Establishing acceptable professional practice - learnings for birth injury claims from the Nemes case

Synopsis

Nemes v South Eastern Sydney Local Health District [1] concerned a medical negligence claim by Erika Nemes and Zsolt Nemes, (the plaintiffs), in relation to birth of their son ‘Benny’. Benny was born at the Royal Hospital for Women at Randwick, (the Hospital), on 2 April 2016 and was later found to have disabilities including infantile seizures and Global Development Delay.[2]

The key issue before Chief Justice Harrison was whether Benny’s disabilities were as a result of an alleged negligent failure by the Hospital to deliver him earlier or whether they were alternatively unrelated to the timeliness of the delivery.[3] The Hospital submitted that the disabilities were never preventable in the sense that they were congenital and unavoidable notwithstanding any earlier delivery.[4]

Facts

Ms Nemes initially attended the Midwifery Group Practice model at the Hospital for management of her pregnancy.[5] She was treated for thyroid issues and scanning revealed normal foetal growth but also uterine fibroids.[6]

On 26 March 2016, Ms Nemes presented to the midwives’ clinic reporting pain and feeling unwell.[7] The Hospital conducted investigations by way of CTG monitoring and ordered bloods, which were found to be reassuring and normal.[8] Ms Nemes was discharged with a note that she was to be assessed antenatally on 31 March 2016.[9] 

On 31 March 2016, Ms Nemes presented to the delivery suite “following possible brachycardia in clinic” and was discharged.[10] No notes about this visit could be located in the Hospital’s records.[11] 

On 1 April 2016, Ms Nemes presented to the Hospital after a spontaneous rupture of membranes at 01:40 and the commencement of contractions at 04:00.[12] Ms Nemes said that she saw a midwife who suggested she did not need to be admitted but could go home until her contractions became more painful and closer together.[13] Ms Nemes was seen by three obstetricians who noted the bradycardia the previous day and also said “CTG this a.m. suspicious – decreased variability”.[14] Ms Nemes was then admitted under the Hospital’s management for continued foetal CTG monitoring.[15]

At 11:38 on 2 April 2016, Benny was born with the assistance of forceps in poor condition.[16] 

On 27 September 2016, when Benny was five months old, he was admitted to the Sydney Children’s Hospital with a six day history of seizures. Following EEGs and MRI imaging, there was suspicion of a left sided brain malformation as the cause of the seizure activity.[17] His seizures evolved into infantile spasms,[18] he developed an intractable seizure disorder and Global Development Delay.[19]

Allegations

In their amended statement and further amended statement of claim, the plaintiffs alleged that the Hospital was negligent in its management of Benny’s birth by failing to: [20] 

1. induce labour and contractions at an earlier stage in light of the early rupture of membranes;
2. administer prophylactic antibiotics after physical vaginal examinations;
3. discontinue Syntocinon, a medication which induces or augment labour, when the CTG became abnormal;
4. deliver the baby at an earlier time when abnormalities were indicated;
5. adequately examine the placenta and to retain it for investigation of the plaintiff’s condition; and
6. conduct a foetal scalp test during labour. 

The decision

The Allegations and Expert Evidence

The allegation of whether the Hospital breached its duty of care by not proceeding to earlier delivery was subject to obstetric expert evidence.[21] The obstetric opinion centred upon interpretation of the CTG trace and not from any observations they were able to make (noting they were unable to do so in any event).[22] Harrison CJ observed that the overwhelming tone of the obstetric experts opinion was that Ms Nemes’ labour with Benny proceeded normally although there were occasions where Benny’s status was suboptimal. However these were considered to be passing or transitory and did not mandate immediate or earlier delivery.[23]

Harrison CJ then turned to the question of causation, that is, whether any purported delay was causative of Benny’s disability. This question was subject to opinions by obstetricians, paediatric neurologists and neuroradiologists.[24] The plaintiffs’ case, based o the opinion of Dr Michael Harbord, was that Benny had suffered intrapartum hypoxia and ischaemia and that he has signs suggestive of hypoxic ischaemic encephalopathy (HIE).[25] The Hospital’s position was that Benny had a developmental congenital anomaly in his brain which manifested in a seizure disorder at five months of age with subsequent Global Development Delay.[26]

The obstetricians who felt they could provide opinion on this issue considered that there was no HIE because there was no evidence in Benny’s newborn period, which was otherwise completely normal, that was consistent with such a severe injury.[27]

The paediatric neurologists, Dr Michael Harbord and Professor Monique Ryan, disagreed on whether there was HIE. Dr Michael Harbord opined there was intrapartum hypoxia and ischemia because there were foetal heartrate abnormalities during the labour and he required active resuscitation after delivery.[28] Dr Harbord also noted there was severe acidosis on the arterial cord gas with pH of only 6.99, nothing this was severe for the purposes of establishing birth asphyxia. Dr Harbord further considered that there were signs of HIE with poor feeding.[29] By way of contrast, Professor Ryan considered that there was intrapartum hypoxia but considered this was transient and did not lead to HIE, as Benny’s pH normalised quickly, the resuscitation time was relatively minimal and his presentation returned normal thereafter.[30] Professor Ryan further opined that Benny’s neurological deficits resulted from focal cortical dysplasia in the left cerebral hemisphere,[31] causing the development of severe epilepsy in infancy which resulted in the persisting neurological deficits.[32] 

The neuroradiologists disagreed on what the radiological images revealed about the cause of the disabilities, but they agreed that there was a significant amount of speculation involved in their respective interpretations of the imaging.[33] As radiographic evidence was not determinative, Harrison CJ referred to comments made by one of the neuroradiologists, Associate Professor Lee Coleman. Professor Coleman commented  that assistance can be taken from the clinical history and the views of the clinicians in relation to the question of whether Benny exhibited signs consistent with the existence of HIE.[34]

At this juncture, Harrison CJ turned to the evidence of the doctors who saw Benny in the period immediately following his birth.[35] Harrison CJ acknowledged the plaintiffs’ submissions that the doctors had an interest in the outcome of the proceedings,  thereby influencing the weight of their evidence. However, his Honour nonetheless concluded that he could not be satisfied that Benny had been born with HIE in the absence of any record of any significant compromise in the contemporaneous records and the later recollections of those involved in the care.[36] This conclusion was supported by the plaintiffs’ statements about their recollections of Benny, which did not contain any signs consistent with HIE; his Honour noting that it would be unusual for his parents to omit such information on such a critical issue.[37] 

The remaining allegations were dismissed. Harrison CJ concluded that there was no satisfactory evidence to establish, on the balance of probabilities, that the discontinuation of the Syntocin and the failures to administer prophylactic antibiotics, perform a foetal scalp test and retain the placenta caused any loss or injury and had any impact on the outcome.[38] 

At multiple points in the reasons, Harrison CJ preferred the opinion of obstetrician Dr John Keogh, describing his evidence as ‘particularly impressive’.[39] Dr Keogh was described as reliable and persuasive in presenting an impassioned view that was wholly disinterested in the facts.[40] Harrison CJ ultimately accepted Dr Keogh’s evidence that Benny did not sustain HIE as there was no sign of any such injury, which is severe and not a subtle diagnosis, at the time of the birth.[41] Although there were issues with Benny feeding which Dr Harbord suggested indicated HIE, Harrison CJ did not accept this opinion, relying on the evidence of Dr Keogh, who noted that those issues related to maternal anatomical cause and resolved shortly after birth.[42] 

Ultimately it was found that Benny had a brain malformation that occurred or developed in utero unrelated to the birthing process and the Hospital’s management of same.[43] Judgement was made for the defendant and for the plaintiffs to pay the defendant’s costs.

Section 5O of the Civil Liability Act 2002 (NSW)

The Hospital sought to rely on section 5O of the Civil liability Act 2002 (NSW) as a complete defence.[44] Section 5O provides that a person practicing a profession does not incur liability in negligence if it established that they acted in a matter that was widely accepted in Australia by peer professional opinion as competent professional practice at the time.

The plaintiffs submitted that section 5O did not apply in these proceedings as a matter of statutory construction because it provides a defence to a ‘person practising a profession’ and the Hospital was not practicing a profession.[45] The plaintiffs’ further submitted that the Hospital had only led obstetric evidence which did not bear upon the determination of the actions of the midwifery team who were in charge of the care of the mother and baby.[46] 

Harrison CJ ultimately did not substantively deal with the plaintiffs’ submission about the Hospital’s entitlement to rely on section 5O given his conclusion that the plaintiffs had failed to establish breach of duty and causation.[47] In any event, Harrison CJ considered the issue more broadly and found that the Hospital acted in accordance with widely accepted peer professional practice in delivering Benny in the manner in and time it did.[48] In this respect, his Honour stated that:

“the course of the birth of every infant is potentially different from any other. The decisions about whether to deliver vaginally or to intervene surgically before that occurs are inevitably informed by changing circumstances in a dynamic situation. There is not always or necessarily only one course that must be followed. The exercise of professional judgment by equally qualified professionals may legitimately lead to different approaches.”[49] 

In doing so, Harrison CJ emphasised that section 5O does not need establishment of a universally accepted practice and the expression of different opinion does not, by itself, negate the ability to rely upon the provision.[50] Section 5O contemplates more than one solution to the same problem, which Harrison CJ observed to apply to cases such as this where decisions on delivery and birth are informed by changing circumstances.[51]