Sheppard v Swan [2003] WADC 82

Sheppard v Swan [2003] WADC 82 | Case summary | Zoe

[41]

b) failed during the course of the antenatal visits to complete or arrange the completion of any or any appropriate pelvic examination or ultrasound examination of the Plaintiff and her foetus. Had this occurred it would have reinforced the potential for cephalopelvic disproportion during the course of labour;

c) Failed to identify and appropriately address the abnormal lack of progress/descent of the Plaintiff's baby through the Plaintiff's birth canal referred to in paragraphs 11, 14 and 17 herein by 1320 hours;

d) Failed to obtain consultant advice in relation to the abnormal lack of progress/descent of the Plaintiff's baby through the Plaintiff's birth canal referred to in paragraphs 11, 14 and 17 herein;

e) Failed to identify and appropriately address the abnormal lack of progress/descent of the Plaintiff's baby through the Plaintiff's birth canal referred to in paragraphs 18 and 19 herein;

f) Failed to obtain consultant advice in relation to the abnormal lack of progress/descent of the Plaintiff's baby through the Plaintiff's birth canal referred to in paragraphs 18 and 19 herein;

g) Failed to identify and appreciate the significance of the progress abnormalities in the Plaintiff's cervical dilation over the periods referred to in paragraphs 9 - 14 and 18 - 19 herein;

h) As a consequence of her lack of appreciation of the Plaintiff's cervical dilation abnormalities and the abnormal arrest of the baby's progress and the resultant likelihood of cephalopelvic disproportion, she failed to recommend, as she should, that the Plaintiff undergo elective caesarean section at or about 1430 hours or alternatively 1630 hours on 9 August 1998;

i) Failed to immediately recommend that the Plaintiff undergo caesarean section delivery upon her notification of the Plaintiff's baby's tachycardia pleaded in paragraph 21(a)(v) or at least upon her attendance thereafter at 1810 on 9 August 1998;

j) Failed to arrange immediate consultant obstetric assistance and assessment of the Plaintiff upon notification of the baby's tachycardia pleaded in paragraph 21(a)(v);

k) Failed to attend upon the Plaintiff immediately following the telephone conversation at about 1630 hours pleaded in paragraph 21 and to at that time:

[69]

6 To succeed, the plaintiff must not only, of course, establish a duty of care. She must give content to it in the particular circumstances. She must show its breach. She must show that its breach is causative of loss or injury.

7 In the present case, the plaintiff complains of both breach of the defendant's duty of care in the areas of lack of information and advice and in the areas of diagnosis and treatment, in each case on more than one occasion or situation.

8 In summary, the plaintiff's case in opening raised a number of matters of which she complains. One is that as events unfolded during pregnancy and delivery, problems were encountered which should have, but did not, result in the defendant seeking specialist obstetric intervention.

9 One of these was the plaintiff's abnormal weight gain during the first 34 weeks of pregnancy.

10 Another, related, matter is alleged to be that the plaintiff told the defendant during pregnancy that if the baby was to weigh in excess of nine pounds the plaintiff elected to have a caesarean section birth, and that as the defendant did not perform such births, that would necessarily involve another medical practitioner.

11 Given these matters, it was said that ultrasound tests should have been conducted to establish likely birth weight.

12 Even in the event of the plaintiff deciding against an elective caesarean section birth, the plaintiff should not have been permitted to go past full term before labour, but birth should have been induced earlier. Further, during and after birth, a number of measures should have been handled differently. The plaintiff's management during delivery should have been conducted "very differently" from the way it was. This proposition includes a number of different components.

13 In Australia, the High Court of Australia has made it clear that except in the case of an emergency or where disclosure would prove damaging to the patient, a medical practitioner has a duty to warn the patient of a material risk inherent in proposed treatment. In Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479, the High Court described the duty as being one of disclosure, rejecting use of the concept of informed consent as amorphous and apt to mislead. A risk is material if, in the circumstances of the particular case, a reasonable person in the patient's position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it. The fact that a body of reputable medical practitioners would have given the same advice as the medical practitioner gave does not preclude a finding of negligence. Generally speaking, whether the patient has been given all the relevant information to choose between undergoing and not undergoing the proposed treatment is not a question the answer to which depends upon medical standards or practice: Rogers v Whitaker (supra).

14 A distinction is clearly drawn between the provision of advice and information and non-disclosure of risk on the one hand and diagnosis and treatment on the other:

[70]

"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. ... Further, and more importantly, particularly in the field of non-disclosure of risk and the provision of advice and information, ... the courts have adopted the principle that, while evidence of acceptable medical practice is a useful guide for the courts, it is for the courts to adjudicate on what is the appropriate standard of care after giving weight to 'the paramount consideration that a person is entitled to make his own decisions about his life'.

...

Acceptance of this approach does not entail an artificial division or itemization of specific, individual duties, carved out of the overall duty of care. The duty of a medical practitioner to exercise reasonable care and skill in the provision of professional advice and treatment is a single comprehensive duty. However, the factors according to which a court determines whether a medical practitioner is in breach of the requisite standard of care will vary according to whether it is a case involving diagnosis, treatment or the provision of information or advice; the different cases raise varying difficulties which require consideration of different factors. Examination of the nature of a doctor-patient relationship compels this conclusion. There is a fundamental difference between, on the one hand, diagnosis and treatment and, on the other hand, the provision of advice or information to a patient. In diagnosis and treatment, the patient's contribution is limited to the narration of symptoms and relevant history; the medical practitioner provides diagnosis and treatment according to his or her level of skill. However, except in cases of emergency or necessity, all medical treatment is preceded by the patient's choice to undergo it. In legal terms, the patient's consent to the treatment may be valid once he or she is informed in broad terms of the nature of the procedure which is intended. But the choice is, in reality, meaningless unless it is made on the basis of relevant information and advice. Because the choice to be made calls for a decision by the patient on information known to the medical practitioner but not to the patient, it would be illogical to hold that the amount of information to be provided by the medical practitioner can be determined from the perspective of the practitioner alone or, for that matter, of the medical profession. 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; whether the patient has been given all the relevant information to choose between undergoing and not undergoing the treatment is a question of a different order. Generally speaking, it is not a question the answer to which depends upon medical standards or practices. Except in those cases where there is a particular danger that the provision of all relevant information will harm an unusually nervous, disturbed or volatile patient, no special medical skill is involved in disclosing the information, including the risks attending the proposed treatment. Rather, the skill is in communicating the relevant information to the patient in terms which are reasonably adequate for that purpose having regard to the patient's apprehended capacity to understand that information. ... The law should recognize that a doctor has a duty to warn a patient of a material risk inherent in the proposed treatment; a risk is material if, in the circumstances of the particular case, a reasonable person in the patient's position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it. This duty is subject to the therapeutic privilege.": Rogers v Whitaker (supra)

[84]

29 The plaintiff's evidence then traversed in great detail, the course of the next hours as she perceives them. There is no doubt that she endured a long, painful and distressing labour before giving birth, assisted with the use of the vacuum extraction technique. In my view, it is unnecessary to detail all the evidence given about those hours by the plaintiff, some of the other medical staff and the defendant, for the reasons I set out below.

30 At the end, after birth was achieved, the plaintiff was further distressed by the fact that the baby did not cry or move. She says she briefly thought the child was dead. She was also distressed at what she thought was happening to herself and by what she perceived as lack of care from the defendant following the birth in terms of pain relief. It is not necessary either to set out here the various complaints that she makes about this period. She had lost a lot of blood. She was told by another medical practitioner that the baby had had a difficult birth. She decided to not allow Dr Swan to treat her any longer.

31 She told Dr Swan the next morning.

32 It is clear that, especially during the early part of this time but even after discharge from hospital, the plaintiff suffered some pain and discomfort and disability. She says she suffered dizziness from loss of blood, had breastfeeding difficulties and feared bathing the baby in case she fainted.

33 Much of the pleadings and a very great deal of the evidence was concerned with the activities or lack of activity of the defendant during these hours. Indeed, much of the factual pleading of events was not in issue. The plaintiff says that during these hours in numerous ways, spelled out in subpar (a) to subpar (n) of par 27 of the statement of claim, the defendant breached her unchallenged duty of care to the plaintiff. As a result, she says, she suffered the particularised personal injuries, incision to perineum, pelvic floor injury; nerve damage, bladder dysfunction causing urinary incontinence, blood loss and associated anaemia, and post-traumatic stress disorder and nervous shock.

34 The plaintiff was in the hospital for nine days including the days of admission and discharge. A complaint is made that that was an unusually long time but, apart from her own statement of belief, there is no evidence of that. Although a number of persons of relevant knowledge gave evidence of other matters, they were not asked on the point. Her conclusion that this was excessive was explained thus:

[87]

"I don't have a very good self-image of myself at all really. I have a lot of scarring from stretch marks right across my abdomen, round my back. Obviously he was a huge baby. I stretched an unbelievable amount. I have got scars all over my belly. I won't be seen dead in a pair of bathers or bikini or short tops. I hate my husband looking at it. I will make sure that if I have a shower or get undressed, he is not in the room when I do it. I hate it. I hate looking at myself in the mirror with those scars so I won't - I hate it. I hate him looking at it or anyone else. I don't want anyone else to see the scars.

Did this cause issues in relation to your marriage since Shane's birth?---Mark always tells me I shouldn't worry about it. It doesn't worry him, but it worries me. If I don't like it on me, I don't want anyone else to see it. It frustrates him and he, sort of, gets angry at me about it, but I can't help it.

You have had two children now. Do you think that your relationship with the two children is different because of the manner in which Shane was born?---I love both of my kids, but I know the difference between having Mitchell and having Shane. Mitchell was there instantly. The minute he was born he was on me. He was on me while I was stitched. He never left my side. You know, I could breastfeed him, I could do his nappies. I could do everything. And Shane, I wasn't given a chance. I used to have to send someone in to the nursery to ask about him or buzz someone else to look after him. The bonding between Mitchell and I was so different to Shane. I wasn't given a chance with Shane. The only other thing is that I have always felt bad about putting Shane in that position. I mean, I always kick myself for not acting on my instinct, you know. I in myself knew that something was wrong. I kept saying, 'This baby is huge. Is it big?' and Dr Swan kept assuring me that it wasn't and if I had only done something, you know, kicked up more of a fuss. You believe the doctor. You think, well maybe I am just whingeing about some crap. Maybe, you know, you are a bit over-exaggerated or whatever but I will never forgive myself for not - I knew something was wrong. I should have done something, you know, but I wasn't to know. I was being reassured by Dr Swan and he nearly died because of that."

[95]

"Do you recall then Dr Swan discussing that, yes, this would be a big baby, that Dr Hugo had seen you and that that shouldn't be a problem?---Dr Swan never, ever told me that my baby was going to be a big baby. I would never have progressed to a natural delivery if I knew my baby was going to be a big baby.

What you mean is not a big baby but a baby of such a size that it was going to cause you problems?---Anything over 9 pound to me was a big baby. Dr Swan knew that. We had discussed this because we had talked about, you know, the biggest thing, the reason why it kept coming up was because of the episiotomies and the tears and I didn't want any of that.

I suggest that that's a reconstruction that you have made after the event, the importance that you are placing on the figure of 9 pounds, that in fact it was discussed that it was a big baby and that it would be a long labour?---It was never discussed and I know because it was my biggest concern the whole way through the last 2 months of my pregnancy, and every time I was reassured.

Do you remember discussing epidurals towards the end of July with Dr Swan?---I remember discussing epidurals but I don't recall at what particular time. I have spoken to her about them.

I suggest to you that at the appointment on 27 July, the appointment at the end of July, Dr Swan indicated that you should consider ... having an epidural because this was going to be a long labour?---Never. The only time that Dr Swan requested an epidural was the time when the head wasn't engaging and ... when I would sit up on her examination, the baby's head ... go into the correct place but when I lay down, he would pop out of place. Dr Swan then actually asked me or told me that we might be in for a caesarean if the baby's head is not going to engage properly. We discussed the epidural then because I actually said, 'Can I be knocked out for the caesarean or do I actually have to be awake?' That's when we discussed the epidural then at full length, that it's safer for the baby to have an epidural through caesarean. Dr Swan never recommended me to have an epidural during the natural delivery because of the big baby."

[102]

52 The plaintiff's claim on that issue must relate to negligence alleged against the defendant prior to or at a point of time when she alleges stretch marks had not appeared and to consist of not having arranged a caesarean section at that point of time.

53 She said she had bedwetting problems six or eight times over eight months until she finally resolved them by visiting the toilet two or three times each night. The problem was worst shortly after her first birth. She agreed they had resolved to a degree before her second pregnancy when they again worsened. The plaintiff saw Dr Gunnell concerning urinary incontinence in October and November 1998. He referred her for physiotherapy, advising that until she had completed her family, surgery should be delayed. She saw Mr Jeffrey about it almost a year after her second delivery. When she saw Mr Jeffrey, they were as they had been following the first birth.

54 She says she was still deciding on her family size and denies that this was because her problem had largely resolved. She was told that another vaginal delivery could worsen the problem, although Dr Gunnell said the damage was already done. She said that prior to the second birth, she had a "full-on" incontinence problem which could not get worse and she was, in any event, already planning corrective surgery.

55 The plaintiff was also cross-examined as to what she had told Dr de Felice, a psychiatrist, as to advice she had been given concerning the questions whether her first child had suffered any long term damage at birth and of her relationship with the child and also as to whether her second son suffered asthma. Strictly, the first and last of these issues are outside the scope of these proceedings. They are all relevant, however, but only as to issues as to her state of mind. There is also an issue as to what she told Dr de Felice about the defendant having sutured the episiotomy before the placenta was delivered. It is not possible to make findings as to what she said exactly to Dr de Felice. In each case, though, it can be said that the plaintiff has apparently taken a "worst case" view and has relied on third hand "knowledge". Her complaint in respect to the second matter really is that she was unable to have adequate time with the baby during the week or so after birth.

[106]

"The question of a caesarean section delivery was not something which your wife specifically referred to Dr Swan?---When, during the birth or - - -

During the antenatal visits?---It didn't really come up, although if she was going to have a big baby then she would prefer to have a caesarean.

She didn't say, 'If I'm going to have a big baby I want a caesarean section,' did she?---That's what Tammy did.

That's what, no doubt, you would like to have happened after the traumatic experience of your son's birth, but at the time there was no mention of a caesarean section if it was going to be a big baby?---Yes, there was because Tammy didn't - Tammy was petrified of having a big baby. She didn't want a big baby - - -

You knew that Dr Swan didn't perform caesarean section procedures?---Yes, that's right. She told us that.

I suggest to you that if there was a suggestion that you wanted a caesarean section baby, you would have been referred to a doctor who would do one?---Yes, that's right.

There wasn't a suggestion - - -?---We'd spoken about if Tammy got - if the baby was going to be big that we would want a caesar but, I mean, after that it never - that was, you know, in the first few visits and it didn't come up after that.

...

If you could turn back the clock you would like to think that something had been said earlier about having a caesar?---Yes, but nothing had been said.

No. Nothing had been said by Dr Swan. Nothing had been said by your wife?---Only at the beginning. We discussed that right when Tammy first became pregnant.

Nothing was said about, 'I want a caesar if the baby is big'?---That's what Tammy asked. That's what we've said in the beginning. We said, 'If the baby looks like it's going to get big we'd rather have a caesarean.'

You said that at the beginning?---Yes, when we first met Dr Swan.

So that wasn't said when the weight gain went on?---No, because the baby didn't appear to be that big.

Sorry. At the very beginning of the antenatal visits you're saying it was then that your wife said - - -?---I mean, Tammy said, 'If it looks like I'm going to have a big baby, I'd rather have a caesarean than be torn and cut.'

Why would she - - -?---Because she was paranoid about being cut. It only came up maybe that one time to try and like - she just said, 'I don't want a big baby. If it looks like I'm going to have a big baby, you know, I'd rather go down that road.'

It only came up one or two times, did it?---About having a caesarean?

Yes?---Yes, in the beginning; yes, that's all I - - -

In the very beginning?---Yes. Well, the first 2 or 3 months.

Not in the last month before birth?---Not that I can recall.

No?---Because Dr Swan reassured us that - - -

So not at the time when you say your wife has put the weight on?---I can't recall, no.

In fact never?---Maybe never. I don't recall.

Never in the antenatal visits was it said - - -?---Only at the beginning.

- - - 'If it's a big baby I want a caesarean section'?---Yes, Dr Swan knew that. She knew that. It was quite clear.

It was quite clear?---Dr Swan agreed with us, 'If it looks like it's going to be a big baby - if there are any problems she wouldn't hesitate to get a specialist.'

Yes. That's what she said, that she would get a specialist if she thought it was necessary?---That's right.

There wasn't discussion where it was specifically said, 'I want a caesarean section if it's a big baby'?---That's what I just said that's what - we just said, 'If it's going to be' - like, at the same time if it looks like it's going to get big we'd rather have a caesar than being cut or torn.

This was right at the beginning?---Yes, the first few visits."

[121]

74 Later, she said that a large baby would not be "a daunting factor" for her provided the head was engaged.

75 She agreed that an average birth weight is about 7-1/2 pounds and may have said she expected an average weight.

76 However, she did not agree that there is a connection between maternal weight gain and foetal size. Nor did she agree she had estimated the baby's expected birth weight at seven pounds to 7-1/2 pounds.

77 She said she had intended to consult a specialist while the plaintiff was at the hospital on 4 August because the plaintiff was over term and the baby was large. She was concerned about delivery of the shoulders. The fact also was that the CTG trace was non-reactive. She had told the plaintiff that she wanted her to see a specialist before going home and suggested Dr Blair. The plaintiff had asked for Dr Hugo who had previously performed an ultrasound. She had not mentioned her concerns, because she wanted the plaintiff to remain positive about a vaginal delivery. It was coincidental, however, that Dr Hugo had happened to be at the hospital. He had not limited his advice to repeating the trace and if it was non-reactive, to have the plaintiff return home for induction the following week. He conducted an examination, estimated birth weight and expressed the opinion that the plaintiff would deliver the baby vaginally without difficulty.

78 By the end of the pregnancy, she said, she felt the baby would be a big one. Dr Hugo estimated its weight at eight pounds or 8-1/2 pounds. She thought it bigger than that, although she was not sure she had expressed that to the plaintiff. She knew that difficulties in labour increased with baby size but did not agree that incontinence problems or pelvic floor damage did so. She knew ultrasounds were unreliable for weight and, although she said she suggested one at one stage before Dr Hugo was consulted, she had been dismissive of it. Dr Hugo, a specialist in ultrasound, had not recommended it for large babies. Although the baby was big, the head was going down, which was a positive sign for vaginal delivery even though there was a higher probability of birth difficulties.

79 The defendant agreed that the plaintiff had expressed concerns as to the size of the baby at the time of the defendant's arrival to induce birth early on 9 August. She said she indicated she believed the baby would be about nine pounds to 9-1/2 pounds, bigger than Dr Hugo's estimate.

[133]

82 Evidence was called from two midwives who were present at the birth, Ms S M Bradshaw and Ms P D McGready. They explained their record keeping process and their observations.

83 For reasons which I set out below, it is nonetheless not necessary, in my view, for me to recite here their evidence of the day's events. Of course, a large number of particulars of negligence relate to this period of time. Their accounts are, in any event, largely common ground, save that their account of the last minutes before and after delivery differ both as between themselves and with the defendant. It is not necessary for me to make findings as to which account is to be preferred. Given the stresses involved, the passage of time and the different vantage points, some differences are not unexpected. All, I have no doubt, were giving as accurate and truthful account as they could. It is clear that this was a long and distressing delivery. It is important to stress again that in the end (however the exact sequence of events occurred), notwithstanding shoulder dystocia and other issues including the use of a resuscitation trolley, the baby was delivered without damage. Of course, the claim in these proceedings relates to damage alleged by the mother, to which I turn in more detail later.

84 Thus there are differences between the accounts of the final delivery of the baby as between the plaintiff, the defendant and each of the two midwives, in my view, in the end, nothing really turns on that.

85 A number of experts gave written reports and oral evidence. The plaintiff called Professor E V Mackay. The defendant called Professor Roger Pepperell and Associate Professor Jan Dickinson. I say, at this point, that I clearly and strongly prefer the evidence of Professor Pepperell and Associate Professor Dickinson. They were extraordinarily impressive witnesses whose evidence was clear, direct and obviously informed by deep and current understanding of the areas involved, both at the theoretical or scientific level and at the level of modern clinical practice.

[160]

90 In essence, Professor Mackay's view was that the plaintiff experienced abnormal weight gain which should have been discussed and investigated, especially by ultrasound, to establish foetal size and that there should have been discussion on the possible need for consultant opinion; that foetal size and cephalopelvic disproportion significantly contributed to her difficulties in labour; that it was not appropriate to allow pregnancy to exceed 40 weeks without such tests, further investigations and opinions being sought; that, given the size of the baby and the fact it was a first delivery, a caesarean section should have been recommended; that, under oxytocin stimulation, the plaintiff sought epidural relief when her wishes had been not to, that she had had an episiotomy when she had wished not to; that there were a number of epidural top-ups resulting from the failure to appreciate the underlying cephalopelvic disproportion and the uterine hyperstimulation; that the defendant should have recommended an emergency caesarean section and, at some point during the labour, have arranged for intervention or assistance of an obstetric specialist; that earlier delivery would have avoided vacuum suction delivery necessity; and that more appropriate earlier care of the problem of cephalopelvic disproportion would have avoided episiotomy, albeit such is appropriate in normal circumstances with an assisted delivery and prolonged second stage of labour and non-reassuring fetal status, and would have avoided the fact that the baby was stressed prior to delivery (tachycardia), related to hypoxia and/or fetal head compression and suffered shoulder dystocia at birth.

91 Giving oral evidence, Professor Mackay essentially made the following points as to the clinical and antenatal phases of pregnancy: that the baby's very large size, in the 99th percentile, would be indicated best by the mother's impression supplemented by weight gain, vaginal examination which would give an impression of head size, general abdominal examination of the fundal height over time and, if concerns were raised of a large baby, the use of ultrasound. If a large baby were indicated, the mother should be engaged in discussions promoting informed decision-making and consent, given the alternatives and risk benefit analysis. His position is that he would recommend an elective caesarean section.

92 In the labour phase, Professor Mackay is critical of what he essentially regards as insufficient steps having been taken in regard to certain situations, the failure to obtain the advice of an experienced specialist obstetrician and the failure to engage in serious discussions as to the alternative options available, they being "pushing slowly on or caesarean section".

93 In particular, the plaintiff relied on expert evidence of Professor Mackay as to the plaintiff's care between 2.30 pm and 6 pm prior to delivery.

94 Professor Mackay's view was that, in particular between 2.30 pm and 6 pm prior to delivery, the plaintiff's condition made minimal progress even with abnormal use of oxytocin, putting the baby at risk of tachycardia.

95 It is clear from his evidence that Professor Mackay was flagging concerns which he said should have been in the minds of the medical practitioners involved at various stages before, during and after birth, but was not identifying necessarily the consequences of the history for the plaintiff. For example, he could not comment on psychological or psychiatric consequences. It is also clear that his opinions in some areas rely upon the plaintiff's account of events.

96 Professor Mackay's concerns about the baby's development are at odds with those of Dr Clements, a paediatrician. Professor Mackay is not a paediatrician. His concerns about the plaintiff's position in any future pregnancy and birth are at odds with the now known history of an essentially uneventful pregnancy and vaginal delivery. His concerns about bladder issues have been resolved by Mr Jeffrey's treatment. He is not an expert in that field, as I understand.

97 It is important not to forget that caesarean section is not itself without risk. Indeed, Professor Mackay himself wrote:

[163]

"The kinds of risks if I can just ask you to confirm some of them. There are risks of drug overdose?---What sort of drug overdose?

Anaesthetic drug overdose?---I don't think we ought to get confused about caesarean section versus a normal vaginal delivery. We ought to be comparing a caesarean section versus what was existing in the case of a patient with a macrosomic infant.

Doctor, I'm just asking you at the moment to confirm for me these are the risks associated with a caesarean section delivery. That's all I'm asking you?---Yes.

The first I put to you was the risk of anaesthetic overdose?---Yes.

There's a risk of haemorrhage from the operation itself?---Yes.

There's a risk of damage to the bladder and the bowel by the operation?---Yes.

There's a risk of infection to the abdominal wall?---Yes.

To the uterus?---Yes.

To the urinary tract?---To the bladder, yes.

And to the chest?---Yes.

There's a risk of thrombo-embolism as a result of caesarean section?---Yes.

There's a risk of wound infection from the wound that's incised in order to do the caesarean section?---Yes.

In the case of a caesarean section delivery after labour has commenced, those risks are increased?---Some would be, yes.

The other feature you have in relation to a caesarean section delivery is that it will be necessary after a caesarean section delivery for the mother to be taken to a recovery room and separated from the child?---For a brief period for recovery.

There wouldn't be - - -?---Normally there's a period in recovery after a procedure such as a caesarean section which is usually for 6 hours until the observations are stable and then she would go to the ward, so I don't think the period of separation would be that significant. The mother would have the baby immediately after the baby was born and with more caesarean sections now, she was under epidural anaesthesia she would immediately bond to the baby.

My question wasn't about immediately bonding with the baby?---Yes. We were talking about the mother's access to the baby I thought.

She would be separated in a recovery room for some hours after the delivery?---Yes. Yes, that's correct.

She wouldn't have the kind of immediate contact with the baby that she would have with a vaginal delivery?---Yes, she would have immediate contact with the baby.

Another feature of the caesarean section is that if one caesarean section - if the first child or if a child is born by a caesarean section, in all probability it will be necessary for subsequent delivery to be by caesarean section?---About 60 per cent would have a trial of labour after caesarean section.

40 per cent you're saying would have to have a caesarean?---By choice or by the fact that is was perceived that the condition was recurring, for example, a contracted pelvis that sort of thing, breech delivery; a number of things would - a basic caesarean section rate might be 10 to 15 per cent anyway. That would only leave a residuum of about 70 to 80 per cent who would be eligible for this and some would just elect not to take the risk. An averse woman would say, 'No, I don't want to take the risk.'

The simple proposition, though, is that caesarean section in a first delivery is a strong indication for caesarean section for second and subsequent deliveries?---No, it's not strong. It's on a valuable judgment and I said about 60 per cent would elect to have a trial of labour."

[168]

"Ultimately, apart from in an emergency situation, would you agree that the decision whether or not a woman should have a caesarean section is one for her with the advice and guidance of her medical practitioner and perhaps the midwives? It's her choice, isn't it?---She is certainly in a position to influence that decision and she should be, but she's ultimately not got the experience of either the general practitioner or the obstetrician, depending on the amount of experience the general practitioner has had in labour ward care. The patient has never got the experience of that person and has to rely on what she's told. If she was told, 'I'm going to try and get you to full dilatation. We'll review the situation in a couple of hours, 2 or 3 hours, and if you've reached full dilatation and the head descents down then you'll probably have your baby normally,' I find it hard to believe that most people would then say, 'No, I want to have my caesar now, thank you,' but some will.

That decision should be put to them in that sort of a manner: these are the options, these are the recommendations, you choose the pathway. Isn't that right?---Again, as I've said before, it's difficult to get an informed decision from a patient when you're talking to them about these problems during labour itself and I don't know any labour ward that covers all of the potential problems that are likely to occur in labour to get informed consent beforehand. You can explain things to your patients and you have to assume that they understand and we do explain and I would have said to her if I'd been looking after her, 'Sure, it's taking longer than ideal to get to full dilatation, but I really won't know for another hour whether we're going to make it,' and if at that time when she got to full dilatation the head had still been just at the ischial spines, I would've probably said again, 'I still need to leave you a bit longer because if it doesn't come down any further we're probably going to need to do a caesar, but we won't know because we don't even know what the outcome is likely to be until you get to that stage.'

At the time, let's saying applying it to these circumstances, if you had had the discussion at 5 o'clock when she was still at anterior lip, still at spines, she had had no epidural pain relief for an extended period, she was telling you that she was exhausted and that she didn't think she could go on, you suspected a large baby, wouldn't you at that time say, 'Look, do you want to continue? That's what I recommend we do, we wait another hour but the choice is for you. You can have a caesarean if you can't cope any longer'?---I think you're so close to the stage of getting to full dilatation, I would be reinforcing the fact that I think we're going to get there.

I can understand you might be recommending that, but the option should be given?---That's not generally the way the labour wards would function in terms of the care which is being given by a consultant or a practitioner unless the cervix had been much less dilated."

[176]

"Question 9:

Given that the Plaintiff was carrying a large baby, were there any other clinical indicators that would indicate delivery by caesarean section?

Clearly there had been concerns about the capacity for a vaginal delivery as two separate medical practitioners had assessed Mrs Sheppard's pelvis in the late third trimester. Indeed, Dr Swan had sought the assistance of an experienced obstetrician to assist her decision that a trial of labour was appropriate. The fetal head was not high and the evidence from the two examiners were that it fitted well into the pelvis (indeed, the fact that Mrs Sheppard achieved a vaginal delivery of such a large fetus contests to the capacity of her pelvis).

The overall duration of her labour was not abnormal for a nulliparous woman with a first stage of 8 hours and 30 minutes and a second stage of less than two hours (with an epidural in situ which has been demonstrated to prolong the second stage of labour). The data from Friedman (1978) demonstrates that for nulliparous women the mean duration of the first stage of labour was 11.0 hours and the second stage 1.1 hours. These data are pre-epidural analgesia. Mrs Sheppard had a relatively normal duration of labour with a first stage of 8.5 hours and a second stage of less than two hours. The fetal head was well into the pelvis at the commencement of induction, being 1 cm above the ischial spines. If it had been 3-4 cm above the ischial spines this may have provided a warning of impending difficulties. The second stage was not prolonged, even by the old data of Hellman and Prystowsky (1952) in which the second stage was defined as prolonged if longer in duration than 2 hours. The fact that such a large fetus was delivered via vacuum extraction without severe birth asphyxia (as noted by the absence of early neonatal seizures, no end-organ damage, Apgar score of 7 at 5 minutes) is further testament to the clinical assessment that Mrs Sheppard had a very adequate pelvis.

Additionally, I find it very difficult to concede that a 5.3 kg fetus could be delivered via vacuum extraction in >
Question 10:

Is a placenta which is positioned on the anterior wall of the uterus a contraindication to caesarean section?

No.

Question 11:

Is an estimated blood loss of 1000 ml defined as postpartum haemorrhage, notwithstanding that the baby was large and given that on ultrasound the placenta was positioned on the anterior wall of the uterus?

Postpartum haemorrhage is defined as blood loss greater than 500 mls regardless of the fetal size or placental position.

Question 12:

In your opinion did Dr Swan, a general practitioner, manage the Plaintiff's labour and delivery appropriately?

Dr Swan should be congratulated on her overall management of this case. I find it disturbing that a general practitioner who recognised that a fetus was large (and there are no accurate techniques for assessing fetal weight, especially for large fetuses), obtained an expert obstetric opinion who reassured her that there would be no unexpected difficulties in delivery of the fetus, who successfully managed to deliver a very large fetus with no severe infant sequelae (and I can find no objective evidence that there is any neurodevelopmental sequelae for this child) and no severe maternal genital tract trauma (eg. fistulae, third degree tear) should be the subject of such action. This medical practitioner practiced well within the standard of care and has succumbed to the fallibilities of obstetrics rather than her own failings. Many women who have uncomplicated deliveries report the urinary symptoms described by Mrs Sheppard, as Dr Tim Jeffrey has reported. The delivery was unexpectedly more difficult than expected but there were really very few signs that events would take the route that they did. This case would appear to represent unrealistic maternal perceptions of childbirth than any medical malpractice. This is a woman who presented for her first antenatal visit at 4.5 weeks gestation: probably indicating concepts of pregnancy and childbirth that are unrealistic. This woman should have congratulated Dr Swan on her skill at providing her with a healthy baby (where other medical practitioners may not have coped as well) and a relatively undamaged lower genital tract (as well described by the physiotherapist who could not demonstrate much in the way of abnormality considering the fetal size and shoulder dystocia) and Dr Jeffrey's report.

Question 13:

Given that the plaintiff's episiotomy was sutured in three layers, would you expect the plaintiff to suffer with urine incontinence and associated micturition problems?

Urine incontinence is a complication of pregnancy and childbirth. The episiotomy repair would relate more to bowel function than urinary function and from the reports would appear to have been sutured appropriately. Dr Jeffrey is more expert in the area of urine incontinence than me.

Final comments:

This is a case in which a general practitioner provided antenatal and intrapartum care for a nulliparous woman who delivered vaginally a macrosomic fetus with shoulder dystocia. The ability to accurately ascertain fetal size predelivery is poor for large fetuses. Ultrasound is notoriously unreliable with significant error in the diagnosis of fetal macrosomia (1000 gms would be the error range for such a fetus).

Dr Swan performed well in a difficult situation: attested to by the fact that this huge fetus is alive, has no brachial plexus injury and no asphyxial damage. The severe maternal trauma often associated with the delivery of very large fetuses with shoulder dystocia, such as third and fourth degree tears, rectovaginal fistulae, episiotomy breakdown, did not occur due to her medical skill.

It is always easy to alter management when the outcome is known and one is reviewing a case in retrospect. If Dr Swan or Dr Hugo had known this fetus was so large it is doubtful they would have embarked upon a trial of labour; but the fetal size was not known with certainty and the pelvic signs deceptive in that the fetal head entered the maternal pelvis well, there was no major protraction or arrest disorder in labour. It is also clear that clinical pelvimetry was very reassuring in this case.

The main issue in this case would appear to be that the perception that Mrs Sheppard had of labour and delivery was not fulfilled; however, it did not deter her from another pregnancy or another vaginal delivery. It would be my opinion that there is no evidence of medical negligence by Dr Swan and that she performed well in a difficult obstetric emergency situation. There would be very few medical practitioners who would not be distressed in such a situation in the delivery room, and any perceptions observed by the parents would clearly reflect the human side of medical practitioners who practice obstetrics with its inherent unpredictability."

[184]

"You've indicated that a ground for a caesarean section is the issue of maternal wellbeing. Would you agree that an important part of that is to assess how exhausted the mother is from her pushing efforts?---Yes and no. If you have an effective epidural, then you don't have the woman pushing really early, so that she doesn't get exhausted. That's how I would manage women in labour. Then if they get very tired from pushing, then usually by then the head is well down and you can achieve a delivery.

All right. But there are occasions where an epidural, for whatever reason, isn't being effective. If you've got that scenario and the mother is getting exhausted from contractions of the type that we've got here, these strong contractions for by this stage 4 and a half every 90 seconds lasting 60 seconds, it would be a valid concern to assess how tired and capable the patient was of continuing?---If she didn't have an epidural in and sometimes see that with women who are having, say, home births, who come in, and in fact they're absolutely exhausted by they wish to have a vaginal delivery, one of the prime managements is to get them appropriate pain relief and usually once you find that women are out of their severe pain they can actually start to think rationally. When you're in severe pain you cannot think rationally and the women usually say, 'I just want it out. I just want the pain to go away, get the baby out.' That's not particularly a logical response, that's an emotive response due to pain, so it's important to remove the woman's pain so she can then make a reasonable decision about what she wants.

And if once you've done that she continues to say that she has gone through enough and she would like to now delivery by caesarean, you go along with that and you do a caesarean delivery?---It would depend a bit on the clinical situation. If the head was really low down in the pelvis, then you may well need to talk to the woman about the difficulty in performing a caesarean section in late labour. They can be very morbid procedures for the woman and for the foetus. It's often very hard to get the foetal head back up and in fact you can cause severe trauma to the foetus in removing it from the pelvis to deliver it through the abdomen. The woman has got a very vascular uterus at that stage and you can easily extend the incision down into the cervix and you can end up with - they are some of the most difficult caesarean sections you can do, so you really need to talk to the woman about that so that she knew that would be difficulties and it may be inappropriate to perform a caesarean section in late labour.

H.H. JACKSON DCJ: In fact in that situation you would be telling her not to, wouldn't you?---Yes."

[186]

"Question 9:

Given that the Plaintiff was carrying a large baby, were there any other clinical indicators that would indicate delivery by caesarean section?

Paragraph 1. I do not believe that the plaintiff was accorded a true trial of labour as I understand the term. The statement that because a vaginal delivery was achieved contests (sic) to the capacity of her pelvis represents a major point of difference between us.

In normal circumstances, this can happen - albeit with the possibilities of morbidity to the mother's pelvic floor and the baby. When there is an unacceptable degree of uterine stimulation to the uterus, as in this case, no such conclusion can be drawn. One may be able to squeeze the head through via moulding, only to encounter the unpleasant complication of shoulder dystocia, where there is no opportunity for slow accommodation.

Similarly, no valid conclusions can be drawn as to the normality of the duration of the stages of labour when the uterus is being unnaturally (and unsafely) hyperstimulated.

I do not consider that the satisfactory state of the baby at birth contraindicates the above. A strong baby with good metabolic reserves can survive significant stress during labour.

Paragraph 2. Again, I believe that the influence of the oxytocin infusion has been underestimated.

Question 12:

In your opinion did Dr Swan, a general practitioner, manage the plaintiff's labour and delivery appropriately?

I consider, on balance, that the degree of difficulty of the delivery could well have been predicted if there had not been an improper use of oxytocin stimulation. If safe techniques of labour management are in place, there is less need to be concerned regarding fetal size. I do not consider that this labour was managed 'well within the standard of care'. The delivery would not have been unexpectedly difficult, in my opinion, if the labour had been managed appropriately.

Question 13:

Given that the Plaintiff's episiotomy was sutured in three layers, would you expect the plaintiff to suffer with urine incontinence and associated micturition problems?

Urinary incontinence is a complication of pregnancy and childbirth. The more severe it is and the more longstanding, the more likely it is that there was trauma to the pelvic floor (muscle and supports) and/or the pudendal nerve."

[207]

"Fortunately for Ms Sheppard, I don't think she has developed a complicating ongoing psychiatric disorder. I note the initial symptoms that she described which I would take to be the level of distress and grief that one would expect given such circumstances. Fortunately, she hasn't developed Post Traumatic Stress Disorder and she did not describe sufficient symptoms to warrant a diagnosis of a complicating depressive or anxiety disorder. This is not to say that the emotional distress that she described was not significant, only that she hasn't had a complicating psychiatric illness.

As I have described above, she has had ongoing distress at various times subsequent to the delivery, including significant anxiety with her second pregnancy, but again I would conclude that these emotional responses fit within the bounds of a 'normal' emotional response to what was a traumatic experience for her.

Now, Ms Sheppard does not have any ongoing psychiatric disorder but does have psychological symptoms in the form of regrets and self recriminations, effects on her self-image and secondary effects in terms of insecurity regarding her husband, as well as concerns about problems that may arise for her son into the future. I note also the urinary difficulties that Ms Sheppard describes as having occurred subsequent to her delivery, ...

Certainly, they provide limitations that have added to her distress. ...

I think Ms Sheppard should be considered to have an excellent prognosis from the point of view the emotional distress that I have described above. In fact, I think that one should conclude that she has displayed a great deal of resilience in the face of this traumatic experience. There is potential for further improvement in terms of her emotional symptoms. If she were to have an operation to improve the urinary difficulties she is having now, this would be of assistance to her emotional state. Furthermore, and probably more particularly, if there are no complications for her son, Shane, from the effects of the delivery, then this will provide a further relief for Ms Sheppard. Finally, with the passage of time and hopefully an ongoing good marital relationship, some of the issues regarding her self-image and self-esteem might improve. Describing the above, I am indicating that this further improvement might occur over the period of a number of years.

Alternatively, should her urinary difficulties not be able to be assisted, or if there are complications in this with further treatment, this could see further distress and a worsening of psychological symptoms. If her son were to develop 'mental problems', which I suspect are delays in his developmental milestones, and if these are attributable to the delivery, I think one could expect that this would be distressing for Ms Sheppard and likely to see a worsening of certain of her emotional symptoms. Finally, if there are interruptions or difficulties in her ongoing marital relationship, this might exacerbate any difficulties she might have with self-esteem and self-image, though of course these marital difficulties may or may not be independent of the psychological consequences subsequent upon the delivery. Again, you will understand that the time frame is likely to be extended over a number of years.

Having said this, all being equal and developments occur as Ms Sheppard currently predicts (or hopes), the more likely outcome is of further gradual abatement of her emotional symptoms, albeit over a number of years. ...

I don't consider that Ms Sheppard presently requires any medication or other forms of treatment, nor do I think there will be any particular need for such treatment into the foreseeable future. Of course this is dependent upon the developments I have described ... I think it is impossible to predict exactly what treatment requirements might be in the event of any untoward developments."

[209]

134 On certain matters of fact, findings of credibility need to be made.

135 Dr Swan was subjected to minute, detailed cross-examination of the course of events during the plaintiff's time under her care. The defendant was both honest and attempted to be painstakingly accurate and fair to others. Where the parties differ, the contemporary records tend to support the defendant. A large number of allegations of negligence are made. She gave very thoughtful and careful attention to the questions and her answers and I was impressed by her honesty and thoroughness. She is a very experienced practitioner in the limited field of obstetrics in which she practices and, obviously, cares deeply for her patients and their babies.

136 For the commonsense and practical reasons given by the defendant and in light of the expert evidence concerning the predictability of birth weight, evidence of which the defendant was aware, I do not accept the plaintiff's evidence that she told the defendant that if the baby was to weigh nine pounds or more, she was to be transferred to other care for a caesarean section to be performed. Nor do I accept her evidence and submissions that, if offered a caesarean section during labour and was properly advised about that, she would have made an informed decision to do so. The plaintiff never herself raised the issue. Nor do I accept that, on medical grounds, the defendant had a duty to do so. Whilst Mr Johnson argues that the defendant has no memory and no written record of the issue on which the plaintiff is adamant, in my view, the lack of any clinical note of such a matter, in any event, suggests it did not occur.

137 It is to be noted that no complaint of breach of any such arrangement is made amongst the abundant particulars. Indeed, no pleading alleges such an arrangement, although counsel for the plaintiff addressed it in opening.

138 That is not to suggest that the plaintiff and her husband did not have concerns about delivery of a large baby. That is entirely natural. It is also entirely natural and, in my view, within the necessary limits of truthfulness and proper care, desirable that the defendant was reassuring to the plaintiff. The questions are whether there was any explicit agreement dealing with the matter and, if not, whether the defendant, in any event, failed in her duty of care in any respect in relation to the fact that the plaintiff delivered a large baby.

139 Nor do I accept the plaintiff's submissions in closing as to the defendant's consultation with Dr Hugo. I specifically accept the defendant's account of the matters upon which Dr Hugo was consulted. The important issue is not precisely how that consultation came to be organised. In my view, it is entirely reasonable to accept that the records support, or are consistent with, the defendant's account. Neither the plaintiff nor Dr Hugo was able to contradict the evidence. I draw no inference from the lack of any notes made or account rendered by Dr Hugo.

140 In any event, no suggestion was put to him about that. Rather, he agreed that the phrases remembered by the plaintiff as being ones he used were one he did on occasions use. They suggest that the consultation went beyond concern with a non-reactive trace, as does the fact that he undoubtedly performed a vaginal and abdominal examination. Whilst a failure to consult a specialist in the circumstances would, it seems, on the expert evidence, have been a failure of care, the question would, in any event, then become whether it was causative of injury or loss. I refer to causation and quantification matters below.

141 The evidence of Professor Pepperell, which I totally accept, makes his views quite clear - that nothing untoward or negligent took place in the plaintiff's care after admission. Given that and the evidence of Associate Professor Dickinson, I do not intend to deal individually with each of the many allegations of negligence.

142 On the expert evidence which I accept, I do not think it was negligent of the defendant to fail to offer or advise use of ultrasound to estimate foetal weight, as argued for the plaintiff. The evidence strongly shows, in my view, that the plaintiff's emphasis on maternal weight gain and the use of ultrasound for this purpose to have been misplaced.

143 Mr Johnson, in closing, as in evidence, also spent considerable effort to criticise the defendant's care on the issue of syntocinon use and on the issue of maternal distress during labour. For the reasons given, I accept the evidence of Professor Pepperell and Associate Professor Dickinson as to those issues. The related issues of syntocinon and epidural use and maternal distress during labour call for experienced judgment. I am not satisfied there was any breach of duty.

144 Mr Johnson argues that, by 4.30 pm on the day of labour and thereafter, the issues should have been discussed with the plaintiff and a decision left to her, in light of that, to give informed consent as to whether to have a caesarean section. My view of the expert evidence is that it establishes that no such recommendation was called for. In my view, to suppose that informed decision making could, and indeed should, be properly left to the plaintiff in the absence of such a recommendation, is not established. Again, however, questions of causation and loss would arise even if my view on that was to be in error.

145 I am not satisfied that there was a breach of the duty of care.

146 Mr Johnson argued strongly in closing that while the events immediately following delivery of the head of the baby give rise to no allegation of negligence or particular of injury or loss, they go to issues of credit so that the various accounts are matters on which I should make findings of fact. I do not agree. As to the evidence of the two midwives, the issues do not arise - they are not parties and, as mentioned, no legal consequence flows from their evidence. In my view, the differences stem probably from misunderstandings and confusion and, given the passage of time, possibly memory issues also. It is not the case, in my view, that the differences of evidence reflect on either the truthfulness or the accuracy of the defendant (both of which, in any event, I accept) or, for that matter, the truthfulness of the plaintiff. The plaintiff could not, in any event, be expected to be accurate in recounting medical matters at such an emotion-laden moment.

147 It is clear that the plaintiff felt exhausted, emotional and worried for some time after giving birth and that she felt let down by the defendant's failure to explain matters to her afterwards. She terminated the defendant's appointment as her practitioner and consulted Dr Gunnell.

148 The events the subject of this trial were clearly deeply traumatic, not only for the plaintiff and her husband, but for the defendant who, it seems, ceased obstetric practice shortly thereafter.

149 It is inevitable that during this traumatic and difficult process of birth, there will be matters for concern and numerous and varying issues to be considered over a significant period of time. It may be that discussion or consultation afterwards would have avoided a good deal of bitterness. It also may be that the defendant would be well served with a better "bedside manner". These things have, I think, contributed to misunderstandings on the plaintiff's part. In addition though, and much more importantly, the plaintiff seems to have misunderstood or misconstrued a number of matters on which she has little, if any, knowledge or understanding and has taken a "worst case" view of events, which she had, rather naively and optimistically expected to be less difficult than they were. The plaintiff has been taken by surprise and not reassured to the level her personality requires and has drawn unsustainable and over-dramatic conclusions about her experiences.

150 Whilst no doubt truthful, the plaintiff, and perhaps her husband, have, to some extent, both misconstrued and reconstructed events, in my view.

151 No doubt, as a result of this trauma, a number of irrelevant issues started to intrude into the hearing as a consequence - three examples of matters which I refused to allow to be addressed were questions of the defendant's general attitude to epidural use at the hospital in question, a much earlier birth involving a different patient and shoulder dystocia in delivery, and whether the defendant rendered an account to the plaintiff in the present matter. None is capable of assisting in the objective examination of the issues before me. Each was capable of detracting therefrom through the introduction of inappropriate inferential reasoning.

152 Clearly, in some matters, the plaintiff's understandings of events were deficient as when she thought the episiotomy cut was repaired without taking account of the need to deliver the placenta. On other matters, such as the way in which the baby's shoulders were delivered, the events seem to have been confused and confusing in the minds of those present except the defendant. Certainly, everyone concerned including the defendant found them traumatic. The only important questions for me though are whether the plaintiff has established the defendant's negligence and, if so, whether she has also established that this was causative of injury or loss to the plaintiff.

153 The defendant's duty was to use the reasonable standards of care and skill to be expected of a general practitioner experienced in obstetrics in the given and dynamic situations with which she was faced. That she did. Hindsight is of little comfort or utility.

[210]

154 The assessment of damages in a case such as the present, had liability been established, would not be easy.

155 There would be a number of complicating factors.

156 This is not a case like Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232; 72 ALJR 1344 in which it can be said that whilst the plaintiff's care was not negligent, failure to warn of the risks meant that the degree of risk of damage was greater than it would have been had a more skilful and experienced practitioner performed the surgery. There is no such evidence here. Rather, it is said both that failure to recommend a caesarean section meant that a vaginal delivery was performed which the plaintiff would have avoided and that this caused various heads of damage which could have been avoided, and that negligent care itself caused damage.

157 The probability that the plaintiff would have suffered the same damage in any event is a matter which goes to assessment of damages. In the case of a number of heads of damage, that is relevant here. This is not a case in which, in assessing damages, the chance of the plaintiff suffering the same damage given a different course was merely speculative.

158 Individual heads of claim would need to be considered individually.

159 In each case, questions would arise as to whether the head of claim concerned is causally established to be the result of the defendant's negligence.

160 In the case of some areas of complaint, I am not so satisfied, either because the condition complained of is essentially the product of the pregnancy itself, as with stretch marks, or it is not proven that it is the result of the defendant's care, as with incontinence problems. (By consent, the plaintiff tendered a list of her treatments relating to incontinence problems, Exhibit 2. It is agreed that the cost totalled $8,436.60. Treatments on and after 14 September 2001 post-date the birth of the plaintiff's second child. The defendant both denies that any incontinence is the result of the defendant's negligence (if any) and says that after the second child was born, the plaintiff has an onus to show the problem is not the result of that birth.) The plaintiff's case that she should have been recommended caesarean section prior to labour is supported by Professor Mackay and that she would then have avoided post-natal pelvic floor and urinary incontinence problems is supported as a possibility in general terms by Mr Jeffrey. However, if caesarean section occurred after a trial of labour, his evidence is that the matter is then speculative.

161 In the case of others, the question also arises whether an alternative course, such as caesarean section, would have resulted in equal or alternative losses or injuries. Such an issue may be the episiotomy. Caesarean section is, of course, not problem free and the issue of the baby's welfare was, no doubt, paramount.

162 In other issues, such as that of bonding with the child or the episiotomy also, the question arises whether the claim is not simply an emotional exaggeration out of all proportion to reality.

163 There is no sufficient evidence that, in respect of these or other matters, any want of skill and care by the defendant, other than the fact of vaginal delivery, caused unnecessary injury or loss or exacerbated injury or loss. The plaintiff's evidence of unrelenting and unendurable pain levels is not substantiated as being exceptional by those medical staff with experience in the area. However much the subjective experience of pain to the plaintiff, the reality of vaginal childbirth and the plaintiff's wish for it must be kept in mind. It is noted that the plaintiff has since had a second vaginal delivery.

164 As counsel for the defendant argued, the plaintiff has required minimal attention other than for incontinence.

165 Any assessment of damages would be of very modest proportions.

166 It should also be said that a number of Professor Mackay's criticisms went to issues where, in fact, no claim of loss or injury to the plaintiff is made - shoulder dystocia, save as to any maternal distress flowing therefrom is one such, foetal tachycardia another. In fact, neither was causative of loss or injury to the child either.

167 In the circumstances I do not propose to assess damages provisionally in precise money terms.

At a glance

Court

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Before

Catchwords

Source

Catchwords

Judgment (210 paragraphs)

Parties

Cases Cited (4)