The manner in which elective measures operate is of considerable importance. The purpose of augmentation is not solely to promote an increased rate of labour, but to do so in an acceptable manner. For example, during augmentation, intra-uterine pressure should be monitored to ensure that adequate myometrial relaxation is occurring between contractions. If the resting uterine tone is increased to undesirable levels by the oxytocics, or, perhaps, they promote contractions which are too frequent or too prolonged, the complications of management will soon outweigh the advantages of acceleration. It is also clear from the work of Steer, et al (1975), that to continue to increase oxytocin stimulation in the inefficient uterus, once stable uterine activity has been achieved is both useless and dangerous." (JM Beazley, ch 23, Special Circumstances Affecting Labour in: Integrated Obstetrics and Gynachology for Post Graduates , 3rd ed (1981) (ed. Sir John Dewhurst), Blackwell Science, 1981, at 416.)
74 None of the foregoing establishes that the decision to administer Syntocinon was unreasonable or in breach of any duty of care by the Doctor. On the contrary, the evidence before the Court establishes that, in appropriate circumstances, the administering of Syntocinon is a generally available option, utilised by obstetricians and the decision to administer it could not be said to be negligent, whether or not there had been some establishment of labour at or before 9.00am.
75 However all of the evidence, that I accept, indicates that the use of Syntocinon, in a case such of Mrs Fisher's (i.e. fifth pregnancy and third child), must be done with extreme caution.
76 Further, the evidence of the experts is consistent that the use of Syntocinon, and its effect on any particularly patient, will differ significantly. It is for that reason that constant monitoring is recommended and/or insisted upon.
77 In this case, the Doctor prescribed the administering of Syntocinon, other than at the lowest dosage. Even though Ms Fisher was in the category of patients that the texts recommend should be given the lowest dosage, I accept, without deciding, that it was open, taking reasonable care, for the Doctor to administer Syntocinon at a higher dosage than the lowest.
78 The Doctor ordered the administering of Syntocinon at 10 drops per minute (the concentration remained constant) at 9.00am and, according to his answer to interrogatories, to be increased to 20 drops per minute after 30 minutes and 40 drops per minute after a further 30 minutes, the infusion to be controlled according to midwife discretion to adjust downward or ceased. The necessary implication is that the midwife would be monitoring and did not have the discretion to adjust upward.
79 According to the Hospital's answer to the same or similar interrogatories, the standing order (presumably from the Doctor) was to commence at 10 drops per minute (no specific order having been given) and "increased in accordance with the protocol for the induction of labour".
80 The Hospital protocol for the induction of labour and the use of Syntocinon for the relevant date, despite notices to produce and subpoenas, has not been produced by the Hospital. There is, however, a document before the Court, being a document of the Hospital entitled "Induction of Labour, Medical- Syntocinon Infusion (Routine Regime) for IMED". That document is dated December 1984 (the first date of its publication) (i.e. some seven months before the date of birth and injury), is said to be the sixth revision and was first created in that form, it seems, in March 1992. It seems that this is the latest protocol (or document that seems to be a protocol) that was available and, on the doctrine of continuity, one assumes is the same as, or little different from, that which applied in July 1985. It seems as if it is a document that forms part of a larger document in relation to Hospital procedures and is updated from time to time by the substitution of pages. The document deals with the need to assess the patient, the collection of equipment, the need to prepare the patient and the preparation of Syntocinon solution. Care must be taken when comparing this document (Exhibit E) and the administering of Syntocinon to Ms Fisher. First, calculations must be performed which take account not only of the drops per minute, but also the concentration of the Syntocinon solution. Secondly, an obstetrician, necessarily and by definition an expert in the field, would be entitled to depart from the generally prescribed regime.
81 Nevertheless, Exhibit E establishes a regime for low-dose Syntocinon infusion of 10 international units in 1 litre of Hartmann's solution, with an initial rate of 6 mls per hour (15 drops) to be increased every 30 minutes by 3 mls per hour (i.e. by 50 percent). The indications are for multigravida i.e. Ms Fisher.
82 On the evidence before the Court the dosage employed by the Doctor was mid-way between the low-dose and medium-dose regime in Exhibit E, the Hospital document. At 20 drops per minute it also exceeded the low-level in that document and at 40 drops per minute it exceeded both the low-level and medium-level protocols.
83 Also relevant is that the administration regime prescribed by the Doctor increased the dosage of Syntocinon at almost double the rate of increase as that under the Hospital regime (and in some cases by three times the rate).
84 Most importantly the Hospital document which, I infer, either applied or was so similar to the document that applied that it matters not, required the Syntocinon infusion to be adjusted every 30 minutes to 1 hour "until moderate to strong contractions occur, 4 in every 10 minutes, with the uterus relaxing between contractions".
85 At 9.14am (13 minutes after the first administering of Syntocinon) there were 2 contractions per minute. By 9.44am (according to the CTG) there were between 3 and 4 contraction per minute and by 9.50am (or at least between 9.50am and 10.00am) there were 4 contractions in 10 minutes. According to the Hospital protocol at the time at which contractions reached 4 in every 10 minutes, Syntocinon should have ceased. Further, at 9.50am, the notes record that the nitrous oxide was not having the necessary effect and pethidine was required. This is further evidence that, at or about 9.50am, Ms Fisher was experiencing extremely strong contractions. On that basis, there is a strong probability that the Hospital (and the Doctor) ought to have adjusted the Syntocinon infusion to zero at or about 9.50am and at least between 9.50am and 10.00am.
86 Further it is clear that, assessing Ms Fisher as an individual, instead of a generally applicable regime, contractions were strong from 9.35am (the time at which nitrous oxide was administered) and were at 3 contractions in 10 minutes between 9.20am and 9.30am.
87 On that basis, there seems to be a strong case that, constant expert assessment would have decreased, rather than increased, the administering of Syntocinon (or at the very least not increased it at 9.30am).
88 On the above analysis, the breach of care occurs in a number of ways. As is noted by senior counsel in his advice, it is unreasonable to expect that a nurse or midwife would be countermand (without hard evidence or in an emergency situation) the directions of a consulting obstetrician. In circumstances, where caution was required, because of the history of pregnancies of Ms Fisher, and constant assessment was required, it may be negligent of the Doctor to have delegated to the midwife the constant assessment that was required of this patient, with a particular and peculiar history. Further, it may have been negligent of the Hospital not to have assessed Ms Fisher in a manner more consistent with her history and to have interfered with the regime imposed by the Doctor significantly earlier than the onset of a crisis.
89 In my opinion, on the evidence that is before the Court, there is a strong case on liability relating to the doubling of the dosage at 9.30am and the non-cessation of the dosage at or about 9.45am and, at the very latest, at 9.50am. None of the foregoing deals with the conflict between the answer to the interrogatories by the Doctor and by the Hospital. If, as is clearly available on those answers, it is accepted that the Hospital was to implement its own regime (as the Hospital suggests), the increase in dosage of Syntocinon far exceeds the increase in the Hospital's regime that is before the Court, in these proceedings.
Conclusions
90 As previously stated, there is, in my view, a strong case for breach of duty by either the Doctor or the Hospital, or both. The overwhelming evidence (if not uncontroverted) is that in a multiparous patient extreme caution must be utilised in administering Syntocinon. At the very least, there must be constant monitoring and assessment of the effect of the Syntocinon on the patient. That constant assessment was lacking.
91 There are, nevertheless, still risks associated with proceeding to trial. It is not the function of the Court to determine the level of damages that should have been negotiated or should be awarded if, and when, the matter proceeded to trial.
92 It is, as stated initially, the function of the Court to determine whether the approval of this settlement is in the interests of the plaintiff who is, and will continue to be, under a disability. That involves the assessment of whether the risk of losing, on the question of liability, or, albeit remote, of obtaining less by way of damages, outweighs the benefit in a settlement that will deliver some recompense immediately.
93 I have little or no doubt that, if the matter were to proceed to trial and the plaintiff were successful, damages would be far greater than the amount of the settlement. That is a result that is not in contest. As earlier stated, even the defendants submit that the level of damage would be $6.5 million.
94 It is the issue of liability that is most concerning. Even though I consider that there is a strong case on liability. That liability still depends upon contested expert evidence.
95 While there is no contest that the birth produced the injuries, and the bradycardia was the cause of the lack of oxygen, there is some contest as to whether the Syntocinon was the cause of the hypertonus, which in turn caused the bradycardia. The overwhelming preponderance of expert evidence suggests so. The experts differ on whether the administering of Syntocinon at the levels was a reasonable course and differ on whether cessation of the Syntocinon, at particular times, would have prevented the hypertonus and/or the bradycardia, and, as a consequence, prevented the injury.
96 Nevertheless, the overwhelming consensus of the expert medical evidence is that were it not for the use of the Syntocinon, there would have been no hypertonus, there would have been no bradycardia and there would have been no injury to Lauren.
97 The above, however, does not resolve liability. Liability is not determined ex post facto or with the benefit of hindsight. The duty imposed on a medical practitioner is not perfection - just reasonable conduct:
"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' (Sidaway v. Governors of Bethlem Royal Hospital [1985] UKHL 1; (1985) AC 871, per Lord Diplock at p 893); it extends to the examination, diagnosis and treatment of the patient and the provision of information in an appropriate case (Gover v. South Australia (1985) 39 SASR 543, at p 551.). It is of course necessary to give content to the duty in the given case.
The standard of reasonable care and skill required is that of the ordinary skilled person exercising and professing to have that special skill…." ( Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479 at 483)
98 Of course "skilled person" is the ordinary obstetrician, who would be expected to know the problems with Syntocinon and its contraindicators. Further, given that the risk, in overuse of the hormone, or cessation of its use too late is, or may be, catastrophic (as it was here), the appropriate response would be to monitor constantly, by a like expert, or not use it at all: Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40.
99 However, the main question on liability remains whether, accepting on the evidence that the original prescription of Syntocinon was reasonable, the monitoring regime the Doctor implemented was reasonable and/or whether the Hospital's augmentation of the dosage of Syntocinon (and/or its non-cessation at an earlier time) was reasonable. It seems, on balance, that the Hospital's conduct was lacking in reasonable care.
100 However, as can be seen, there are significant issues on the question of liability. There are other bases, upon which liability could be determined favourably to the plaintiff, but they depend, even more than the issue outlined above, on contested facts. On liability, the plaintiff could lose. If Malec v Hutton be the correct approach to this issue of uncertainty, I would assess the percentage as 60% likelihood of success on liability. However, if successful, the plaintiff must receive more than the settlement, and, if one were to apply a percentage to the likely damages to account for the uncertainty, the damage would be assessed at significantly more than the settlement (i.e. 60% of $12 million).
101 It is therefore a fine line as to whether disapproval of the settlement and, as a consequence, requiring the parties to proceed to trial, in the hope that the plaintiff will succeed, is in the interests of the plaintiff.