MCLENNAN -v- MCCALLUM [2010] WASCA 45 (12 March 2010)

MCLENNAN -v- MCCALLUM [2010] WASCA 45 (12 March 2010) - WASCA 2010 case summary — Zoe

[81]

[The appellant's] case was essentially mounted on the basis that there was a footling breech, and there can be no doubt that if that had been the position, to advise and proceed to natural delivery would have been negligent. That is readily conceded by [Dr McCallum]. However he has failed to establish the allegation that there was a double footling breech presentation.

Having regard to the manner in which the case was presented it is necessary however to determine whether the exercise of reasonable obstetric care and skill dictated it was inappropriate in 1997 to undertake the natural delivery of a flexed or complete breech.

Generally, the witnesses called by [the appellant] had some reluctance addressing that issue, being firmly of the view that [the appellant] presented as a footling breech, and before proceeding further, it is necessary that I make some general remarks about my assessment of the medical experts.

Dr Thonell, an experienced paediatric radiologist, interpreted and described the results of ultrasound and CT examinations. There does not seem to be any dispute as to his finding of basal ganglia injury, the issue being its cause and timing.

Professor Colditz is a perinatal clinician with a special interest in brain development and damage in the foetus and the new born. In the end there did not appear to be a great deal of divergence between his views and those of Professor MacLennan, save as to causation. He was influenced by the belief that there had been a footling breech presentation.

Dr Molloy was firmly of the view that there was a footling breech presentation and 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. He was unaware of the Hannah trial initiative research which was very relevant to the issues under discussion, and to his discipline.

Mr MacKay lacks contemporary practical involvement in obstetrics, and the views he expressed were clearly influenced by his conclusion that there was a footling breech presentation. His evidence that when the foetal heart rate dropped to 90 steps should have been taken to delay the birth process, did not find support with any other witness. He appeared too enthusiastic in his support of the case for [the appellant].

Mr Korda's views were also clearly influenced by the belief that there was a footling breech presentation.

Professor MacLennan appeared to have the broadest experience as to the issues involved in this particular case. He was heavily criticised about his published views on medical negligence and the legal process. Also that he was biased because he has been sued for professional negligence. His views would not be regarded by many as aberrant and do not reflect adversely on the quality of his evidence which he gave in an objective, thoughtful and analytical manner. I felt however that he often demonstrated a requirement for scientific proof before accepting a position.

Associate Professor Pettigrew and Dr Renou appeared to have considerable practical and contemporary experience with the issues involved in this action, and generally I accept their evidence.

Dr Molloy accepted that provided the foetus was not large (which was the case), and because Mrs McLennan [the appellant's mother] had a previous cephalic delivery, it would not have been inappropriate to have contemplated natural delivery in the case of a flexed or complete breech, although expressing the view that there would need to be monitoring throughout labour.

Mr MacKay agreed that a frank breech and a flexed or complete breech did not create the same level of risk of cord prolapse or entanglement as a footling breech, and agreed reluctantly that prior to the outcome of the Hannah trial in the year 2000 there was no general obstetric practice in respect to advising caesarean section for other than a footling breech. He accepted that [the appellant] was quite a small baby, and that it was reasonable to expect that he would pose no problem negotiating the birth canal - as events demonstrated.

Mr Korda was of the view that in 1997 one would not have expected a caesarean section for a frank or extended breech, and agreed that the risks associated with a flexed or complete breech were only slightly higher than with an extended breech. He agreed that the standard of care in 1997 demanded the recommendation of a caesarean section for a footling breech, but that before the outcome of the Hannah trial became known it was the standard to allow a trial of labour for a flexed or complete breech. He was also of the view that full monitoring was required when there was natural delivery of a breech.

Professor MacLennan's evidence was that before the Hannah trial, excluding a footling breech, it was not known which form of delivery was best overall for mother and child. He accepted that in 1997 natural delivery of a flexed or complete breech was within the range of reasonable clinical options if there were no other known major clinical risk factors presenting; as demonstrated by the fact that complete breeches were included in the ethically approved international term breech trial (the Hannah trial). Prior to the Hannah trial there was no good evidence that delivering a complete breech by elective caesarean section was preferable to embarking upon a trial of labour and natural delivery.

Associate Professor Pettigrew expressed the view that as at May 1997 there was no evidence to suggest that a caesarean section carried greater benefit than vaginal delivery in terms of foetal outcome for a complete breech.

Dr Renou said that as at 1997 a decision to deliver a flexed or complete breech vaginally was appropriate, and particularly in Mrs McLennan's [the appellant's mother] case as she had a normal past obstetric history, and no other medical abnormalities there was no reason to suppose she shouldn't undergo a natural birth process.

Clearly, [Dr McCallum] was of the view that natural birth was appropriate, and Mrs McLennan [the appellant's mother] desired it [244] - [260].

[85]

I am not satisfied that it was inappropriate for [Dr McCallum] to utilise the agent Prostin prior to induction. Professor Colditz agreed that it was commonly used. Dr Molloy considered that it was inappropriate, although seemingly on the basis that there was a footling breech presentation. He agreed that it was widely used in 1997. Mr MacKay expressed the view that it was the cause of the fairly rapid labour, had resulted in hyper-stimulation of the uterus, and that as the cervix did not need to be softened, its use was inappropriate. If used, careful observation, particularly of contractions, was necessary. He accepted however that generally speaking there was no problem with the use of Prostin to 'ripen' the cervix, and it was commonly used as at 1997. The evidence does not establish that there was hyper-stimulation of the uterus. Mr Korda also agreed that in 1997 it was common place to administer Prostin in an induction process for the purpose of 'ripening' the cervix, stating that whether or not it was employed was a decision to be arrived at following physical and ultrasound examination. Professor MacLennan who, as I have already observed, has particular knowledge of the use of Prostin, stated that it was of considerable benefit and an appropriate agent in achieving a safe, short and comfortable labour and better outcome overall, and was particularly useful in natural breech deliveries. Associate Professor Pettigrew regarded its use as appropriate. Dr Renou also regarded its use as appropriate, stating that a complete breech would not have been considered a mal-presentation in 1997, and that generally it facilitated expeditious and safe delivery, and was not likely to hyper-stimulate the uterus. [Dr McCallum], having carried out a clinical examination, was in the best position to determine the appropriateness of its use, and the manufacturer's recommendation did not preclude it. Its use in these circumstances was entirely appropriate, particularly as the evidence does not establish that there was hyperstimulation of the uterus [262].

[87]

The [appellant] also alleges that there was inappropriate monitoring of Mrs McLennan [the appellant's mother] during labour, and in particular asserts that there should have been electronic monitoring. Dr Molloy was of the view that continuous monitoring was required, but that view seems to be based on the premise that there was a footling breech. He agreed that the recordings from electronic auscultation up until 0400 hours on 15 May 1997 was indicative of a perfectly natural onset of labour, but claimed that because there was a lack of continuous monitoring it was not known what was happening during contractions. Mr MacKay considered that in a case such as this, where there was an ever present risk of major umbilical cord compression, intermittent foetal heart rate auscultation was not appropriate. (I do not accept on the evidence that there was an ever present risk of major umbilical cord compression.) He accepted that the trace did not indicate that the contractions were having an adverse effect on the foetus, and that is accepted in the pleading. He agreed that in the low risk situation intermittent auscultation was appropriate, and that as at 1997 the general practice in maternity hospitals was to use manual auscultation, and only use electronic monitoring when there were some particular labour concerns. He also accepted that a CTG monitor (trace) required careful interpretation, and was not on its own a particularly useful test. It did not indicate the strength of uterine contractions, and it was possible to detect hyperstimulation by manual auscultation. Professor MacLennan stated that there is still considerable debate about the relative value of electronic foetal monitoring as against intermittent auscultation without good evidence of the superiority of either method, noting particularly that statistically electronic foetal monitoring had a false positive rate of 99.8 per cent, resulting in unnecessary caesarean deliveries. He agreed that one of the purposes of electronic foetal monitoring was to detect cord compression, and that the protocol in most hospitals in 1997 was that there would be a brief period of monitoring after membrane rupture, re-established when labour pains commenced. Notwithstanding, he was of the view that electronic monitoring during labour was not essential, and stated that was still not standard practice. Associate Professor Pettigrew was of the view that the extent of electronic monitoring in this case was entirely appropriate, and that the CTG trace appeared to be normal, there being no evidence of hyper-stimulation or intrauterine hypoxia, although he would have preferred to have seen the trace go on a little bit longer. He disputed that continuous CTG monitoring was required, stating that it was not the practice in most institutions. Dr Renou also regarded the CTG trace as essentially normal, considering that at the time of the cessation of the trace the foetal heart rate was normal, and the uterine contractions were not significant. He did not support the necessity for electronic monitoring.

The evidence establishes that the foetal heart rate was unremarkable up until at least 0425 hours.

Having regard to the fact that the foetus did not present as a footling breech, I am not satisfied on all the evidence that electronic auscultation during the period proximate to the insertion of Prostin, followed by what appears to be regular manual auscultation up to and during labour was inappropriate. I accept the evidence of Professor MacLennan, Associate Professor Pettigrew and Dr Renou that as at May 1997 a competent obstetrician exercising reasonable care and skill would not in this case have regarded continuous CTG monitoring as necessary [263] - [265].

[92]

[Dr McCallum] was a visiting medical officer and the sole obstetric/gynaecological specialist practising at the Kalgoorlie Regional Hospital. The nursing staff of the hospital not surprisingly followed his medical directions; and unless the [Minister] knew or ought to have known that any directions given constituted inappropriate medical practice, it would not be in breach of its duty to [the appellant] to comply with them.

The burden of the expert evidence is that the CTG trace demonstrated an unremarkable position in respect of the foetal heart beat and uterine contractions. Clearly the hospital's obligation only dictated reporting any adverse or unexpected result to [Dr McCallum], who incidentally viewed the trace prior to leaving the hospital, at which stage it had been active for about 15 minutes. [Dr McCallum's] evidence was that there was nothing demonstrated by the trace recording that would have caused him to alter the birth plan in any way. Had the staff of the [Minister] brought the total recording to [Dr McCallum's] attention it would not have been of consequence.

I accept [Dr McCallum's] evidence that Nurse Gilks rang him in the early hours of 15 May to advise that Mrs McLennan's [the appellant's mother] membranes had ruptured, and provide other clinical information. Having regard to her professionalism that would not be unexpected. She was advised by [Dr McCallum] to carry on with normal management.

Having regard to my finding that continuous CTG monitoring was not required, and that manual auscultation was appropriate, the [Minister] was not negligent in failing to implement continuous electronic monitoring, or to institute electronic monitoring after the rupture of the membranes.

The evidence establishes that until 0430 hours on 15 May 1997 there was no clinical indication that labour was not proceeding normally, and when the foetal heart beat was recorded at 90 the only practical and rational step was to deliver [the appellant] as quickly as possible; necessarily naturally. Appropriate steps were taken in that regard. Any course of action not directed to that end was contrary to proper medical practice.

It has not been established that the [Minister] was in breach of duty to [the appellant] [268] - [273].

[94]

It is accepted that [the appellant] was born with severe encephalopathy, and the question is what was its cause.

Dr Thonell stated that where a baby's brain was denied oxygen it would manifest in brain swelling and reduced attenuation in parts of the brain that had been ischaemic. Maximum swelling would occur between 2 to 3 days of the triggering event and then begin to resolve. If swelling was observed radiologically all that could be said is that it had occurred within 2 or 3 days of its identification. His interpretation was that the cranial ultrasound performed on 16 May 1997 indicated moderate generalised oedema. The cranial ultrasound performed on 20 May 1997 suggested some resolution. The CT scan carried out on 20 May 1997 indicated widespread changes suggestive of area of cerebral oedema or infarction. He considered that scanning demonstrated increased blood perfusion in the basal ganglia most often associated with a sudden severe hypoxic event. The likelihood was that the changes observed radiologically were referable to an event or events either shortly before, during or immediately after birth, and that it would require a severe and sudden injury to the brain to result in the observable damage to the basal ganglia.

Professor Colditz, a participant and contributor to the 1999 International Consensus Statement, confirmed the view expressed in the statement that acute intrapartum events were an uncommon cause of cerebral palsy. A foetus was well accustomed to living in an hypoxic environment and hypoxia alone was unlikely to damage the foetal brain. Brain damage resulted from a complete lack of oxygen to the brain tissue which would result if the blood flow failed, possibly resulting in hypoxic ischaemic encephalopathy. He agreed that cerebral palsy was more commonly encountered in a growth restricted foetus, although the vast majority of growth restricted babies did not develop cerebral palsy. Growth restriction was a risk factor. Also, that the risk of cerebral palsy was higher for a foetus in breech presentation, although again the vast majority of those in breech did not develop that condition. At trial he resiled from the position he had earlier taken, and agreed that [the appellant] was growth restricted (below the 10th percentile) and that intrauterine growth restriction was a risk factor for cerebral palsy which he put at between 1.6 to sixfold. His view was that the radiological evidence of basal ganglia injury was confirmatory of a severe hypoxic ischaemic injury. He conceded that he didn't not know what the singleton hypoxic event was causing the condition because the uterus had not ruptured and the foetus was from all observations doing quite well until there was sudden and sustained bradycardia 'for no particular reason'. He then inferred that there had been an hypoxic event namely cord compression notwithstanding that he was unable to identify it or its timing. He accepted that the hospital records indicated that the foetal heart rate was normal up until 0425 hours on 15 May 1997.

Dr Molloy considered that [the appellant] was probably in an hypoxic state because of cord compression. Compression was deleterious when it occurred over a long period of time.

Mr MacKay considered that it was virtually certain that the drop in the foetal heart rate was caused by cord compression or possibly hyperstimulation. He agreed that [the appellant], being a small baby, would pose no problem negotiating the birth canal. He drew the inference that there was cord compression from the fact that in his view there was no other logical explanation for the fall in the foetal heart rate.

[Dr McCallum's] evidence was that there had not been any head entrapment or cord prolapse or entanglement, and no clinical indication of cord compression. He arranged an ultrasound following admission and ascertained that there were no cord problems at that time.

Professor MacLennan stated that considerable research into cerebral palsy had led to the presently held the view that only 1 per cent of babies born with the condition were thought to have been compromised by an acute de novo primary asphyxial event in labour. Over the 38 years since he commenced practice the incidence of cerebral palsy in term births had not changed notwithstanding the dramatic escalation in the rate of caesarean sections before labour, more efficient surgical methods, a dramatic increase in electronic foetal monitoring, and better neonatal resuscitation. He considered that [the appellant's] birth [weight] was around the third percentile, and that he had asymmetrical growth restriction. Professor MacLennan referred to the report of Dr Ian Walpole commenting on very deep hand and feet creases which was possibly indicative of an unsound intrauterine environment. The consensus of current scientific evidence was that the neuropathology of cerebral palsy was established silently during pregnancy, and that signs of foetal neurological compromise often did not appear until the stresses of labour. His view was that the risk of cerebral palsy was approximately tenfold in term babies under the 10th percentile in weight for gestational age. One third of babies born with cerebral palsy had an inflammatory response syndrome. A foetal heart rate of 90 was not indicative of total hypoxia and was present in approximately one third of all second stage labours. He accepted that in a small number of cases neuropathology could begin and become established in a healthy foetus following an acute hypoxic event intrapartum. His conclusion was that [the appellant] was already chronically stressed with resultant intrauterine growth restriction and reduced reserves, and experienced further stress in a rapid labour and assisted breach delivery. There was no theoretical explanation why an intact healthy foetal brain would have become acutely and severely ischaemic or hypoxic during what was a short labour, and it was more likely that the neuropathology of the cerebral palsy was already established before labour. He stated that it was impossible for a radiologist to differentiate between late peri-natal neurological compromise and that in a growth retarded foetus where final and irreversible neuropathology was established only in the last 2 hours before delivery. Professor MacLennan stated that it was unusual to get cord compression in a normal labour unless the cord was tightly around the foetal neck or fell down and got compressed by the presenting part above it. Research had demonstrated that intrauterine growth restriction was a major risk for cerebral palsy. He would not accept that there was acute de novo hypoxia between 0440 hours and 0457 hours, stating that [the appellant] was very severely growth restricted (23 per cent down on his weight) indicative of the fact that he had been chronically [compromised] for weeks. He was not a healthy baby going into labour.

Dr Renou referred to [the appellant's] birth weight stating that he was born in a very poor condition with gross central nervous system dysfunction which was unlikely to be the consequence of the quick and uncomplicated labour. He thought that the CTG trace suggested an abnormal response to the normal stresses of early labour in a baby who already had severe central nervous system dysfunction.

Dr Walsh, a paediatric neurologist, speculated that [the appellant] may have suffered some adverse events during pregnancy which could have made him particularly sensitive to a mild degree of hypoxia at birth; apparently being troubled by the incongruity between the benign labour and the neurological outcome. He felt that the EEGs were consistent with hypoxic ischaemic encephalopathy.

Another paediatric neurologist Dr Lindsay Smith reported on 22 October 2002 (Exhibit 10.93) that:

[100]

It is axiomatic that the burden of proof is on the [the appellant] to establish on the balance of probabilities that the condition of cerebral palsy was caused by an event during labour. ('a period of oxygen deprivation' - par 34 of statement of claim.)

The evidence of Nurses Jones, Freeman and [Dr McCallum], and the integrated progress notes and partogram, demonstrate that there was no rupture of the uterus, placental abruption, head entrapment, or cord entanglement or prolapse; and there was a rapid labour and delivery.

[Dr McCallum] did not identify any clinical evidence of cord compression, and having regard to the speed of the delivery, if such there was, it would have been of short duration and would not have been expected to have resulted in brain damage.

Professor MacLennan stated that it was unusual to get cord compression in a normal labour unless the cord was tightly around the foetal neck, or fell down and got compressed by the presenting part above it. There is no evidence of such occurrence.

The experts who support the proposition that there was cord compression resulting in hypoxia and subsequent brain damage, appear to draw that inference from the fact that they believe there was a footling breech presentation; the drop in foetal heart rate with none detectable [sic] immediately prior to birth; the subsequent radiological imaging; and an inability to ascribe any other cause.

As against that there was an apparently benign labour, and I am satisfied that [the appellant] was asymmetrically growth restricted, indicative of an unsound intrauterine environment, which is a risk factor having an association with cerebral palsy. That raises the possibility that the drop in the foetal heart rate was part of the clinical reaction of a chronically compromised foetus to the normal stresses of labour.

Bearing in mind that [the appellant's] heart rate was 60 immediately following delivery, I have difficulty accepting that his heart was not functioning as he was delivered.

Dr Thonell attributed the radiological evidence of brain damage to an event or events either shortly before, during, or immediately after birth. The evidence establishes that [the appellant] did not make any real respiration effort for approximately 8 minutes after birth which was not explored during evidence but would seem to be an extremely relevant factor in this respect.

The evidence also establishes that an acute intrapartum hypoxic event is a relatively rare cause of the condition [290] - [298].

[244]

I was left with considerable disquiet as to the reliability of Mrs McLennan's [the appellant's mother's] evidence on significant issues, and formed the view that it was, at least in part, a reconstruction influenced by a desire to advance her cause and disadvantage that of the defendants'.

I do not accept, particularly having regard to my assessment of the first defendant [Dr McCallum] as set out hereunder, that the consultation on 7 May 1997 was as cursory as suggested by Mrs McLennan [the appellant's mother]. She had been referred to the first defendant for expert advice and management in the delivery of a foetus in breech. Clearly she would have been anxious to ascertain the nature of any possible complications, attendant risks, and the appropriate manner of delivery. I am unable to accept that these matters were not addressed. In her statement made on 11 June 2001 (Exhibit 10.116) Mrs McLennan [the appellant's mother] stated 'During the appointment (7/5/97) we discussed my options of delivery if the baby remained in breech.' It is difficult to reconcile that statement with her evidence.

I do not accept that the first defendant gratuitously advised her that her unborn child was male. Quite apart from the reason given by the first defendant as to his practice in this respect, having regard to the fact that many prospective parents do not wish to know in advance of birth the sex of the baby, it would have been extraordinary to have proffered the remark attributable to him.

I do not accept that the first defendant stated that he only performed caesarean sections in an emergency. That alleged statement, apparently regarded as significant at trial, is not referred to in Mrs McLennan's [the appellant's mother] statement of 11 June 2001 and is not consistent with the first defendant's evidence of the rate of elective caesarean sections undertaken by him at the hospital. At the time the statement was made Mrs McLennan [the appellant's mother] apparently had a recollection of having two consultations with the first defendant prior to her confinement, now accepted as being erroneous.

I do not accept her evidence that at the consultation on 7 May 1997 Mrs McLennan [the appellant's mother] observed from the ultrasound screen that the foetus was in the upright position described by her. That is in conflict with the evidence of the first defendant, and his report to Dr Date (Exhibit 10.18) describing the lie as an extended breech. Also the reference in her statement that 'the baby was still frank breech'.

Mrs McLennan's [the appellant's mother] description of the level of her smoking during the pregnancy is in conflict with her previous recorded accounts; and I reject her evidence that she was unaware of the potential detriment of this habit to the foetus. Dr Date stated that it was his practice to bring this to the attention of his patients, and it was at the time a matter of common knowledge.

I reject her evidence that following the rupture of her membranes she was provided with a towel and directed to clean up the fluid. That would be an extraordinarily thoughtless and inappropriate step for a trained midwife to take, and it is denied by Nurse Freeman, who was the relevant person, notwithstanding that Mrs McLennan [the appellant's mother] nominated Nurse Gilks. Nurse Freeman stated that the fluid was of diagnostic consequence. It is also to be noted that in her statement Mrs McLennan [the appellant's mother] observed that following the rupture of the membranes a nurse responded 'and went and got some waterproof sheets and put them on the floor to soak up my result'.

I do not accept that Mrs McLennan [the appellant's mother] was advised by a nurse to go to the toilet and void, which would be contrary to appropriate nursing practice and is not indicated in her statement; or that when she went to the toilet she observed a baby's leg and foot protruding from her vagina. Nurse Jones had difficulty accepting that a full term pregnant woman in the seated position would be able to see the opening to her vagina, and it is to be observed that in her statement Mrs McLennan [the appellant's mother] detailed that:

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (405 paragraphs)

MCLENNAN -v- MCCALLUM [2010] WASCA 45 (12 March 2010)

Legislation Cited (3)

Cases Cited (23)