Stillborn tragedy: Health and Disability Commission forced to apologise, re-investigate baby death

Zoe and Miguel Daza were devastated after the Health & Disability Commissioner (HDC) declined to investigate the death of their daughter. Photo / Alex Burton

After a seven-year fight for justice, a couple have won a major apology from the country's health watchdog for failing to investigate the death of their daughter.

"We finally feel heard and understood ... it feels like a weight has been lifted off of our shoulders," Zoe and Miguel Daza told the Weekend Herald.

The West Auckland couple were left distraught after the Health & Disability Commissioner (HDC) declined to investigate their complaint about medical treatment leading to the stillbirth of their daughter in November 2013.

Commissioner Morag McDowell has now written to the Daza family saying she "sincerely regrets" the "unreasonably prolonged" assessment process.

Baby Irisa should be celebrating her 8th birthday this year with her two sisters and loving parents.

But she never got to be cradled in her mother's arms. When Zoe was 32 weeks' pregnant, her second child's heart stopped beating forever.

The tragedy struck a fortnight after Zoe suffered an antepartum haemorrhage (bleeding causing a serious complication to pregnancy) - but doctors refused to do an ultrasound saying it wasn't necessary and instead sent her home after blood tests and a night in hospital.

An independent specialist would later tell the HDC it was "likely, but not certain" baby Irisa might still be alive if the scan had been done.

"Irisa's eyes stayed shut so others may be opened. Those 'others' are all of us, the public, the media, the politicians, the HDC, and those yet to come," Miguel said.

The Commissioner's decision to decline to investigate came after three and half years of the HDC "assessing" whether it should, which the Ombudsman criticised as "unreasonable" and "concerning".

Since then, the Dazas spent about $15,000 on legal fees, as well as giving up years of precious time, to fight for their concerns to be take seriously.

"The biggest question on our minds was if [HDC] are doing this to us, how many other people has this been happening to," Zoe said.

"We knew our case was bigger than just us and baby Irisa. We cannot change the past but we must change how HDC conducts investigations so that future generations can have faith in the HDC."

Zoe and Miguel Daza's unborn child might have lived if an ultrasound had been done, a specialist says. Photo / Alex Burton

The couple's complaint, and two separate cases similarly dismissed by the health watchdog, were reviewed by Chief Ombudsman Peter Boshier. His findings harshly criticise the HDC, which was also ordered to apologise for how it handled the complaints.

The Health and Disability Commissioner at the time of the complaints was Anthony Hill, who held the position from 2010 until September last year, when he was replaced by Morag McDowell.

McDowell's letter to the Daza family said she "sincerely regrets" the "unreasonably prolonged" assessment process.

"I acknowledge that it is now more than seven years since the loss of your precious daughter Irisa ... I unreservedly apologise for the stress and impact that this had on you."

McDowell told the Weekend Herald she had decided to re-open the investigation.

The couple say they accepted the apology but believe it should have come from Hill who was in charge of the prolonged assessment and made the decision not to investigate.

"For us, accountability should fall on him and a meaningful apology should come from him," Miguel said.

Hill declined to comment yesterday, referring inquiries to the HDC.

Jenn Hooper's charity Action to Improve Maternity (AIM) has helped hundreds of families affected by poor maternity care, including negotiating complaint systems.

The biggest issue families had with the HDC was the lack of meaningful action after damning investigation findings, she said, but about six years ago that changed to the agency declining to do any investigation at all.

Hooper wants a wider investigation to determine how many people were wrongly denied an investigation by the HDC. That number would be very large, she expected - and the lost opportunity to identify and fix problems, at an individual and system-wide level, would mean others would have unnecessarily suffered.

Miguel said the saga had left him suicidal during their "David versus Goliath battle" with the HDC but it was his 6-year-old daughter who stopped him.

"She just happened to go to the backyard looking for me and asked me what I was doing. I snapped out of it and still to this day feel ashamed for letting myself get into a 'dark place', Miguel said.

"My daughter literally saved my life."

The Ombudsman's damning report criticises the watchdog for failing complainants by using a flawed triaging process, which meant it wrongly decided not to investigate cases.

It is likely to be hugely consequential - recommending an overhaul of how complaints are handled in the future, but also raising questions over how many people have had their complaints wrongly dismissed over at least the past decade. One patient advocate believes that number could be in the hundreds.

Boshier recommended the watchdog make an apology to the complainants, accepting "responsibility for the maladministration and harm caused", expressing sincere regret, and explaining actions "taken to redress the matter so that it will not be repeated".

The three complainants are not identified in the report. However, the Dazas agreed to speak exclusively to the Weekend Herald, in the hope their story will help others.

HDC carries out a "preliminary assessment" to decide whether to investigate complaints, and in this case paid an independent expert who concluded Daza received "substandard antenatal care because she did not have a scan to assess fetal wellbeing" after an ongoing and significant complication.

It was "likely, but not certain" the scan would have led to closer monitoring that "would probably" have changed the outcome of her pregnancy. The expert also found problems with the hospital's discharge processes, which were a "moderately severe departure" of the standard of care.

The DHB insisted a scan wasn't clinically necessary, and this was backed by a second expert who was asked for an opinion by the HDC.

The couple weren't comfortable naming the DHB as the case was now being re-investigated by HDC.

Daza submitted another expert opinion, which concluded she should have had a scan. However, in August 2017 the health watchdog decided not to investigate - a "preliminary assessment" that took three years and nine months.

"When we received that decision to take no further action we felt disillusioned and aggrieved," Zoe said.

In his investigation, Boshier noted legislation to allow HDC to triage complaints through a preliminary assessment was introduced after a 2000 review that nonetheless made clear "middle-range or serious" complaints would still be comprehensively investigated.

"There is no indication that Parliament intended this section to restrict the Commissioner's investigation of complaints to only a minority of the most serious matters," Boshier concluded.

"The HDC's interpretation of a section 33 preliminary assessment function appears at odds with its plain meaning, and legislative intent. This, combined with an absence of internal guidance material, appears to have resulted in practices that are out of step with the legislation."

HDC told Boshier complaints had surged by 40 per cent in five years, and to be fiscally prudent it kept investigations for the most serious matters.