Elayoubi BHNF Kolled v Zipser & 2 Ors - [2007] NSWSC 587 - NSWSC 2006 case summary — Zoe

NSWNSWSC

Elayoubi BHNF Kolled v Zipser & 2 Ors

[2007] NSWSC 587

Supreme Court of NSW|2006-05-31|Before: Hislop J, Ms J, Mason J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2006-05-31

Before

Hislop J, Ms J, Mason J

Catchwords

Torts - Personal injury - Medical negligence - Birth injury.

Source

Original judgment source is linked above.

Catchwords

Torts - Personal injury - Medical negligence - Birth injury.

Judgment (62 paragraphs)

[1]

Introduction 1 The plaintiff is the fifth child born to Tamam Kolled ("TK"). He was born on 13 October 1984 at Bankstown Hospital ("the hospital"). He suffers from spastic quadriplegia and intellectual disability. It is common ground that his condition is the result of deprivation of oxygen during the birth process consequent upon a uterine rupture. 2 On 31 October 1978 TK's fourth child, Wassif, was born by caesarean section at the Preston and Northcote Community Hospital ("PANCH") in Victoria. At the time of birth TK was 35½ weeks pregnant. The plaintiff alleges that the caesarean section was performed by a vertical incision which involved the upper segment of the uterus, that the incision created an increased risk of uterine rupture in the event of a subsequent pregnancy and that that risk became reality shortly before the plaintiff's birth. 3 The plaintiff seeks damages for his condition which he alleges was caused by the negligence of each of the defendants. 4 The first defendant is sued as a specialist obstetrician/gynaecologist and visiting medical officer to the hospital. He saw TK in the antenatal clinic on 31 July 1984. It is alleged he failed to provide reasonable care on that occasion. 5 The second defendant is sued as the organisation liable for any claim arising from the operation, control and management of the hospital. The plaintiff alleges, in essence, the hospital was negligent in relation to the antenatal treatment it provided, in failing to admit for early confinement and in the treatment afforded on 12 and 13 October 1984. 6 The third defendant is sued as the body responsible for any claim arising from the operation, control and management of PANCH. The plaintiff alleges, in essence, that PANCH was negligent in failing to advise and warn TK as to the risk implications of the caesarean section she had undergone and in failing to inform her referring general practitioner of the nature of that procedure. 7 Each of the defendants has accepted that he or it owed a duty of care to the plaintiff but has denied any breach of duty or, if there was breach of duty, that such breach was causative of the plaintiff's condition. 8 The High Court in Rogers v Whitaker (1992) 175 CLR 479 at 483 held: The law imposes on a medical practitioner a duty to exercise reasonable care and skill in the provision of professional advice and treatment. That duty is a "single comprehensive duty covering all the ways in which a doctor is called upon to exercise his skill and judgment"; it extends to the examination, diagnosis and treatment of the patient and the provision of information in an appropriate case. … The standard of reasonable care and skill required is that of the ordinary skilled person exercising and professing to have that special skill …

[7]

20 In 1981 she and her husband returned to Sydney. 21 In 1984 she became pregnant with the plaintiff. The pregnancy progressed normally. She was referred to the antenatal clinic at the hospital by a general practitioner, Dr Quidwai. She told Dr Quidwai that her menstrual periods were always regular and when her last menstrual period had been. On her first visit to the hospital she attended the antenatal clinic where she saw the first defendant. The first defendant carried out an examination of her and examined all her stomach. He asked about the operation scar on the stomach and she said it was "… because I had baby". She told the first defendant the reason for the operation was the baby was lying sideways. She told him the location of the hospital where she had had the operation. She confirmed that she was able to remember the name of the hospital. She was not told by the first defendant or any other person at the hospital that she was to come in immediately to the hospital at the sign of the first contraction. 22 Her understanding after the consultation with the first defendant was that the pregnancy would be managed as a normal pregnancy and that there would be a normal vaginal birth. 23 At 9pm on Thursday 12 October 1984 she began to feel contractions. These felt no different from the contractions she had experienced in respect of her other children. She was not concerned to get to the hospital quickly at that stage and continued to serve in the shop which she ran with her husband until 10pm. The shop closed at 10pm and her husband moved the sales items from outside and the shop was shut at about 10.20pm. The family then went to their home which was in the next street. There she washed Wassif, dressed him in his pyjamas, checked her bag and said to her husband "We'd better go". Her husband drove her to the hospital, the trip took about 10 - 15 minutes. Between 9pm and the shutting of the shop the contractions started coming, but not very quickly. "During the journey the contractions were just starting heavier." She agreed the contractions were "a progressive sort of thing" and they started to become very heavy. This occurred after 10pm when she was at the hospital. 24 At the hospital she went to the front desk. A nurse was called and she was taken to a room where she was asked to sit on a bed. The nurse examined her. She complained she had a knife-like pain in the stomach. She said she had never experienced pain of that sort before. She told the nurse of the pain. The nurse gave her cotton wool and told her to clean her nails. The nurse then drew the curtains and walked away. TK was screaming and did not remember anything after that. She thought she passed out. Her next memory was of waking up and being told by a doctor that she had a boy but he was not normal.

[17]

44 The information in the birth register was, as a matter of general practice, completed by the midwife present at the birth. There was no direct evidence as to the source of the information contained in the birth register entry for Wassif. Sister Orrock gave evidence that such entries were normally taken from the obstetric notes. Mr Clements said the information would be obtained from the obstetric notes rather than the paediatric notes but that, in his experience, midwives made the entry from their own observations of the operation and that a precise description of the caesarean section was not necessary for the birth register or the paediatricians. The source of the entries in the paediatric records was unclear though unlikely to have been the operation notes. 45 There was also evidence, which was not disputed, that many nurses use the expressions LSCS or LUSCS to describe any caesarean section irrespective of its nature. In these circumstances the available documentary evidence from PANCH cannot be regarded as conclusive as to the nature of the caesarean section performed on 31 October 1978. 46 It is thus necessary to have regard to other evidence in order to determine the nature of the caesarean section performed on 31 October 1978. That evidence, primarily, was as follows: (a) Dr Simpson, who delivered the plaintiff, was an experienced obstetrician and gynaecologist. He recorded in his operation note "Ruptured uterus - previous classical caesarean section"; (b) Dr Booth, who assisted at the plaintiff's delivery, was also of the opinion there had been a rupture of a previous classical caesarean section. She gave evidence that on operation she observed adhesions from the bladder to the uterus; (c) The histopathology report dated 23 October 1984 stated: MACROSCOPIC … There is a ragged longitudinal tear running the full length of the anterior wall of the uterus. On each side of the tear there are dense adhesions on the surface of the uterus. Along one edge of the tear there is a smooth depressed area suggestive of old scar tissue. The lining of the uterus is roughened. MICROSCOPIC Sections from the lining of the uterus show some residual decidua. The myometrium generally shows mild oedema. Sections from the torn areas confirm the presence of adhesions on the surface and also show some fibrosis and degenerate muscle. The endocervical tissue is oedematous and congested, and also shows a moderate acute inflammatory infiltrate. The distribution of adhesions and fibrosis is consistent with the history of previous classical caesarean section. (d) Mr Clements gave evidence that the pathology report established the uterine incision extended considerably into the upper segment and the adhesions from the bladder to the uterus were consistent with a vertical incision to the lower segment. He concluded on the balance of probabilities that the caesarean section performed at the delivery of Wassif was a classical caesarean section. He saw nothing in the pathology report which led him to conclude the incision was other than vertical. (e) Dr Lyneham, largely relying upon the report of adhesions from bladder to uterus, considered it extremely likely that the predominant part of the incision had been to the lower segment though he accepted that an incision to the lower segment may well have extended to the upper segment of the uterus. (f) Dr Molloy considered there had been a transverse incision of the lower segment which extended vertically into the upper segment. 47 In my opinion, the probabilities favour the conclusion that the caesarean section involved a vertical incision into the lower segment of the uterus which extended vertically into the upper segment, and I so find. Was TK given appropriate advice and warnings in respect of the operation and its consequences? 48 The alleged breaches by the third defendant are particularised in the Further Amended Statement of Claim, dated 19 December 2006, in the following terms: (a) Failing to advise the Plaintiff's mother of the high risk following classical caesarean section. (b) Failing to advise the Plaintiff's mother of the need to inform her present and future treating practitioners of the fact that she had undergone a delivery by classical caesarean section. (c) Failing to advise the Plaintiff's mother's treating practitioners of the fact that she had undergone a delivery by classical caesarean section. (d) Failing to warn the Plaintiff's mother that she had or may have a significantly higher than normal risk of uterine rupture in late pregnancy or during birth. (e) Failing to warn the Plaintiff's mother that future vaginal delivery was contra-indicated due to the significantly higher than normal risk of uterine rupture in late pregnancy or during birth consequent upon her having undergone a delivery by classical caesarean section. 49 It was common ground among the medical experts, and the third defendant accepted, that reasonable care required that a patient upon whom a classical caesarean section was performed should be informed at the hospital where the operation took place of the nature of the procedure performed, and the risks arising from that procedure in the event of future pregnancy. She should be advised that she should inform those treating her for subsequent pregnancies of the nature of the procedure performed. Such advice and warnings should be clear and appropriate efforts should be made to ensure they were understood. Similar advice and warnings were required where an incision into the lower segment of the uterus extended vertically into the upper segment. 50 It was submitted that PANCH should have given such information to TK both orally and in writing. No written document containing such information was given to TK. Dr Bhardwaj gave evidence it was not the practice in 1978, or today, to give patients a written document setting out details of the procedure performed and advice and warnings as to any consequences resulting therefrom. Mr Clements gave evidence that it was a common, but not uniform, practice to provide a written record for the patient. In my opinion it has not been established that there was a duty in 1978 to provide a written record to the patient. Further, there was no direct evidence any such document would have been retained by TK particularly with her move interstate nor was it established that if such document had been retained by TK and given to the hospital it would have resulted in the harm to the plaintiff being avoided.

[18]

51 The third defendant did not adduce any direct evidence as to the advice or warnings, if any, given to TK. Dr Bhardwaj gave evidence that in 1978 it was her usual practice to discuss matters of importance with the patient following an operation. She would discuss the operation and its consequences. She had been taught that where there was a classical caesarean scar she was to make the patient aware that she had such a scar, that a vaginal delivery was fraught with danger and that she must make her future obstetrician aware of such a scar. She was aware of the possibility of a misunderstanding and the need to endeavour to be understood by the patient. If there was a language problem an interpreter would be used. She used non technical language when discussing matters with patients. I accept the evidence of Dr Bhardwaj as to her usual practice in 1978. I also accept TK's evidence that she did not have problems understanding what was said to her in English. 52 Dr Bhardwaj said it was not possible she would not have seen TK in the 10 days TK remained in the ward post operatively, though she agreed that on occasions she had been mistaken for a member of the nursing staff by patients. 53 Dr Bhardwaj gave evidence that in 1978, in addition to her discussing the operation and its consequences with the patient, it was the usual practice for the surgeon who had operated to discuss with the mother the dangers of future vaginal delivery in the event of a classical caesarean or a lower segment caesarean with a vertical incision into the upper segment. There was no evidence Dr Dawson gave any advice or warning to TK. Dr Dawson was not called by the third defendant to give evidence. It was conceded he was available. 54 In her evidence TK denied that any advice or warnings were given to her at PANCH, she denied she had had a placenta previa. However the hospital's antenatal card relating to TK recorded "placenta previa". The only source for such information, on the evidence, was TK. She had told Mr Clements the midwives at PANCH had told her she had had a placenta previa. It is arguable that it would be expected that if TK was given this information then appropriate warnings and advice would have been given to her at the same time particularly if she had mistaken Dr Bhardwaj for a member of the nursing staff. 55 There was, however, support for TK's assertion that no advice or warnings were given to her at PANCH in the fact she did not inform the first defendant or the hospital of the nature of the caesarean section performed at PANCH or that she had been warned not to undergo a vaginal birth. After the plaintiff's birth Dr Booth asked TK "was she aware that she had had a previous classical caesarean up and down and that she required delivery by caesarean in the future". TK replied in the negative, an answer which impressed Dr Booth as genuine. 56 Possible explanations for TK not informing the first defendant or the hospital of the nature of the previous caesarean section require consideration. They are: (a) Drs Dawson and Bhardwaj did not appreciate the incision had encroached upon the upper segment. If this was so a warning would not have been considered necessary or given. Dr Booth gave evidence that sometimes a surgeon may encroach upon the upper segment without being aware he had done so. However Dr Bhardwaj said an operating surgeon would be well aware if a lower segment incision encroached into the upper segment. Dr Lyneham accepted a surgeon would have "a pretty good idea" whether he had encroached into the upper segment or not; (b) Dr Bhardwaj may have departed from her usual practice on this occasion for some reason, now forgotten, and failed to give the appropriate advice and warnings. Dr Dawson may have relied upon Dr Bhardwaj to give the advice and warnings; (c) TK may have been given an appropriate warning, understood and remembered it, but have been afraid to speak up when she saw the first defendant or on other visits to the hospital's antenatal clinic. I consider this unlikely. TK did not appear to me to be the type of woman who would be shy where the welfare of her children was concerned and particularly where what was being contemplated was a vaginal delivery, the very matter against which she would have been most strongly warned had a warning been given; (d) TK may have been given an appropriate warning, understood it, but later forgot it. Whilst this is possible there was evidence that mothers tended to remember and heed advice when it concerned the welfare of their children. I accept that evidence and would apply it particularly to TK whose concern for the welfare and care of the plaintiff was obvious; (e) TK may have been given an appropriate warning but failed to fully comprehend it and for that reason not remembered it. This may have been a consequence of Dr Bhardwaj perhaps been mistaken for a member of the nursing staff so that TK did not listen as carefully as she would have if the warning and advice had been given to her by someone who was obviously a doctor. However this would be unlikely having regard to the care which Dr Bhardwaj took to ensure her warnings were understood.

[23]

Group A (22) During the course of the Plaintiff's ante-natal attendances at the hospital, neither the First Defendant nor the Second Defendant, its servants and agents: (a) Identified that the Plaintiff's mother had previously undergone classical caesarean delivery. (b) Identified that the Plaintiff's mother may have previously undergone classical caesarean delivery. (33) (a) Failing to take a proper history. … (c) Failing to take any or any sufficient notice of: (i) The recorded history of placenta praevia in relation to the Plaintiff's mother's pregnancy with her son Wassif. (ii) The vertical scar on the Plaintiff's mother's abdomen resulting from the birth of her son, Wassif. (iii) Certifying that the Plaintiff's mother was fit for a trial of labour without sufficient information about her prior obstetric history. (f) Writing "LSCS": (i) As shorthand for caesarean delivery. (ii) When the Plaintiff's mother had not referred to any particular form of caesarean section delivery in relation to the birth of her son Wassif. (g) Failed to assume with the history given and in the absence of the Plaintiff's mother's medical notes in relation to the 1978 pregnancy that it was a "classical caesarean section". 67 The first defendant has no recollection of his consultation with TK. His evidence was based on his usual practice and the antenatal records. 68 The first defendant said he would have been given and read the antenatal records prior to examining TK. He thus would have been aware that TK had had a placenta previa with Wassif, that she had undergone a caesarean section which was described as LSCS, that the caesarean section followed previous vaginal births, and that it was proposed that there be a trial of labour. 69 No written documentation from PANCH or the referring general practitioner in relation to the pregnancy with Wassif was produced to the hospital or the first defendant. The referring letter from Dr Quidwai contained no information relating to the previous caesarean section. 70 A classical caesarean section was rare. A lower segment caesarean using a vertical incision of the lower segment was rarer still. A transverse lower segment incision extending vertically into the upper segment was also rare. The description on the antenatal card of a previous LSCS was suggestive that the usual transverse incision confined to the lower segment had been made.

[24]

71 It was common ground the first defendant examined TK's abdomen and observed the scar and was told by TK that the scar was the result of the birth of Wassif. 72 It was common ground that a vertical incision into the abdomen was not unusual in 1978, and that a vertical abdominal scar would not raise a major suspicion on its own that a classical caesarean had been performed. 73 The first defendant said his usual practice in 1984 was to look at the original reason for the caesarean section. In this case the recorded reason for the caesarean section was "placenta previa". He would have confirmed with TK that that was the reason for the caesarean section and would have told her that as the placenta previa was a non-repetitive course she had the choice of trying for a vaginal delivery or having a repeat elective caesarean section. He would confirm with the patient that everything had gone normally post operatively. 74 The first defendant did not regard a placenta previa as an indication for a classical caesarean section. He had never seen or done a classical caesarean section for a placenta previa. In his opinion the standard operation for a placenta previa was a lower segment caesarean section. Dr Lyneham considered that a placenta previa was a possible reason for a classical caesarean section. Mr Clements considered a placenta previa, if anterior, could create an indicator for a classical caesarean but accepted that most obstetricians would still incise the lower segment transversely and that was what was advocated in the text books. In his opinion the presence of a placenta previa raised a possibility, but no more, that a classical caesarean section had been performed. In my opinion it was not unreasonable for the first defendant to discount the presence of a placenta previa as an indication of a classical caesarean section. 75 TK gave evidence she told the first defendant the reason for the caesarean section was that Wassif was lying sideways immediately before his birth. A nurse's note in relation to Wassif's birth refers to "emergency LUSCS for transverse lie …". However, I do not accept TK gave this information to the first defendant for the following reasons: (a) The first defendant gave evidence that in his opinion the only indication for a classical caesarean section is an impacted transverse lie. The importance of a transverse lie in this context was confirmed by Mr Clements who stated that a transverse lie was by far the most potent of the factors for a classical caesarean section, and Dr Lyneham who said that a transverse lie increased the likelihood of a vertical incision. (b) The first defendant gave evidence TK would not have told him that Wassif had been lying sideways as, if he had been so informed, he would have noted this important matter on the antenatal record. The antenatal record contained no such note. (c) No reference to a transverse lie had been noted on the antenatal card by those who had made notes on the card previously. (d) TK did not tell Mr Clements that Wassif was lying sideways. She did however tell him that there was a placenta previa although she denied in her evidence that she had ever known this or told any doctor of it. 76 Thus the indicator to the first defendant of a classical caesarean section, an impacted transverse lie, was absent. 77 Mr Clements gave evidence that if TK had been properly warned at PANCH he would have expected her to have informed the hospital of the warnings given to her. Dr Molloy said that in his experience women had no problem in remembering to inform subsequent treating doctors of these matters. Dr Lyneham said that a subsequent treating doctor would rely upon the previous warnings being recounted by the patient. The first defendant and the second defendant were not told by TK of any warnings. 78 The first defendant said he would not ask TK had she had a classical caesarean section because that would not have occurred to him. If he had asked, TK, presumably, would have answered in the negative or that she did not know. 79 In my opinion, the evidence before the first defendant at the consultation with TK was not such as should have caused the first defendant to conclude or assume that TK had previously undergone a classical caesarean section or a lower segment incision extending into the upper segment. The probability on the information before him was that TK had undergone a transverse lower segment incision with no involvement of the upper segment. I do not consider that, having regard to the state of the information available to him the first defendant was acting unreasonably in contemplating a trial of labour or in leaving the papers marked "LSCS" or that his action evidenced an absence of reasonable care.

[25]

80 No additional information was gained subsequent to the examination on 31 July 1984 to alter this assessment prior to the birth. Group B (22) During the course of the Plaintiff's ante-natal attendances at the hospital, neither the First Defendant nor the Second Defendant, its servants and agents: (d) Wrote to or contacted the Third Defendant to obtain a copy of the obstetric records in relation to the Plaintiff's mother's prior delivery of 31 October 1978. (33) (e) Failing to contact the Northern Hospital in Epping, Victoria where the Plaintiff's brother Wassif was born in order to ascertain the type of caesarean section by which Wassif was delivered. 81 The first defendant gave evidence that it was his usual practice with any form of previous caesarean section to write to the previous hospital where the procedure had been performed seeking details. As there was no copy of such a letter in TK's hospital file he conceded the likelihood was he had not written to the previous hospital on this occasion. The only reason he could suggest for that was that TK had not been able to tell him the name and address of the previous hospital where Wassif had been born. However it is unlikely TK would have forgotten where Wassif was born particularly as she had attended the antenatal clinic there on a number of occasions, had been admitted for a blood transfusion and had attended there following Wassif's birth. She said, in evidence, she had told the first defendant its location and that she was able to remember its name. Her evidence in this regard was not challenged. I accept it. 82 The failure to send such a letter gives rise to three issues (a) were the first and second defendants under a duty to seek additional information from the previous treating hospital?; (b) if such information had been sought would it have been supplied and (c) what would the content of the information supplied have been? 83 Dr Molloy considered that there was an obligation to write to the previous hospital in the event of any type of prior surgery notwithstanding the quality of history given by the patient. Mr Clements considered it was good practice with a person presenting with a history such as TK's and a vertical scar to enquire of the previous hospital but he would often accept a patient's history, when it was clear, without writing to the previous hospital. Dr Lyneham would not write to the previous hospital if he obtained a history with which he could feel satisfied. However he would have made an enquiry if he had received a history of a vertical incision, placenta previa and a transverse lie. Mr Clements observed that many doctors did not write in any circumstances. Dr Hinde was of the opinion that proper practice would have been to write if a trial of labour was proposed. 84 In Rogers v Whitaker (1992) 175 CLR 479 at 487 and 489 the High Court held: In Australia, it has been accepted that the standard of care to be observed by a person with some special skill or competence is that of the ordinary skilled person exercising and professing to have that special skill. But, that standard is not determined solely or even primarily by reference to the practice followed or supported by a responsible body of opinion in the relevant profession or trade … Whether a medical practitioner carries out a particular form of treatment in accordance with the appropriate standard of care is a question in the resolution of which responsible professional opinion will have an influential, often a decisive, role to play. 85 The possibility that TK had undergone a caesarean section which involved an incision into or extending into the upper segment was slight, on the material before the first and second defendants, but could not be excluded. A trial of labour was proposed. That would be inappropriate and potentially dangerous to the plaintiff if TK had undergone a classical caesarean section or one where the incision extended into the upper segment. The inconvenience and expense of writing to the other hospital would have been minimal, indeed it was the first defendant's usual practice to do so. I accept Dr Hinde's opinion that in the circumstances, as a trial of labour was proposed, the first or second defendant should have written to PANCH seeking details of the previous surgery. I find the failure to do so evidenced a lack of reasonable care.

[26]

86 There was affidavit evidence from Dr Leslie, the former Medical Director of PANCH between 1977 and 1991 as follows: Upon receipt of a request for a patient's obstetric history, either the Deputy Medical Director or myself would review the patient's complete medical file which comprised the admission and discharge summaries, operation notes and anaesthetic records, progress notes and the clinical notes of treatment, including the mode of delivery, and any significant medical information. I am aware, and was so aware in 1978, of the difference between a lower segment caesarean section and a classical caesarean. If a patient had undergone a classical caesarean, the operation notes completed by the obstetrician and contained in the patient's file should clearly state this. I am aware, and was so aware in 1978, that if a patient had had a classical caesarean that it was imperative that that fact be included in any obstetric history report provided by the hospital. Then either the Deputy Medical Director or myself would dictate a response to the inquiry that we would then provide to our secretary to type up. To the best of my recollection these responses were completed within 2 or 3 days of receipt and were posted back to the requesting hospital or Medical Practitioner within less than a week. 87 That evidence of Dr Leslie was not challenged and I accept it. As TK's obstetric file was not destroyed until 1994 I accept that a request from the first or second defendant to PANCH would have been responded to by Dr Leslie or the third defendant's Deputy Medical Director. 88 The remaining issue is what would have been the content of the information supplied. 89 The first and second defendants submitted that the obstetric file and operation note would refer only to "LSCS" as that is what Dr Dawson understood he had done. 90 That submission was based, in part, upon a letter of instruction from the third defendant's solicitor to a qualified doctor which said: We are instructed that according to the birth register extract the Plaintiff's mother was attending Dr Ashton's public antenatal clinic. Dr Barry Dawson was the consultant 'on call' who performed a lower segment caesarean section for antepartum haemorrhage due to placenta previa combined with a breech presentation at 35½ weeks gestation with ruptured membranes at 07.20 hours on 31 October 1978. Further the paediatric notes for Wassif Elayoubi record in a number of places the delivery was by LUSCS, ie lower uterine segment caesarean section which would appear consistent with the birth register extract which records the mode of delivery as LUSCS. We are further instructed it is likely this caesarean section was performed through a midline vertical abdominal incision on the plaintiff's mother's abdomen. The reason to use the vertical abdominal incision in the operation on 31 October 1978 would have been that there was placenta previa and an abnormal presentation of the foetus with ruptured membranes. The vertical incision through the abdomen allowed for extension of the incision if necessary due to difficulty in extracting a baby 'trapped in the uterus' by abnormal lie with all the liquor drained out. 91 I was asked to infer from that letter that Dr Dawson instructed the solicitors for the third defendant that the procedure was a lower segment caesarean section performed through a vertical incision. In my opinion a fair reading of the letter does not enable me to infer that the source of the "further instructions" was Dr Dawson or that the incision to the uterus (as opposed to the abdomen) was of a particular type.

[27]

92 Nevertheless, I am not satisfied on the balance of probabilities that the response from PANCH would have indicated other than a lower segment caesarean section for the following reasons: (a) No Jones v Dunkel inference is available against the first or second defendant in respect of this issue; (b) Mr Clements gave evidence that if a doctor had undertaken an LSCS with a vertical uterine incision it would be probable the operation would be recorded as "LSCS" but the vertical part of it was sufficiently unusual to demand a special note. There was however no evidence that there was any established practice of including a special note and there was no evidence Dr Dawson would have done so; (c) Dr Dawson may have been aware of an encroachment into the upper segment but may not have noted it either by oversight or because his practice was to only record the primary surgery; (d) The relevant entry in the birth record provides some support for the conclusion that Dr Dawson may have recorded, on the operation notes, no more than that the procedure was a lower segment caesarean section; (e) Dr Leslie was the Medical Director of PANCH. He was a qualified medical practitioner but seemingly not an obstetrician. His affidavit evidence (see [86]) above relevantly goes no further than indicating that he distinguished between a lower segment caesarean section and a classical caesarean, that the operation notes completed by the obstetrician should clearly state if the patient had had a classical caesarean and that fact would be included in any obstetric history provided by the hospital. However the operation upon TK was to the lower segment and would have been noted as such. It was not a classical caesarean as normally understood and would not have been so described in the operation notes. In my opinion it is unlikely that Dr Leslie or his deputy would have done other than inform the hospital, if enquiry had been made, that TK had undergone a lower segment caesarean section. As Dr Lyneham observed, a doctor would infer from such a response that the incision was transverse. Such a response would have confirmed the conclusion which the first defendant had reached from the material which had previously been available to him namely that TK had had a normal (transverse incision) lower segment caesarean section. 93 It was also submitted for the plaintiff (although not expressly particularised) that an enquiry of the general practitioner, who had referred TK to PANCH, should have been made. I reject this submission. There is no satisfactory evidence that this was the common practice at the time and I do not find the first or second defendant was under a duty to do so. Additionally there was no evidence that the general practitioner would have known what procedure had been performed or that TK would be able to identify him in order that enquiry would be made. Similarly there was no evidence from which I could infer Dr Qidwai was aware of TK's earlier medical history concerning the birth of Wassif. Group C (22) During the course of the Plaintiff's ante-natal attendances at the Hospital, neither the First Defendant nor the Second Defendant, its servants and agents: (f) Warned the Plaintiff's mother to attend upon the hospital at the first sign of a contraction in the pregnancy which was then under management by the First and Second Defendants.

[52]

GROUP Y 34 (i) As a result of the breach by the first, second and/or third defendant of its duty to the plaintiff, the caesarean section operation by which the plaintiff was delivered was materially delayed in that the plaintiff's mother did not immediately go to hospital upon first experiencing contractions nor did the plaintiff's mother book to undergo an emergency Caesarean Section immediately after her initial contractions thereby delaying the assembly of the critical hospital staff and preventing the plaintiff's mother from entering hospital earlier than she did, thereby the injury and damage to the plaintiff might have been avoided. (ii) Further, the second defendant's system was defective in that it was not possible to deliver the baby in a timely manner. Particulars of this are as follows: A. If the first or second defendants had diagnosed the previous classical Caesarean Section, the antenatal treatment and advice together with the treatment of the plaintiff's mother when she presented on 12 October 1984 should and would have been different in the following respects: (a) The plaintiff's mother would or should have been told to ring the hospital prior to going in at the first sign of pain or labour. (b) The plaintiff's mother would or should have been told to proceed immediately to the hospital at the first sign of pain or labour because of the increased risk of rupture. (c) The plaintiff's mother could have been at hospital within 15 minutes of the first sign of labour. (d) The labour ward nurse and/or midwife upon receiving the phone call would and should have arranged for a theatre to be opened and the anaesthetist and a suitably qualified obstetrician to be available to perform and emergency caesarean section. (e) Upon presentation at the hospital the plaintiff's mother would have immediately been prepared for surgery without delay to confirm that she was in labour as it would have been known that 50% of uterine ruptures occur in mothers with a history of previous classical Caesarean Section before labour.

[54]

133 The issues raised by these particulars in the main have already been dealt with. I have held that the second defendant was not negligent in not concluding or assuming there had been previous caesarean section which involved a vertical incision into or encroaching into the upper segment, that no purpose would have been served by TK telephoning the hospital in advance of presenting, that TK had been told to proceed immediately to the hospital at the first sign of contractions, labour or pain, TK could be at the hospital within 15 minutes of the first sign of labour or contractions and was. 134 Mr Clements and Dr Lyneham were of the opinion that even if the hospital had been aware of the nature of the previous caesarean section it would still be necessary to make a diagnosis that TK was in labour before deciding to perform the caesarean section and marshalling the necessary medical and operative staff. This would take about half an hour from the time of admission. Dr Molloy initially appeared to agree with this but later said he would call personnel in without examination. I prefer the evidence of Mr Clements and Dr Lyneham. There may have been a saving of up to 5 minutes if TK was known to have had a caesarean of the type she had as Dr Booth would have only had to ring each of the doctors once and it would have been unnecessary for her to perform a vaginal examination to confirm the breech presentation. Dr Lyneham gave evidence that opening the theatre would mean the opening of costly equipment which one does not do unless sure an operation will be proceeding. In any event the theatre was open before the arrival of Drs Simpson and Hines. 135 The conclusion drawn in these particulars encompasses the acceptance of TK's evidence that she felt the initial contraction at 9pm. I am unable to accept that evidence for the following reasons: (a) TK's evidence at the hearing was that the contractions had started at precisely 9pm on 12 October 1984. She was aware of that time as there were some regular customers who came at about that time to the shop and this caused her to check the clock. She had always told people her contractions started at 9pm; (b) TK's evidence was contrary to the history recorded by Dr Harbord that TK was admitted 30 minutes after the onset of contractions. It was contrary to Mr Clements's history of contractions commencing at 9.10pm and contrary to the original Statement of Claim which asserted TK presented to the hospital at about 10.30pm with a history of contractions over the preceding period of less than 30 minutes; (c) TK's evidence was contrary to the history recorded at the hospital at 11pm of "contractions since 10.45pm". The hospital entry was made by Sister Shipley who said the entry was made contemporaneously and recorded TK's response to the question "When did contractions start?". Sister Shipley said there was no language problem, if there had been she would have obtained an interpreter and noted the fact on the record. Sister Shipley was an experienced midwife. She had no reason not to accurately record TK's answers. It was suggested to her that she was concerned to know when the contractions became regular but she denied that the question was in that form. I accept Sister Shipley's evidence. 136 I find that the contractions commenced approximately 15 minutes before TK's arrival at the hospital at 11pm. The exercise of reasonable care would not have resulted in the plaintiff being born sometime between 9.45pm and 11.43pm. GROUP Z B. Even with a breech presentation, absent the knowledge of a previous classical Caesarean Section, the delay from the decision to operate to delivery was excessive and not in accordance with appropriate standards.

[56]

In a report dated 4 August 2005 he had referred to the organisation of the caesarean section at the hospital as being done "in an exemplary manner and as fast as possible at the time, being in the middle of the night". 139 However in his oral evidence, Dr Molloy, expressed a different opinion. He stated that the "gold standard" for delivery of a child by caesarean section from the time of the decision to proceed in that way to birth was 30 minutes. Although he conceded it was fairly standard in the majority of hospitals that there would not be a full surgical complement present to perform emergency procedures at all times he nevertheless asserted that the gold standard applied irrespective of whether the surgeon and anaesthetist were in the hospital or not at the time the decision to proceed by caesarean section was taken. 140 The evidence does not establish that in 1984 it was reasonable or practicable to have suburban hospital obstetric units staffed by specialist obstetricians and anaesthetists present on site at all times of the day and night. There was no evidence as to the general availability of specialists to work in the hospital and the proximity of their homes to the hospital. There was evidence the first defendant took 35 minutes to get from his home to the hospital in an emergency and that Dr Booth did not regard the 40 minutes taken by Drs Simpson and Hines to attend the hospital as untoward. The evidence of Dr Hinde was that the staffing arrangements at the hospital were common place in hospitals in 1984. Specialists had to be summonsed to the hospitals in the case of emergencies outside hours. There was no practical alternative. I accept this evidence. 141 Dr Lyneham gave evidence that even if it had been known that a previous classical caesarean section had been performed, a period of about one hour between the decision to deliver by caesarean section and the birth fell within the period of time that in 1984 would normally be expected and was reasonable. 142 Dr Hinde concluded there had been no departure from proper practice in respect of the delivery time for the plaintiff. 143 Mr Clements was of the opinion that, given the surgical team was not on site, that the sort of interval between the decision to perform the caesarean section and delivery would inevitably be in the order of an hour and given the circumstances this fell within the ambit of reasonable practice at the time. 144 I am unable to accept Dr Molloy's opinion which not only is in conflict with the opinion expressed by him in written form but is also in conflict with the opinions of Mr Clements and Drs Lyneham and Hinde.

[57]

145 I prefer the evidence of Mr Clements and Dr Lyneham that delivery up to about an hour after the decision to proceed to surgery was within the bounds of reasonable practice and that, as Dr Hinde concluded, there had been no departure from proper practice. 146 The plaintiff, when born, had no heart rate and was not breathing, though he was able to be resuscitated. 147 Mr Clements gave evidence that, where there was a total or near total lack of oxygen, a foetus at 36 weeks gestation could survive 10 minutes without suffering permanent harm, would suffer irretrievable brain damage at 10 - 20 minutes and would be dead at 30 minutes. He accepted that foetal bradycardia of less than 20 minutes could be associated with significant brain damage. 148 Dr Booth gave evidence that with a bradycardia of 80, brain damage would be beginning after 10 minutes and after 20 minutes there would probably be very severe damage. 149 The precise time at which the rupture occurred is not known. Dr Lyneham was of the opinion the foetal heart rate of 80 was a consequence of the uterine rupture. The rupture of the uterus can be spontaneous or gradual. It is likely, but not necessary, that it be accompanied by sudden severe pain. 150 The original Statement of Claim alleged that shortly after admission, TK commenced to suffer knife-like pains in the abdomen of which she complained to the nursing staff. In further and better particulars it was asserted the complaint of knife-like pain was made between 20 - 30 minutes after TK's arrival at the hospital. TK in her evidence initially said the knife like pain began when she was going to the hospital. She later said she did not remember when it started but she told the nurse of it after being told to sit on the bed. She then said the knife-like pain started when she was told to sit on the bed. 151 There is no record in the hospital notes of a complaint by TK of a sharp knife like pain at any time. Both Sister Shipley and Dr Booth said normally they would have noted such a complaint. Dr Booth suggested that the complaint may have been made when the bradycardia was observed and that, as the matter then became urgent, noting it was overlooked. In my opinion the probability is that TK first experienced the sharp knife like pain at about 11.40pm. 152 It would appear from the evidence that the probability is that the rupture began at or shortly before 11.40pm. Mr Clements, in order to explain how the plaintiff managed to survive until he was born at 12.28am, hypothesised that initially there was only a partial rupture. Nevertheless it would appear that with a bradycardia of 80 at 11.40pm subsequently falling to 40 that by midnight or shortly thereafter the plaintiff was in all probability grossly and irretrievably brain damaged. 153 In my opinion it has not been established the time taken from the decision to operate to delivery was excessive and not in accordance with 1984 standards. 154 Further, it has not been established that if the plaintiff had been born any time after midnight he would not have suffered severe brain damage and long term dependency on carers and others. Mr Clements, who gave the primary evidence on this aspect, said he was unable to express a view on this matter. 155 In my opinion, the plaintiff has failed to establish liability on the part of the first or second defendants. Accordingly there will be a verdict and judgment for the first and second defendants. Damages 156 The parties reached agreement as to the quantum of most heads of damage recoverable in the event the plaintiff was successful in his claim. A schedule of the agreed damages has been initialled by me and placed with the papers. 157 Three heads of damage were not agreed. Although my findings as to liability render it unnecessary to assess damages, I make the following comments against the possibility the matter may go further.

[58]

Fund Management 158 The defendants did not dispute the plaintiff's entitlement to damages for fund management, but disputed its quantum. 159 The plaintiff submitted fund management should be assessed by reference to fees charged by the Office of the Protective Commissioner ("OPC"). 160 Evidence was adduced by the plaintiff that OPC would charge fees of $866,765 for managing $7.2 million for 18 years. The fees comprised an annual management fee of 1.1 percent on the fund (plus an additional 1% in the first year capped at $2,200) and an annual investment management fee on 0.5 percent on the whole of the fund. 161 The defendants' adduced evidence that Australian New Zealand Executors and Trustee Company Limited ("ANZ") would charge fees of $327,636 to manage a fund of $7 million for 18 years. The ANZ fees comprised an establishment fee of $5,500 and an annual investment fee of 1.1 percent on the fund up to $5 million and 0.66 percent on that part of the fund which exceeded $5 million. The fee would be $387,604 if ANZ was appointed private manager under the OPC in which event an additional supervisory fee of 4 percent would be chargeable payable to the OPC. The ANZ fees were treated as totally tax deductible, the OPC management fee was treated as tax deductible as to 20 percent and the investment management fee as totally tax deductible. There was no evidence from a taxation expert to confirm that the taxation treatment was correct. 162 There was evidence that the ANZ fees were comparable with other reputable management organisations, that ANZ provided broadly the same services as OPC, and that the ANZ Banking Group Limited (of which ANZ was a wholly owned subsidiary) was a reputable organisation. I accept that evidence. 163 The defendants submitted there was no reasonable basis upon which to prefer OPC's management over management by ANZ and that damages for fund management should be assessed at the ANZ rates, the plaintiff being required to mitigate his loss. 164 The plaintiff submitted there was a risk that ANZ may encounter financial difficulty. Reference was made to the liquidation of a Victorian trustee company in relatively recent times. It was submitted the difference in the fee structure suggested that the standard of service provided by ANZ may be inferior to that provided by OPC and a weighting toward Australian equities in the investment spread of ANZ was somewhat concerning. Overall it was submitted OPC was the preferable manager as it was more conservative and was in fact a statutory authority governed by statutory regulations. 165 In my opinion there is, on the evidence before me, little to choose between OPC and ANZ as fund managers. There is no evidence ANZ is financially unsound or likely to become such. The plaintiff owes a duty to mitigate his loss. In these circumstances I would have calculated the damages under this head at the ANZ rates once the capital sum to be managed was calculated.

[59]

Housing 166 The plaintiff adduced expert evidence from Mr Hardiman as to the cost of providing accommodation suitable for the plaintiff's needs. The defendants adduced evidence from Mr Hesse to like effect. There was a discrepancy between the figures of considerable proportions. This was largely due to issues as to inclusions and the overall approach taken rather than with the cost of materials as such. 167 The plaintiff submitted he was entitled to the capital cost of purchasing a home and land suitable for his needs (less offsets). He relied upon Weideck v Williams [1999] NSWCA 346. 168 The defendants submitted the damages recoverable under this head was the marginal cost of securing suitable accommodation or, to put it another way, the cost of adapting the sort of house the plaintiff would live in if he was not disabled, to meet his special needs. 169 The defendants' submission accorded with the normal approach to be adopted unless the facts of the case justified something different - Weideck at [7]. In Weideck the Court held the facts justified something different because the plaintiff, pre-injury, was living in a caravan and would have continued to do so but for injury. It was submitted here that the fact the plaintiff was injured at birth justified a similar approach. 170 In my opinion, the age of the plaintiff when injured does not make this a special case nor is there any other matter which makes this a special case. The usual approach to the assessment of damages under this head is to be preferred. 171 The approach of the plaintiff's expert appears to involve assessing the plaintiff's needs at an optimal rather than at a reasonable level e.g. the provision of a duplex for the carer. The defendants' expert appears to adopt what is, to my mind, an overly restrictive approach e.g. the non provision of wheelchair access to the kitchen area. 172 As the Court observed in Weideck at [18] "In this area of assessment, the Court must take a pragmatic approach". Adopting such an approach I would have allowed damages under this head at $150,000. 173 A claim was also made for a spa pool. I would have allowed the cost of a spa pool and the cost of maintaining and running it. 174 A claim was made for air conditioning. It was conceded there was no evidence that this was a requirement resulting from the plaintiff's condition. I would not have allowed this claim. 175 A claim for a hoist was made but would have been rejected as it had already been included in the agreed damages.

Elayoubi BHNF Kolled v Zipser & 2 Ors

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