to hear the findings when the review is finished?

The hospital's own review

Many parents don't know that the hospital may already be looking at what happened. In NSW, the ACI's HIE guide asks hospitals to report babies who are cooled or have moderate or severe HIE through the incident system, and the Incident Management policy requires serious incidents to be reviewed and the family invited to hear the findings. Under the Australian Open Disclosure Framework and NSW's open disclosure policy, the hospital should talk to you honestly when a patient has been harmed.

A hospital review is useful, but it isn't independent, and its findings are often written cautiously, as "opportunities for improvement" rather than failures. If you want an independent body to look at the care, the NSW Health Care Complaints Commission handles complaints about health services and practitioners. Our guide to making a complaint after a traumatic birth includes a free template, and you can also ask for a birth debrief.

How the law decides whether HIE was preventable

"Preventable" has a specific meaning in law. Broadly, a claim for HIE has to show three things.

1. The care fell below the accepted standard. In NSW, section 5O of the Civil Liability Act 2002 says a professional isn't negligent if they acted in a way widely accepted in Australia by peer professional opinion as competent practice, unless that opinion is irrational. So the question isn't whether a different decision would have been better in hindsight. It is whether what was done was within the range of competent practice at the time. Guidelines like RANZCOG's are strong evidence of what that range is, but they aren't the whole answer.

2. That failure caused the injury, or made it worse. Under section 5D, it has to be shown that the injury would probably have been avoided, or been less severe, with proper care. In HIE cases this usually turns on timing: if the baby had been born 30 or 60 minutes earlier, would the injury have happened? That is where the CTG, the cord gases and the MRI pattern come together.

3. Information was part of the care. In Rogers v Whitaker, the High Court held that patients must be told of material risks. In birth, that includes the risks of a vaginal birth after caesarean, of induction, and of the alternatives, so that you can choose. Elayoubi v Zipser shows how a failure to find out and pass on information can be as serious as a failure in the delivery room.

Time limits apply, and they work differently for children. Our guide to NSW time limits sets out the general rules, and my guide to time limits and compensation for a baby's HIE claim explains how they apply to your child.

In my practice

When families ask me whether their baby's HIE was preventable, I tell them the truth: I don't know yet, and nobody does until the records have been read by independent experts. Sometimes the answer is that the care was good and the injury couldn't have been avoided. I tell families that just as plainly, and many find it a relief.

But my doctoral research, and years of reading birth records, have shown me how often the answer is a chain of small things. The pattern I see most is a trace that moved into a worrying category and stayed there while the system around it was slow: a midwife who was concerned but couldn't get a senior review, an oxytocin rate that kept going up, a phone call that ended in "wait". Each link looks small. The guidelines exist because, together, they don't.

Both/and: grateful and still asking

Both things are true. The people who resuscitated and cooled your baby may have saved their life, and you can feel deep gratitude to them. And you can still ask whether the hours before that went the way they should have. Asking is not an attack on the NICU, or on the midwife who held your hand. It is how families get answers, and how hospitals learn.

The bigger picture

Fetal monitoring has been at the centre of Australian maternity safety work for decades, because so many preventable birth injuries come back to a trace that wasn't escalated in time. RANZCOG runs a national fetal surveillance education program for that reason, and its current guideline calls for escalation "in time to the most senior clinician available". NSW's HIE guidance grew out of a consensus statement by the Clinical Excellence Commission, and the Birth Trauma inquiry heard repeatedly from parents who had to fight for information about their own births. When families ask questions, those systems get better.

Support

• Miracle Babies Foundation: NurtureLine 1300 622 243, 24 hours.
• Life's Little Treasures Foundation: information and peer connection.
• PANDA (Perinatal Anxiety & Depression Australia): 1300 726 306, or panda.org.au.
• Birth Trauma Australia: birthtrauma.org.au.
• Our guide to finding support after birth trauma, and my guide for parents who keep replaying the birth.

Nadia told me the hardest part wasn't reading the records. It was the years before, when the only place the question lived was inside her own head. "I thought if I'd just said it louder," she said. If you are carrying a question like hers, I hope you know that it isn't yours to answer alone, and that the people whose job it was to listen can be asked, now, what they heard.

With care,
Rosemary

Back to the guide: HIE after birth: a guide for parents

Frequently asked questions

References

• Royal Australian and New Zealand College of Obstetricians and Gynaecologists. Intrapartum Fetal Surveillance (C-Obs 1), 5th edn, launched September 2025. ranzcog.edu.au
• RANZCOG. Summary Booklet: Intrapartum Fetal Surveillance Clinical Guideline, version 5.2, June 2026. ranzcog.edu.au
• NSW Health. Guideline GL2018_025, Maternity: Fetal Heart Rate Monitoring. health.nsw.gov.au
• Centre of Research Excellence in Stillbirth. Safer Baby Bundle Handbook and Resource Guide. stillbirthcre.org.au
• NSW Agency for Clinical Innovation. Hypoxic ischaemic encephalopathy in newborns: recognition, monitoring and early management, June 2024. aci.health.nsw.gov.au
• Clinical Excellence Commission. NSW Consensus Statement: Newborn Hypoxic Ischaemic Encephalopathy. cec.health.nsw.gov.au
• Alternative diagnoses in neonates undergoing therapeutic hypothermia for presumed hypoxic–ischemic encephalopathy. PubMed Central
• NSW Health. Policy Directive PD2020_047, Incident Management. health.nsw.gov.au
• NSW Health. Policy Directive PD2023_034, Open Disclosure. health.nsw.gov.au
• Australian Commission on Safety and Quality in Health Care. Australian Open Disclosure Framework, June 2026. safetyandquality.gov.au
• Legislative Council Select Committee on Birth Trauma (NSW). Birth trauma. Report, 2024. parliament.nsw.gov.au
• Civil Liability Act 2002 (NSW), ss 5D and 5O. legislation.nsw.gov.au
• Rogers v Whitaker (1992) 175 CLR 479; [1992] HCA 58. austlii.edu.au
• Elayoubi bhnf Kolled v Zipser [2008] NSWCA 335 (NSW Court of Appeal).

Stories in this article are composites drawn from many families' experiences and have been changed so that no one can be identified. They do not describe any individual client.