A husband and wife, who both suffered psychological harm following the stillbirth of their first child, have successfully sued both the hospital and the obstetrician in negligence, with the Supreme Court of the Australian Capital Territory awarding nearly $900,000 to the couple.
On 13 January 2011, Ms KS was admitted to Calvary Private Hospital as a patient of Dr Andrew Foote, an obstetrician and gynaecologist. Ms KS was pregnant with her first child, which had been conceived by IVF. By 13 January 2011 the baby was one week overdue and it was agreed that Ms KS would be induced. The induction process was started at about 4.30 pm. By 4.58 pm abnormalities were apparent in the baby’s heart activity, detected via a foetal heart rate monitor. In the period following, there were three separate episodes of bradycardia. The midwife attending to Ms KS did not contact Dr Foote until sometime between 5.50 pm and 6.00 pm. Dr Foote ordered a Caesarean section, with Ms KS arriving at theatre at 6.35 pm. However, the baby was delivered stillborn at 7.00 pm.
Ms KS and her husband Mr XT commenced proceedings in the Supreme Court of the Australian Capital Territory against the hospital and Dr Foote, in negligence and claimed damages for psychological harm caused by the stillbirth of their first baby. Ms KS and Mr XT alleged various particulars of negligence, including but not limited to allegations that the hospital and Dr Foote were negligent in failing to adequately interpret the cardiograph, failing to classify and urgently carry out an emergency Caesarean section, failing to resuscitate the baby properly or adequately, and as against Dr Foote, failing to make himself available to perform the Caesaran section earlier and failing to seek assistance and arrange for another competent surgeon to perform the procedure.
The hospital conceded liability. Dr Foote admitted liability in failing to advise hospital staff of the emergency nature of the caesarean.
His Honour Burns J found that Dr Foote failed to recognise Ms KS’ higher risk of stillbirth to advise her accordingly as to the timing of induction. Dr Foote had a duty to warn Ms KS of a material risk inherent in delaying delivery. The risk was material because Dr Foote was aware, or should have been aware, that a reasonable person in Ms KS’ position would likely attach significance to it.
Dr Foote’s failure to arrange an urgent caesarean and his participation in other non-urgent procedures constituted a very serious departure from the duty owed to Ms KS. If Dr Foote had recognised the significance of the foetal heartbeat reading as constituting an emergency, and responded accordingly, Ms KS’ daughter may have been born alive and Ms KS and Mr XT would not have sustained injuries.
Accordingly, his Honour found both the hospital and Dr Foote liable, apportioning liability 70% to Dr Foote and 30% to the hospital, with damages awarded to Ms KS for $669,518.15 and Mr XT for $220,373.
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This article first appeared in the CCH Australian Tort, Personal Injury, Health and Medical Law Tracker and is reproduced in full with permission from CCH, a division of Wolters Kluwer Australia: www.wolterskluwer.cch.com.au
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