Obstetric Malpractice Case Law Update

OBSTETRIC LAW UPDATE

Anna Walsh, Principal,

Medical Law Department

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Obstetric Law UpdatePage 2

Overview

• Snapshot of current obstetric cases at MB

• Recent obstetric malpractice case law

Factual issues

Joint conferences of expert witnesses

Causation

• Implications beyond Gett v Tabet

• Wrongful birth update


Snapshot of cases view

• Gynaecological injuries

Failure to cut episiotomy with forceps leading to 3rd/4th degree tears

VBAC leading to rupture of uterus

• Birth trauma

Syntocinon and fetal distress

Obstructed labour, failure to perform C/S

Birthing unit issues

• Post natal cases

Jaundice

Resuscitation

Hypoglycamia


Factual disputes

• Disputes re advice and information poor communication

• Fading recollections, cases brought years after event

• Defence advantage necessity to document

• Problem in practice often non existent, vague, poor,

incomplete, retrospective

• Leads to issues of credit who does the court believe?


Joint conference of experts

• Purpose: Identifies and narrows issues, shortens length of trial,

enhances prospects of settlement

• Procedure: Agreed questions put to experts to refine issues, a

joint report is produced

• At trial: Experts give evidence concurrently and are cross

examined


Joint conference of experts

• High cost

• Difficulty finding time for all experts to confer together

• Loss of control of process

• Possibility of expert changing opinion under pressure

• What about factual issues?


Case law examples: Hirst

• Hirst v Sydney South West Area Health Service

[2011] NSWSC 664

Trial occurred 10 years after event

Private obstetrician

Conversation with mother re an ‘unstable lie’

Poor documentation re consultations and plan

Defendant had no recollection of events

Mother had recollection of relevant events



• Factual issues:

What did the defendant mean to convey by noting ‘unstable

lie’ several times in the notes?

Did one entry say ‘scan’ or ‘seen’?

Why was a red dot put on the mother’s file?



• Judge‟s view of the Plaintiff‟s recollections

“The fact that a person may not have a good recall or

any recall of matters that, at least at the time, would

appear to be of not consequence does not mean that

they may not recall a conversation or an event which is

likely to have an impact on them at the time it occurs. I

am satisfied that Mrs Hirst remembers correctly the

substance of the conversation she had with Dr Browning

on 27 September.”



• Judge’s view of Defendant’s evidence

„Entirely reconstruction‟

„Not reliable‟

„In some respects, speculative‟

What is the impact on the experts’ opinions?



• Joint conference of expert witnesses

“Whilst the expert evidence from the obstetricians was very

useful in informing the Court of medical matters, its limitations

become clear when the experts were asked to opine on the

written records of Dr Browning and others…The answer to

these and other questions ultimately depend on evidence given

by Dr Browning and inferences that the Court draws from the

contemporaneous medical records although informed by the

matters of medical expertise provided by the experts” [para 82]



• Incomplete records of Defendant and non recollection of Defendantcan be helpful for the Plaintiff

• Experts in a conclave do not have the advantage of hearing all theevidence, and particularly the lay witness evidence

• Experts’ views as to the interpretation of the Defendant’s records arespeculation only and cannot be determinative of the facts

• Experts are not the arbiter of the facts

• The Plaintiff need not recall all facts for the court to be disposed topreferring that evidence on crucial facts


Case law examples: King

• King v Western Sydney Local Health Network [2011] NSWSC 1025

• Mother exposed to chicken pox from daughter at 14 weeks

• Saw obstetrician – discussion re VZIG, blood test, results referred for next visit

• Allegation: failure to give VZIG within 96 hours of exposure leading to CVS in baby

• Further attendances at Hospital and at GP

• Diagnosed with chicken pox 2 weeks later and treated

• Child born with CVS



• Hospital denied breach of duty and argued blood test and

referral of result consistent with good practice

• Hospital denied causation arguing exposure occurred over 96

hours previously

• Expert evidence: obstetrician, paediatric infectious diseases,

adult infectious diseases, geneticist, paediatric neurologist

• RANZCOG guidelines supported allegation re breach



• Allegation: failure to take precautions against risk of harm

Risk must be foreseeable

Risk was not insignificant

A reasonable person would have taken those precautions

• Would a reasonable person take precautions against that risk?

The probability that the harm would occur if care not taken

Likely seriousness of harm

The burden of taking precautions



• Causation

Must be on the balance of probabilities

Negligence must be a necessary precondition of the harm (factual

causation)

It is appropriate for the defendant’s liability to extend to the harm

so caused (scope of liability)



• Decision:

Hospital had breached its duty of care (consistent with majority of

expert opinions and protocols at time)

But, majority of expert opinion was that more than half people in

studies still can have CVS with timely treatment

Evidence at its highest revealed only a possibility of a better

outcome, not a probability

Plaintiff LOST


Case law examples: Gillett

Gillett v Robinson [2011] NSWSC 1143

• Obstetric hx; 1st birth c/s for persistent POP; 3rd birth stillbirth

• Conversation week prior to birth

– Mother: Can I have a Caesar?

– Dr: Is the baby bigger than the others?

– Mother: I don’t know

• Mother has high BP, admitted, induction of labour

• Fetal distress, type 2 deceleration, forceps, episiotomy

• Child has Erb’s palsy, born 1985



No documentation re this request for caesarean

Defendant did not recall events, relied on usual practice

Mother had recollection

Allegations of negligence

• Failure to do caesarean

• Failure to take into account obstetric history



Court did not find it necessary to rule on whether conversation

took place or not as experts agreed

Expert evidence: agreed that medical basis to support a

caesarean section at that time

Plaintiff argued that once requested, caesarean ought to have

been performed and it was not the role of the experts to say what

would have happened

Court disagreed, Plaintiff LOST


Case law examples: McLennan

McLennan v McCallum [2007] WADC 67

• Critical issue was whether the plaintiff presented as a footling or

frank breach when assessed by 1st defendant

• Documentary evidence included clinical entry; drawing; note

back to referring GP

• All experts agreed if there was a footling presentation, needed

to deliver by caesarean



What evidence exists regarding the assessment?

“The 1st defendant having performed ultrasound and

physical examinations was clearly in the paramount

position to assess and determine the breech

presentation. He sketched the presentation and knows

what he intended to depict. His contemporaneous report

to Dr Date following the first consultation identified the

presentation as an extended breech, consistent with his

evidence as to what he had drawn...” [para 236].



How were the Plaintiff’s experts briefed?

“…the views he expressed were clearly influenced by his conclusion that there was a footling breech presentation confirmed that his views were based on that premise, and the events timing from the hospital records. There were occasions during his evidence when he displayed a lack of objectivity…” [para 249]

• “…[His] report .. makes it very clear that his mind was closed to any position other than that the fetus was in the footling breech presentation.” [para 83].

• “…views were also clearly influenced by the belief that there was a footling breech presentation…” [para 251]



• No expert evidence that supports the Plaintiff’s assumption

• No lay evidence that supports the Plaintiff’s assumptions

• Contemporaneous documentation by the Defendant

• Need to show that the defendant’s documentation is false, in

error, demonstrating negligence

• Plaintiff LOST


Wrongful birth

• Pre conception negligence: eg failed sterilisation/contraceptive leading to

conception

• Post conception negligence: IVF, fetal abnormalities leading to lost

opportunity to undergo lawful abortion

• In both types, mother can claim for pain and suffering of going through

pregnancy and in ACT costs of raising child (disabled child in other

states)

• Anomalies

No compensation for child’s pain and suffering

IVF errors


Wrongful birth

• G and M v Armellin [2009] ACTA 6

Lesbian couple; IVF

Advice given: chances of multiple pregnancy increased with

transfer of more than one egg (0.1%); risk increased if 2 healthy

embryos transferred (25%)

G had procedure performed at Canberra Fertility Centre

She sued only Dr Armellin


Wrongful birth

• System:

Patient filled out nomination form re number of embryos to transfer

Centre to ask patient number of embryos to transfer

3 way conversation between Dr, patient and embryologist

• System not followed on this occasion:

G deferred decision to nominate

G told Dr Armellin to transfer 1 embryo

G under sedation so no 3 way discussion

Dr Armellin did not tell embryologist to transfer only 1 egg

• 2 embryos transferred; twin pregnancy


Wrongful birth

• Court held that G was patient of Dr Armellin

• He was professionall responsible for procedure

• Existence of system not brought to G’s attention

• Duty of care extended to doing all that was reasonable to

ensure that the procedure occurred according to G’s wishes

• Plaintiff WON, appeal, Plaintiff WON, appeal to HC –leave

refused


Questions

• 9261 1488

• www.mauriceblackburn.com.au

• [email protected]

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Date post:	26-May-2015
Category:	Health & Medicine
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Obstetric Malpractice Case Law Update

Health & Medicine