By Louise Cantrill, Partner and Melanie Farry, Law Graduate
The New South Wales Supreme Court recently made some key observations about the operation of s 5O of the Civil Liability Act 2002 (NSW) when assessing the actions of staff at the Royal Hospital for Women at Randwick in the antenatal care of Bendeguz Nemes (“Benny”) during his delivery on 2 April 2016.
This case is important as it emphasises that there may be more than one acceptable course of action open to professionals seeking to rely on the s 5O criteria as part of their defence to a negligence claim. It has broader application than just medical negligence matters.
In this matter, the court found in favour of the defendant despite the often-conflicting evidence given by medical experts.
Erika Nemes (Benny’s mother) experienced a spontaneous rupture of membranes on 1 April 2016 and was admitted to hospital after being reviewed by three obstetricians. Benny was born on 2 April 2016 at the Royal Hospital for Women at Randwick with the assistance of forceps. Benny was born in a poor state and required some short-term resuscitation, however, the hospital staff promptly responded, and he recovered quickly.
Five months after his birth, Benny was admitted to the Sydney Children’s Hospital after having six days of seizures. Benny was found to have developed an intractable seizure disorder and Global Developmental Delay.
The plaintiffs argued that Benny’s injuries were the result of the negligence of the defendant in its failure to deliver Benny earlier and that he would not have developed such injuries had this occurred.
The defendant argued that Benny’s injuries were the result of an in-utero developmental condition which manifested in his respective diagnoses five months post-birth. Moreover, the defendant argued that it had acted in accordance with competent professional practice which was widely accepted in Australia by peer professional opinion in accordance with s 5O.
The main issue in dispute was succinctly identified by Harrison CJ at paragraph [6], and was namely “whether or not Benny’s problems were avoidable, in the sense that they were caused by the defendant’s failure to deliver him sooner, or were never preventable in the sense that they were congenital and unavoidable.”
In making its decision, the court considered six distinct questions to address the main issue, namely:
The court also considered whether there was a failure to adminster a foetal scalp test.
The court determined that the answer to each of the above questions was ‘No’, finding that Benny was never encephalopathic (a birth injury resulting from a lack of oxygen and blood flow to a baby’s brain), and that it was therefore not possible to attribute Benny’s brain condition to a perinatal cause.
The court extensively considered expert evidence provided by the three sets of experts retained in the matter. The court ultimately found that even though there was minimal consensus on the precise course of action the doctors should have taken throughout Benny’s delivery, the action which was taken was in accordance with widely accepted peer professional practice.
The court acknowledged that in medical situations such as childbirth, ‘[t]here is not always or necessarily only one course that must be followed’ and that ‘[t]he exercise of professional judgment by equally qualified professionals may legitimately lead to different approaches’ (paragraph [38]). Just because one professional disagrees with another on the proper course of action, that does not negate the defendant’s ability to rely on the s 5O provision. This is because s 5O does not require the establishment of a ‘universally accepted practice’, only that the practice of the defendant is one that is widely accepted.
In assessing expert evidence, the court notably placed emphasis on expert evidence which was balanced and logical, and which did not attempt to favour the position of the party who retained the expert. The evidence of Dr Keogh (an obstetrician) was found to be particularly persuasive given that he was ‘giving evidence that was based upon an impassioned but wholly disinterested view of the facts.’ While the court acknowledged the differing opinions of other experts, their opinions only indicated that an earlier delivery might have been feasible without causing harm to Benny or his mother. These opinions however did not establish that the decision not to proceed with early delivery at the time was negligent.
Furthermore, the expert evidence identified that if Benny had encephalopathy at the time of birth, such signs of the injury would have been obvious and recorded by doctors. Having regard to the observations made by the doctors involved in Benny’s birth, the court was unable to accept that Benny had encephalopathy because, if he had, it would have been ‘observed, recorded and followed up by these doctors and others at the hospital immediately following his birth’ (paragraph [109]). Such observations highlight the importance of accurate and contemporaneous file notes for medical practitioners in defending potential future claims.
The principles in this decision has wider application than medical negligence and can apply to professional negligence matters more generally. As the court indicated at paragraph [39], s 5O acknowledges the possibility ‘that more than one solution to the same problem may qualify’ as being a widely accepted practice. Even though other professionals may disagree with the action taken, this does not in itself constitute a bar to the s 5O provision.
The court’s observations also illustrate that courts are often entirely dependent upon expert opinion on matters outside the court’s expertise. Expert evidence therefore needs to be objective and logical to assist the court in assessing a claim. Merely speculative opinions about what could have happened or what could have caused injury will not be given great weight.
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