Coffey v Murrumbidgee Local Health District formerly known as Greater Murray Area Health Service

Case •

[2019] NSWSC 1265

•

27 September 2019

No judgment structure available for this case.

Supreme Court


New South Wales

Medium Neutral Citation: Coffey v Murrumbidgee Local Health District formerly known as Greater Murray Area Health Service [2019] NSWSC 1265
Hearing dates: 5-9, 12-15, 20-22, 26, 28 and 29 November 2018. Written submissions in 2019.
Date of orders: 27 September 2019
Decision date: 27 September 2019
Jurisdiction:Common Law
Before: Harrison J
Decision:

Judgment for the defendant.

Catchwords:

TORTS – negligence – where plaintiff alleges hospital was negligent by failing to transfer her to appropriate hospital for birth of son – where plaintiff alleges hospital failed appropriately to care for son after his birth – where plaintiff sues for nervous shock – whether hospital acted in a manner that was widely accepted by peer professional opinion as competent professional practice – standard of care met by hospital

  LIMITATION OF ACTIONS – torts – where statement of claim filed 7 years and 2 months after events giving rise to cause of action – whether cause of action was undiscoverable until later date – whether plaintiff under a disability such that limitation period suspended – cause of action not maintainable
Legislation Cited: Civil Liability Act 2005 (NSW), ss 43A, 5B, 5O
Limitation Act 1969 (NSW), ss 50C, 50D, 50F
Cases Cited: Baker-Morrison v State of New South Wales (2009) 74 NSWLR 454; [2009] NSWCA 35
Dobler v Halverson (2007) 70 NSWLR 151; [2007] NSWCA 335
Frizelle v Bauer [2009] NSWCA 239
Guthrie v Spence (2009) 78 NSWLR 225; [2009] NSWCA 369
Kotulski v Attard [1981] 1 NSWLR 115
New South Wales v Harlum [2007] NSWCA 120
South West Sydney Local Health District v Gould (2018) 97 NSWLR 513; [2018] NSWCA 69
Sparks v Hobson (2018) 361 ALR 115; [2018] NSWCA 29
Sydney South West Area Health Service v MD (2009) 260 ALR 702; [2009] NSWCA 343
Category:Principal judgment
Parties: James Phillip Coffey by his tutor Kathleen Amanda Coffey (Plaintiff)
Kathleen Amanda Coffey (Plaintiff)
Murrumbidgee Local Health District formerly known as Greater Murray Area Health Service (Defendant)
Representation:

Counsel:
A Bartley SC with R Ingram and JA Hillier (Plaintiffs)
R Cheney SC with J Downing and N Bentley (Defendant)

  Solicitors:
Commins Hendriks Pty Ltd (Plaintiffs)
Curwoods Legal Services Pty Ltd (Defendant)
File Number(s): 2011/108788; 2011/110448
Publication restriction: Nil

Judgment

  1. HIS HONOUR: James Coffey was born at the Wagga Wagga Base Hospital on 19 January 2004. At that time his mother, Kathleen Coffey, had been pregnant for only 27 weeks and 2 days. His extreme prematurity would have compromised his prospects of a satisfactory perinatal outcome in any circumstances. It is contended in these proceedings, however, that those prospects were significantly diminished even further by the hospital’s failings in a number of different respects. In short, but by no means comprehensively, the plaintiff says that from approximately 6am on 5 January 2004, when Ms Coffey was admitted to the hospital, it should have been apparent that his mother was likely to deliver before 32 weeks and that she should have been referred to a tertiary facility for management well in advance of her confinement and his delivery. Principal among the allegations of negligence is that the Wagga Wagga Base Hospital was at that time not accredited to deliver a baby of less than 32 weeks gestation or to manage a neonate of less than 34 weeks gestation. The plaintiff maintains that such limitations emphatically informed what should have been done in the circumstances and that the hospital’s disregard for these imperatives caused him loss and damage. These and other allegations are examined in detail in what follows.

  2. Kathleen Coffey also sues the hospital for damages for nervous shock arising out of her reaction to the circumstances surrounding James’ birth and subsequent events.

Background

  1. James Coffey was born severely prematurely. He was unwell when delivered and remains so. Determination of the cause or causes of his condition at birth and what continues to afflict him is central to the disposition of these proceedings. One of the significant questions that arise is whether or not James Coffey’s outcome would have been different or his chronically depreciated condition lessened or avoided if the defendant had transferred his mother to the Canberra Hospital at a time before his delivery when it was safe to do so. It is in that context, therefore, timely to record at some length the details of his condition at birth.

  2. The following matters, largely taken from the Joint Statement of Assumptions provided to the various conclaves of experts, are not controversial.

  3. Kathleen Coffey was born in March 1974.

  4. Ms Coffey's first child was delivered in February 1997 by elective caesarean section at approximately 26 weeks gestation because of severe pre-eclampsia. Her second child was born by spontaneous vaginal delivery in August 1998 at approximately 36 weeks gestation. Her third child was born by emergency caesarean section in July 2001 at approximately 32 weeks and 3 days gestation after a spontaneous rupture of membranes.

  5. The plaintiff James Coffey was born at the Wagga Wagga Base Hospital on 19 January 2004. Ms Coffey's pregnancy with James was classified by the hospital as “high-risk”.

  6. As at January 2004, the hospital had a Level 5 maternity service but did not have a Neonatal Intensive Care Unit. However, at the same time, the Canberra Hospital was a tertiary hospital and had such a unit.

  7. In June 2003, Ms Coffey informed her general practitioner Dr Harvey-Smith that she was considering another pregnancy. Dr Harvey-Smith referred her to Dr Ian Stewart, an obstetrician and gynaecologist at the hospital. At this time, Ms Coffey also remained under the care of Dr Ian Smee, a consultant physician and cardiologist. Dr Smee advised Ms Coffey of his concern that in light of her previous pulmonary embolism, she may need to take anti-thrombotic therapy during any pregnancy, with possible side effects (some serious) for her and her baby.

  8. Ms Coffey discovered that she was pregnant in about late July 2003 after she did a home pregnancy test. She attended the antenatal clinic at the hospital for her first booking visit on 18 August 2003. She indicated that she was not sure how pregnant she was as she had not had a period since February 2003. Arrangements were made for her to undergo a dating ultrasound in two weeks. Her blood pressure was taken at 150/80 and a full blood count was performed. Dr Mohamed Abdeen contacted Dr Smee, who advised that anti-coagulants would not be required unless Ms Coffey developed pulmonary embolism, provided there were no abnormalities on her thrombophilia screening.

  9. Ms Coffey then attended the antenatal clinic at the hospital on 21 August 2003, at which time she reported some spotting three days earlier. On 4 September 2003, Ms Coffey attended the antenatal clinic again and underwent a dating ultrasound, which demonstrated a single pregnancy with measurements consistent with a gestation period of 7 weeks and 5 days. The estimated date of confinement was calculated to be 17 April 2004.

  10. On 10 September 2003, Ms Coffey returned to the antenatal clinic, which was at 8 weeks and 6 days gestation. Her weight was 108.6kg and her blood pressure was 140/80. She was considered to be obese. Dr Smee reviewed Ms Coffey on 4 November 2003 for treatment and advice for pregnancy related hypertension. He referred her to the hospital on 4 November 2003 where she was admitted for observation and review of her medications. Dr Abdeen reviewed Ms Coffey on 4 November 2003.

  11. Ms Coffey was discharged on 6 November 2003. She was then taking Labetalol 200mg and Aldomet 500mg each three times daily. The plan on discharge was for her blood pressure to be monitored whilst she was at home.

  12. Ms Coffey re-attended the antenatal clinic on 12 November 2003 for a routine antenatal visit at 17 weeks and 4 days gestation. Her weight was 112.2kg, her blood pressure was 110/60 and urinalysis showed no abnormalities. Ms Coffey’s blood pressure medication was the same but she was prescribed Cartia 100mg daily as well.

  13. The attending doctor in the antenatal clinic discussed Ms Coffey's management with Dr Smee who agreed to reduce her Aldomet to 250mg three times daily. A renal ultrasound was performed the same day and reported to show no evidence of renal artery stenosis.

  14. Ms Coffey attended the antenatal clinic on 19 November 2003 for a routine visit at 18 weeks and 4 days gestation. Her weight was 113.3kg, her blood pressure was 120/60 and urinalysis showed no abnormality. Fundal height was 19cm and foetal heart sounds were heard.

  15. Ms Coffey underwent a routine morphology ultrasound scan on 25 November 2003 that demonstrated a single pregnancy and measurements consistent with 19 weeks gestation (estimated date of confinement 20 April 2004 plus or minus 12 days). Because of Ms Coffey's maternal body habitus, morphology assessment was generally difficult but no gross foetal abnormality was demonstrated. The placenta was fundal in position, there was a three vessel cord and the cervix was noted to have a normal appearance.

  16. On 3 December 2003, Ms Coffey attended the antenatal clinic for her next routine visit at 20 weeks gestation. Her weight was 114kg, her blood pressure was 130/70 and urinalysis showed a trace of glucose. The fundal height was consistent with the dates and foetal heart sounds were heard.

  17. Two weeks later Ms Coffey attended the antenatal clinic for a routine visit at 22 weeks and 4 days gestation. Her weight was 112.9kg, blood pressure was 125/65 and urinalysis demonstrated traces of protein, glucose and urate. The fundal height was 24cm and foetal heart sounds were heard.

  18. In the 24 hours prior to 4 January 2004, Ms Coffey had been experiencing contractions (recorded in the notes as "contraction-like pains"), initially 20 minutes apart and then every 10 minutes, lasting 30 seconds. At approximately 1825 hours on that day, Ms Coffey telephoned the hospital and reported contraction-like pains since the previous day. She was advised to proceed to the hospital as soon as possible.

  19. Ms Coffey arrived at the hospital at 1930 hours and was admitted under the care of Dr John Currie with a provisional diagnosis of threatened premature labour. The initial midwifery entry at 2000 hours notes that she was estimated to be at 25 weeks and 2 days gestation and reported experiencing contraction-like pains for the past 24 hours, initially 20 minutes apart, but then approximately 10 minutes apart, lasting 30 seconds. The midwives began an unestablished labour progress chart recording her observations and the contraction pattern. That chart was maintained during the 4–10 January 2004 admission. CTG monitoring was also commenced. The contractions were recorded in both the Unestablished Labour Progress Chart and in the notes.

  20. Ms Coffey stated when admitted that she was taking Aldomet (250mg twice daily) and Labetalol (200mg twice daily). At 1930 hours, Dr Currie was contacted by telephone by the attending midwife. He requested a vaginal examination, which the midwife carried out. Ms Coffey's cervix was found to be thick, posterior and multi os, with the presenting part not felt. Dr Currie gave a phone order for Celestone 11.4mg IMI stat, with a repeat in 12 hours and Adalat 20mg oral stat, to be repeated in 30 minutes and again in a further 30 minutes if she was still contracting.

  21. The Progress Chart entry as at 2000 hours is in the following terms:

"29 y.o GP3 presents to Wd 4 @ 25+2/40 gestation c/o contraction-like pains past 24 hrs, initially 20 minutely, now approx. 10/60 lasting 30 seconds.

O/A t. 37.3 P.88 BP 155/85 FHN 140

U/A: SG 1025 PH5 Trace leuk's Protein +(30)

History of essential HT, Severe PE.

1997: LUSCS @ 26/40, Severe PE.

1998: NVD @ 35+/40

2001: LUSCS @ 32+/40–SROM

Currently on Aldomet 250 mg labetol 200g BD

Dr Currie contacted @ 1930 hr re admission requested VE CX thick, posterior, multi os. PP not felt. Phone order for celestone 11.4 mg im stat (rpt 12 hrs) + Adalat 20 mg ? stat. (rpt in 30 mins + again in further 30 mins if still contracting) CTG in program FHN 140 -150. Pt reports 1 x contraction felt in the last 25 minutes since arrival - not showing up on the CTG.

First dose celestone given @ 1940hrs

First dose Adalat given @ 1940 hrs."

  1. The two Celestone injections were given by Dr Bunting at 1940 hours on 4 January 2004 and 0840 hours on 5 January 2004 in accordance with the phone order by Dr Currie. The Adalat was first administered, again by Dr Bunting on the phone order of Dr Currie, at 1940 hours and then again at 2010 and 2040 hours. It was then continued 4 times daily during the 4–10 January 2004 admission. The CTG was discontinued at 2115 hours. The Progress Chart entry at 2120 hours is in the following terms:

"Pt given 3 x doses Adalat 20 mg ? crushed @1940 hrs, 2010hrs, 2040 hrs. Contractions irregular; only 1 x in past 45 minutes. Vital signs stable: T: 36 P: 90 BP: 140/78@2100hrs FHN 140-150. CTG discontinued c 2115 hrs. T.F 5 WD 4 ATON to settle for night. Pt aware to notify staff if contractions recur o'night."

  1. The Progress Chart entry at 0200 hours on 5 January 2004 is in the following terms:

"0200 N/R. Has had one contraction/tightening at 0130 since 2130 last evening. Nifedipine 20 mg (crushed x SL) attended as per Dr Curry (sic) phone order of QID 20 mg Nifedipine as per contraction observation. Kathleen resting on bed."

  1. During the morning of 5 January 2004, Ms Coffey was reviewed by Dr Bunting and Dr Follett, and later by Drs Bunting, Follett and Currie. Ms Coffey told them that she had had no abdominal pains since 0130 hours. Arrangements were made for TEDS stockings and for Ms Coffey to mobilise gently.

  2. At 1430 hours, Ms Coffey reported that she had not experienced any tightenings that day and had had no PV loss. At 2000 hours, she reported no contractions or tightenings.

  3. On 6 January 2004 at 0635 hours, Ms Coffey reported no contractions or tightenings. She was reviewed by Dr Bunting and Dr Follett during the morning and reported having recently experienced her first contraction since the previous day. The Progress Chart entry is as follows:

"Thanks to the lovely Emma!

Feels Well

First Contraction this am since yesterday

Nil PV loss

BP 120/70

P, Continue to observe".

  1. At 1100 hours, Ms Coffey reported that she had experienced no further contractions since the earlier review by Drs Bunting and Follett. At 2130 hours, she reported having had one tightening which was non-painful and nil PV loss.

  2. On 7 January 2004 at 0700 hours, Ms Coffey reported that she had had no tightenings overnight. Later that morning she was reviewed by Drs Bunting and Follett and reported having experienced two to three contraction-like pains in the previous 24 hours but no PV loss. The doctors noted that observations were to continue and that she was to undergo a glucose challenge test the following week. The Progress Chart is as follows:

"S/B Bunting/Follet

Thanks to social work + OT

Feels well

2-3 contraction like pains in past 24 hours

Nil PV loss.

BP 115/85

P, Continue to observe.

For GCT next week - Wed 08.30 am (fast for 2 hr prior)".

  1. At 1330 hours, Ms Coffey reported one contraction during the day shift. Urinalysis showed the presence of leucocytes and accordingly a mid-stream urine sample was collected and sent to pathology. At 2230 hours, Ms Coffey reported occasional tightenings. Adalat was continued.

  2. At 0515 hours on 8 January 2004, Ms Coffey reported no tightenings. She was reviewed later in the morning by Dr Follett, who took a history that the last contraction-like pain in the lower abdomen occurred the previous evening at approximately 2030 hours, lasting 10 to 15 seconds. Ms Coffey described no pains since. At 1400 hours, she reported two tightenings lasting 20 seconds that were five minutes apart.

  3. Later on the afternoon of 8 January 2004, Dr Bunting received and reviewed the urine culture report from the mid-stream urine taken the previous day. This showed a large number of leucocytes greater than 100 white cells. He also noted that proteus mirabilis had been cultured. Dr Bunting formed the view that Ms Coffey likely had a urinary tract infection, which may have been causing uterine irritability such as uterine tightenings. He recorded that his plan was to commence antibiotics and to repeat the mid-stream urine in a few days. The first dose of antibiotics was given to Ms Coffey at 2000 hours. She was continued on it, twice daily, through to her discharge on 10 January 2004.

  4. At 2255 hours, the attending midwife noted that Ms Coffey had a low grade temperature of 37.7°C. She also noted that she had experienced an unsettled afternoon and with uterine tightenings 2–8 minutes apart, lasting 20 to 30 seconds and occurring irregularly. The contractions were stated to have been reported to the Obstetric and Gynaecologist team at 1630 hours.

  5. During the morning of 9 January 2004, Dr Follett reviewed Ms Coffey, who reported having experienced one mild contraction that morning, but no PV loss. He noted that a speculum examination and foetal fibronectin test were to be done later that day. At 2150 hours, Ms Coffey reported no uterine tightenings or contractions.

  6. At 0510 hours on 10 January 2004, Ms Coffey reported no uterine tightenings. Later that morning, she was reviewed by Dr Bunting, who noted that there had been no contractions and that she was afebrile. Dr Bunting performed a speculum examination of the cervix, which he recorded as showing that the cervix was multi os/closed, long and very posterior. Dr Bunting further recorded that the foetal fibronectin test result was negative.

  7. Dr Bunting recorded the management plan for Ms Coffey, which included ceasing Labetalol, continuing Aldomet and Adalat, and discharging her that day, but returning her to the antenatal clinic on 14 January 2004, or earlier if she was concerned. She was to continue to rest. Further, Dr Bunting provided Ms Coffey with scripts for Adalat, Amoxycillin and Clavulanic Acid.

  8. Dr Bunting told Ms Coffey that she was okay to be discharged on 10 January 2004, but that she needed to come back to the antenatal clinic on 14 January 2004. He also told her that she should return to the hospital at any time if she was concerned, if she had abdominal pain or what felt like contractions, if she experienced any vaginal loss or bleeding or even if she had more general fever or flu-like symptoms. Dr Bunting told her that she would need to continue taking the Aldomet and Adalat as well as the antibiotics and to complete the course.

  9. Ms Coffey was discharged from the hospital at approximately 1235 hours by Dr Bunting.

  10. As at January 2004, the defendant was required to adhere to the terms of Policy Directives, Circulars and Protocols issued by the Department of Health NSW. In particular, these included Circular 2002/49 dated 23 April 2002 - Protocol for Administration of Tocolytic Agents (Intravenous Salbutamol or Oral Nifedipine) for Treatment of Premature Labour and Circular 99/71 dated 1 September 1999 - Policy for Emergency Obstetric and Neonatal Referrals.

  11. Circular 2002/49 is a protocol providing for the administration of Adalat and Celestone. The purpose for the administration of Adalat in a high risk pregnancy was to supress contractions. The administration of Celestone was to promote lung development in the unborn foetus.

  12. Ms Coffey attended the antenatal clinic at the hospital on 14 January 2004, and was seen by Dr Bunting. A dip stick urine test was done, which indicated no abnormality. Her blood pressure was 125/60 and mild hand oedema was noted. Her gestational age was noted to be 26 weeks and 4 days and her fundal height was recorded at 30cm. There was a cephalic presentation and the foetal heart rate was noted at 140 beats per minute.

  13. Dr Bunting recorded that Ms Coffey was well. On questioning, she described having experienced very occasional tightenings since her discharge. Dr Bunting organised for blood to be taken for a glucose challenge test and full blood count.

  1. Dr Bunting asked Ms Coffey to return to the clinic for further review in two weeks. He also told her that if she had any concerns, she could come into the hospital at any time.

  2. At 0630 hours on 19 January 2004, Ms Coffey presented to the hospital with a history of mild tightenings every ten minutes since 0530 hours, increasing to contractions four minutes apart and increasing in duration and strength. On arrival, the attending midwife had difficulty palpating the contractions, but they were assessed as being 3 to 5 minutes apart and lasting approximately 40 seconds. Ms Coffey had no PV loss, no increase in vaginal mucus and had no urinary frequency or stinging. She stated that she was taking the Adalat, Aldomet and Cartia as usual.

  3. A CTG trace was begun and it was interpreted to demonstrate a satisfactory foetal heart rate, though the tocograph was unable to pick up contractions. Dr Stewart was informed of Ms Coffey’s admission and organised to come in to review her.

  4. Abdominal examination by the midwife demonstrated a longitudinal lie and cephalic presentation, with the presenting part not engaged. Ms Coffey's temperature was 37.4°C, her pulse rate was 140 beats per minute and her blood pressure was 140/80. Urinalysis showed a trace of protein.

  5. On speculum examination, she was found to be fully dilated with the head on view at 0800 hours. Ms Coffey gave birth to James at 0810 hours. The placenta was expelled at 0814 hours. James was delivered by Dr Stewart at 28 weeks and 3 days gestation, assisted by two registered midwives as attendants. His APGAR scores were 5 at 1 minute, 5 at 5 minutes and 7 at 10 minutes. His birth weight was 1110gm, his length was 36.5cm and his head circumference was 24.8cm.

  6. Dr Preddy, a paediatrician, was called. Both the time when this occurred and the time when he arrived are in dispute. Dr Preddy intubated James at 0837 hours, 27 minutes after delivery.

  7. At delivery, James was ventilated via bag and mask and transferred to the special care nursery. He required cardiac massage for one minute (from 0815 hours to 0816 hours) with bag and mask ventilation then continuing with satisfactory respiratory status in terms of his heart rate and oxygen saturation level. The attending midwives recorded the oxygen saturation levels at 0815 hours, 0816 hours, 0817 hours and 0818 hours. At 0825 hours, the oxygen saturation level was noted to be 96%. At 0837 hours, when James was intubated, the oxygen saturation level was noted at 96-97%.

  8. By 0845 hours, James was being mechanically ventilated, with a respiratory rate of 50 breaths per minute, and oxygen requirement (FiO2) of 70% and I:E of 1:1.6, an oxygen saturation level of 98% and a heart rate of 154 beats per minute.

  9. The Newborn and paediatric Emergency Transport Service (NETS) was called to attend at 0922 hours. The precise arrival time is unclear, but the NETS team was on site and administered surfactant at 1140 hours, by which time the oxygen requirement had fallen to 35%. James was sedated with morphine and midazolam for transport and an umbilical arterial line was inserted.

  10. A blood gas taken 30 minutes after ventilation began, showed a pH of 7.43, a pO2 of 63.8, a pCO2 of 34.4 and a BE of -1.2.

  11. James’ chest x-ray showed a ground-glass appearance, consistent with respiratory distress syndrome of prematurity. He was discharged from the hospital at 1610 hours and arrived at the Canberra Hospital at 1625 hours pursuant to a transfer via the NETS team.

  12. On arrival at the Canberra Hospital, at age 8 hours, James was being ventilated with pressures of 23/5 and rate of 50 in 40% oxygen. He was given a second dose of surfactant at 1900 hours. He was also given prophylactic indomethacin to reduce the risk of intraventricular haemorrhage.

  13. James was cared for in the Neonatal Intensive Care Unit. Over the first 48 hours there, James' ventilation was slowly weaned. His maximal peak airway pressure was 28 cm H2O. His arterial blood gases and blood pressures were regarded as acceptable during the period. His maximal inspired oxygen concentration was 70%. James was extubated at 1100 hours on 21 January 2004 and subsequently remained on CPAP.

  14. On 24 January 2004, James developed an increasing oxygen requirement. His chest x-ray showed a collapse of the left lung, with blood tests being suggestive of sepsis. Proteus mirabilis was grown on a nasopharyngeal aspirate. James was treated with gentamicin, vancomycin and cefotaxime.

  15. At 0045 hours on 25 January 2004, James was noted to be having increasing apnoeas and bradycardias. A pCO2 of 120 was noted on a blood gas. He was then re-intubated and again ventilated and underwent insertion of a right radial arterial line. Because of hypotension with mean blood pressures of 22–23 mmHg, he was commenced on dopamine. His hypotension was attributed to poor myocardial function associated with extreme prematurity, hyaline membrane disease and cardiorespiratory depression at birth. James was again extubated on 28 January 2004.

  16. During this admission to the Canberra Hospital, James was diagnosed with patent ductus arteriosus. He was treated with therapeutic Indomethacin via a single course. He also suffered jaundice and was treated with phototherapy. His maximum plasma bilirubin level was 135mmol/L.

  17. James also suffered anaemia of prematurity during the Canberra Hospital admission and was transfused twice.

  18. James underwent a cranial ultrasound on 22 January 2004. Repeat ultrasounds were done on 27 January 2004, 29 January 2004, 5 February 2004, 12 February 2004, 19 February 2004 and 4 March 2004.

  19. During the Canberra Hospital admission, retinal examination revealed that James had incomplete retinal vascularisation in both eyes. He was also diagnosed with a staph aureus MRSA infection of the skin and was treated with gentamicin and vancomycin.

  20. By the time of James’ discharge from the Canberra Hospital on 8 March 2004, his weight was 2,090gm, his length was 42.5cm and his head circumference was 29.5cm. His post-conception age at that point was 34 weeks. He was being treated with theophylline PO 7.2mg 12 hourly, Pentavite 0.45mg PO daily, folic acid PO 50 micrograms daily, phosphorus PO 27mg 6 hourly, Fergon PO 0.5ml daily and 20% NaCl 1 mmol 6 hourly. He was also receiving Karicare with feeds. James' haemoglobin on 6 March 2004 was 93g/L and his haematocrit at the same time was 28%.

  21. James Coffey was transferred back to the Wagga Wagga Base Hospital on 8 March 2004, at 7 weeks of age. He was then on intranasal oxygen (0.09L/min) and was fed with high calorie milk, daily via gavage tube. He was slow to establish suck feeding, but was eventually discharged from the hospital on 4 April 2004, at about 11–12 weeks of age. He was then still on intranasal oxygen therapy due to mild bronchopulmonary dysplasia.

  22. A cranial ultrasound was performed on 26 March 2004.

The pleaded case

  1. It was in these circumstances that Ms Coffey and her son commenced the present proceedings. Although the pleadings have undergone substantial revision over time, the alleged breaches ultimately pleaded against the hospital were as follows.

  2. It is alleged that Ms Coffey should have been transferred to the Canberra Hospital on 5 January 2004 in anticipation of her confinement. Alternatively, it is alleged that this should have occurred by no later than some time during the period between 5 January 2004 and 19 January 2004. In the event that neither of these things occurred, it is alleged that Celestone should have been administered to Ms Coffey at 7 day intervals after its initial administration on 5 January 2004. In the further alternative, in circumstances where no transfer to Canberra Hospital occurred at any time before James’ delivery, it is alleged that steps should have been taken to ensure that a neonatologist or paediatrician was present at the point of delivery.

  3. In a slightly different context it is alleged that someone at the hospital should have discussed the terms of Circulars 2002/49 and 99/71 with Ms Coffey and also discussed with her the comparative services available to her and her then unborn child between Wagga Wagga Base Hospital and the Canberra Hospital. It is also alleged that Ms Coffey should have been given the benefit of a discussion about the reasons for the administration of Celestone on 5 January 2004 and its further administration thereafter. It is alleged that Ms Coffey should have been informed that the hospital could have requested advice concerning her transfer to the Canberra Hospital and should have informed her that if she became a patient at the Canberra Hospital on or about 5 January 2004 then her pregnancy would be managed by that hospital’s “High Risk Pregnancy” team.

  4. It is further alleged that the defendant should not have assessed Ms Coffey’s pregnancy as no longer being a high risk pregnancy upon the basis of a negative foetal fibronectin test carried out on 10 January 2004.

  5. So far as concerns the events that in fact occurred at the delivery, it is alleged that a paediatrician should immediately have been notified of Ms Coffey’s admission to the hospital on the morning of 19 January 2004 and should have been present at the birth. It is also alleged that James Coffey should have been intubated without delay following his birth that day and that the resuscitation process should have begun immediately thereafter. There is a related allegation that the defendant should have ensured that the resuscitation process was adequate immediately following James’ birth and that a resuscitation plan was then in place and that his respiratory distress was properly managed. Finally there is an allegation that immediate action should have been taken to stabilise James’ cardiorespiratory instability as soon as he was delivered and on a continuing basis.

  6. The defendant’s response to these allegations is as follows. The defendant concedes that Ms Coffey’s pregnancy was a high risk pregnancy by reason of her obstetric history. It also admits that if James Coffey were to have been born prematurely, there was a not insignificant risk that he would suffer from hyaline membrane disease and that the defendant was aware of this.

  7. With respect to the circulars, the defendant says that as at January 2004, it was required to adhere to them, subject to the exercise of clinical judgment and consideration of the particular individual circumstances of patients. The defendant admits that Circular 2002/49 applied to it and that it provided for the administration of Nifedipine (that is, Adelat) as a tocolytic agent and that it was customarily used by the defendant to suppress uterine contractions.

  8. The defendant also admitted that the circular provided for the administration of Celestone, a corticosteroid, and that it administered it to Ms Coffey to try to reduce the risk of lung disease in the event that James were born prematurely. The defendant admitted that as at January 2004 it was aware that one of the aims of using tocolysis was to delay preterm delivery in order to allow time for the administration of corticosteroids and the in-utero transfer of the mother to a tertiary perinatal centre with a view to reducing neonatal morbidity and mortality. This was subject to the exercise of clinical judgment and the particular needs of individual patients.

  9. The defendant also admitted that as at January 2004, the Canberra Hospital was one of the perinatal referral centres from which Wagga Wagga Base Hospital staff were able to seek advice and that they did not do so.

  10. The defendant admitted that Adelat was first administered to Ms Coffey at 1940 hours on 4 January 2004 and then at 2010 hours and 2040 hours. It was continued thereafter four times daily until Ms Coffey’s discharge on 10 January 2010. The defendant admitted that Celestone was administered on 4 January 2004 at 1940 hours and on 5 January 2004 at 0840 hours.

Precautions that should have been taken

  1. It is convenient at this point to record the way in which Ms Coffey and her son characterise the precautions that they contend should have been taken by the defendant in the circumstances.

  2. It is contended that Ms Coffey’s pregnancy should have been managed between 5 January 2004 and 19 January 2004 by a specialist obstetrician rather than by a resident medical officer. They submit that a plan of management should have been put in place prior to 26 weeks gestation to arrange for Ms Coffey to reside in Canberra from 26 weeks to 32 weeks into her pregnancy and to attend the Canberra Hospital for the birth. That plan should have included a recommendation for this approach being given to Ms Coffey together with advice about the benefits of delivering James at the Canberra Hospital rather than in Wagga. It is asserted that a discussion ought to have taken place with Ms Coffey shortly after her admission on 4 January 2004 in relation to these matters and the implications of Circular 2002/49, the use of tocolytic agents and corticosteroids and the need to be transferred to Canberra when not in preterm labour. It is contended that the Obstetric Team at Wagga Wagga Base Hospital should have contacted the High Risk Team at Canberra Hospital and discussed Ms Coffey’s presentation with them. Ms Coffey should have been transferred to Canberra Hospital. Circular 2002/49 “ought to have been adhered to”.

  3. In a similar vein, it is alleged that Ms Coffey ought not to have been discharged from Wagga Wagga Base Hospital on 10 January 2004 but that instead the prospect of transfer to Canberra Hospital should then have been discussed with her and she should in fact have been transferred. Alternatively, these things should have all occurred by 14 January 2004.

  4. It is submitted that a second course of corticosteroids should have been administered on 14 January 2004. The defendant should have realised that Ms Coffey was in labour on 19 January 2004 when she was admitted. She should have been transferred immediately to the labour ward and a resuscitation trolley should have been present at the birth. It is contended that a paediatrician skilled in the resuscitation and intubation of babies of less than 34 weeks gestation ought to have been notified when Ms Coffey arrived at the hospital and ought to have been present at the birth.

  5. James Coffey’s case is therefore that the harm from which he suffered substantially arose from the fact that he was born in a clinical setting where the standard of his immediate and subsequent post-natal care was inadequate to manage his gestational age. The risk was that he would be born prematurely. The defendant knew of that risk and it was not insignificant.

  6. It should be observed that, framed in this way, the case against the defendant does not include a pleaded allegation that some precaution or combination of precautions was available to it that could or should have been taken to avoid or reduce the risk that James might be born prematurely, whether at 27 weeks and 2 days gestation as occurred or at some other time. In other words, even though the defendant had the means, through the administration of appropriate drugs, possibly to forestall the onset of labour for as much as 48 hours, the apparent high likelihood of James’ premature birth is not in issue, once Ms Coffey’s presentation at the hospital on 4 January 2004 is accepted on both sides. There is correspondingly no suggestion of any want of care on the defendant’s part before that date. Indeed, the high likelihood of a premature delivery is central to the way in which the plaintiffs propound their case. It was the spectre under the shadow of which the plaintiffs contend the defendant should have acted differently.

Summary of the plaintiffs’ case

  1. James Coffey was at risk of premature birth. Prior to 4 January 2004, his mother should have been advised to reside in Canberra for the period of 24 to 32 weeks gestation because it was clinically appropriate to do so. Ms Coffey would have acted upon such advice and gone to Canberra for care at Canberra Hospital.

  2. When Ms Coffey was admitted to Wagga Wagga Base Hospital on 4 January 2004, she was in threatened premature labour. She ought to have been given advice then or on the following day about the transfer of her care and the care of the baby, should he be born prematurely, to Canberra Hospital. This was also clinically appropriate.

  3. Moreover, Circular 2002/49 warranted the transfer of Ms Coffey once she had been placed on Nifedipine, a tocolytic agent, and once cover with corticosteroids had commenced. James Coffey should have been transferred to Canberra Hospital in utero.

  4. Dr Currie was of the view that it would be unlikely that she would reach 30 weeks gestation before delivery. Dr Stewart was of the view that once she went into labour she would deliver quickly. In those circumstances, transfer ought to have taken place because Wagga Wagga Base Hospital was not accredited either to deliver babies of less than 32 weeks gestation or to look after them.

  5. It was too late to transfer once labour had commenced.

  6. Dr Bunting’s plan was to deliver James in Wagga Wagga. This was inappropriate because the hospital was not accredited to do so and there were well-established benefits to being born in a tertiary care centre.

  7. As at both 10 January 2004 and 14 January 2004, despite the foetal fibronectin test being negative, advice about transfer should have been given and the transfer arranged. This is because on both dates there was still a significant risk of preterm birth. The negative foetal fibronectin test did not negate that risk. It pointed to a safe time to transfer in-utero.

  8. A second course of corticosteroids ought to have been commenced on 14 January 2004, which was when Ms Coffey next returned to the antenatal clinic after her discharge from hospital on 10 January 2004.

  9. Transfer to Canberra Hospital was a precaution against the risks of harm to James that should have been taken. Corticosteroids were an additional precaution against the risks of harm to him.

  10. When Ms Coffey came into hospital on 19 January 2004, she was in labour. Her symptoms were consistent with labour and an earlier vaginal examination would have confirmed this. That is what would have happened at Canberra Hospital. The Court should assume that Canberra Hospital would have acted competently.

  11. At Wagga Wagga Base Hospital Ms Coffey ought then have been transferred to the delivery suite, a partogram should have been commenced, a resuscitation trolley should have been made available for the delivery and a paediatrician experienced in preterm delivery, resuscitation and intubation ought to have been present when that occurred. The Wagga Wagga Base Hospital’s own guidelines mandated the presence of a paediatrician with appropriate experience as well as a resuscitation trolley.

  12. The events that occurred in James Coffey’s resuscitation at Wagga Wagga Base Hospital would not have occurred and the factors identified as contributing to an intraventricular haemorrhage would not have happened.

  13. Resuscitation included a period of six minutes of cardiac massage. This was inappropriate. There was also cardiorespiratory instability and James was fighting against the ventilator. These things each caused or were material contributing factors to his intraventricular haemorrhage.

  14. Had Ms Coffey given birth at the Canberra Hospital, it would have been in the delivery suite with a resuscitation trolley available and a neonatologist or neonatal registrar in attendance. Those doctors would have had experience in resuscitating babies of 27 weeks gestation. Neonatal intensive care nurses would have been present to assist in that resuscitation.

  15. James Coffey would have been resuscitated properly. The cardiorespiratory instability would not have occurred. The cardiac massage would not have occurred. Fighting against the ventilator would not have occurred because James would probably not have needed intubation.

  1. Following immediate resuscitation, James would have been moved to the Neonatal Intensive Care Unit where there were greater skills and facilities for the continuation of resuscitation and proper care immediately thereafter. This would have prevented cardiorespiratory instability. Surfactant would have been given earlier.

  2. The failure to take precautions against the identified risks of harm was a material contributing factor to the causation of the intraventricular haemorrhage.

  3. James Coffey sustained either a grade 3 or a grade 2 intraventricular haemorrhage which in either case contributed to or caused his neuro-developmental impairment. It is unlikely that the intraventricular haemorrhage was due to prematurity per se. It is also unlikely that the 17q12 micro duplication caused all of James Coffey’s neuro-developmental impairment, if any.

  4. James Coffey alleges a contract between his mother and the Wagga Wagga Base Hospital for the provision of medical advice and services in accordance with a standard of care reasonably to be expected of a person in the position of the hospital. He alleges that it was a condition of that contract that the hospital would comply with policy directives and circulars issued to it by the NSW Department of Health, in particular Circular 2009/49 and Circular 99/71, and to provide medical advice and services in accordance with a standard of care reasonably to be expected of a person in the position of the hospital.

  5. Further, James Coffey pleads exceptional circumstances in relation to the failure to transfer his mother to Canberra Hospital prior to his delivery and repeat the administration of Celestone.

Section 5O

  1. Section 5O of the Civil Liability Act 2005 provides as follows:

“5O Standard of care for professionals

(1) A person practising a profession (‘a professional’) does not incur a liability in negligence arising from the provision of a professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice.

(2) However, peer professional opinion cannot be relied on for the purposes of this section if the court considers that the opinion is irrational.

(3) The fact that there are differing peer professional opinions widely accepted in Australia concerning a matter does not prevent any one or more (or all) of those opinions being relied on for the purposes of this section.

(4) Peer professional opinion does not have to be universally accepted to be considered widely accepted.”

  1. It is now established that in cases in which a defendant raises this provision in response to a plaintiff’s claim, evidence of peer professional opinion as to competent professional practice, if accepted, establishes the standard of care to be applied in the instant case. That is to be distinguished from cases in which, where negligence is alleged, the standard of care is established by application of the elements set forth in s 5B of the Act.

  2. In Dobler v Halverson (2007) 70 NSWLR 151; [2007] NSWCA 335, Giles JA pointed out the manner in which s 5O works an important change to the situation under the common law as it was pronounced in Rogers v Whitaker:

“[59] … Section 5O … was intended to introduce a modified Bolam principle. Its importance does not lie so much in questions of onus of proof as in who determines the standard of care. …Section 5O has the effect that, if the defendant’s conduct accorded with professional practice regarded as acceptable by some (more fully, if he ‘acted in a manner that…was widely accepted…by peer professional opinion as competent professional practice’), then subject to rationality that professional practice sets the standard of care.”

  1. The proposition that s 5O dictates a departure from the common law principle that judges determine the standard of care was later re-emphasised in Dobler as follows:

“[61]…the standard of care will be that determined by the Court with guidance from evidence of acceptable professional practice unless it is established (in practice, by the defendant) that the defendant acted according to professional practice widely accepted by (rational) peer professional opinion…”.

  1. Allsop P, in Sydney South West Area Health Service v MD (2009) 260 ALR 702; [2009] NSWCA 343 at [51], cited Dobler with approval saying:

“It [s 5O] transforms what would otherwise be relevant evidence as to negligence to be weighed by a judge in the familiar calculus into evidence that may be determinative of the appeal.”

  1. The defendant contended that this “must be correct”. That is because the assessment of the conduct of a defendant professional cannot occur in the context of s 5B of the Act without reference to s 5O. Section 5B, subject to causation, determines liability in negligence. Section 5O qualifies the operation of s 5B, in cases to which s 5O applies, by determining the standard of care.

  2. Some provisions in the Civil Liability Act operate as a defence to “civil liability” and are thus invoked after a finding of negligence. Section 43A is said to be an example. The application of that section involves a “two-stepped approach”, requiring a plaintiff to make out negligence and then satisfy a further, not inconsistent, statutory test. However, that construction cannot be accommodated where s 5O applies because that would require separate, but potentially inconsistent, findings of negligence: first, an assessment under s 5B (applying Rogers v Whitaker) and secondly, an assessment under s 5O (applying its terms).

  3. It follows that, where a professional adduces evidence that establishes that he or she acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice, then, subject to the court not finding that the opinion is irrational, that practice establishes the standard of care, conformity with which by the defendant will mean he or she “does not incur a liability in negligence”. That should be so even in cases where the judge is of the opinion that a different or higher standard, of which the defendant fell short, should obtain.

  4. This approach was recently endorsed in Sparks v Hobson (2018) 361 ALR 115; [2018] NSWCA 29 and South West Sydney Local Health District vGould (2018) 97 NSWLR 513; [2018] NSWCA 69. In Sparks, Basten JA said this:

“[16] The section envisages a conflict in the evidence as to whether the defendant’s conduct was accepted by his or her peers as ‘competent professional practice.’ In order to establish negligence, there will usually need to be expert evidence called by the plaintiff to the effect that the defendant failed to exercise reasonable care and skill in providing a relevant service. Under the general law, the defendant would seek to challenge that evidence by calling expert opinion to a contrary effect. For the plaintiff to succeed, the court would need to be satisfied on the probabilities that the appropriate standard was that for which the plaintiff’s experts contended. That position has been varied by s 5O(1); although expressed in the passive voice (‘if it is established that …’), it has been broadly accepted that the section provides a defence.

[17] Despite the common acceptance of the provision as a ‘defence’, that characterisation gives rise to difficulty. To be a defence carries the implication that the plaintiff must establish breach according to the general requirements of s 5B of the Civil Liability Act, following which the practitioner bears the burden of establishing that his or her conduct amounted to ‘competent professional practice’ in the terms of s 5O(1). The heading of the section (‘Standard of care for professionals’) indicates its purpose. Although the heading is not part of the Act, it may be taken into account as extrinsic material in construing the provision, in accordance with s 34(1) of the Interpretation Act. In any event, it is tolerably clear that the provision sets a standard. However, if the standard is met, it follows that the conduct was not negligent.

[18] Accordingly, once s 5O is invoked, arguably the general exercise required by s 5B becomes otiose. There can only be one standard against which to judge the conduct of a professional defendant, although that standard may depend upon the resolution of conflicting evidence called by the plaintiff and the defendant. It is only if one takes the plaintiff’s evidence in isolation that a two-stage process, involving the assessment of the plaintiff’s claim followed by assessment of an affirmative defence, will arise. However, in a practical sense, that is not how the dispute should be determined. Rather, a judgment will be given based on all of the evidence. Nor is the exercise helpfully clarified by speaking of shifting burdens of proof. The question for the trial judge is ultimately whether the plaintiff has established that the conduct of the defendant failed to comply with the relevant standard of care. This approach is consistent with Dobler and is not to say that a plaintiff must seek out and negative opinions inconsistent with those of the experts on whom he or she relies. Beyond that proposition, Dobler did not turn upon the onus of proof…

…

[24] In Dobler, Giles JA stated:

‘Section 5O may end up operating so as to determine the defendant’s standard of care, but the standard of care will be that determined by the court with guidance from evidence of acceptable professional practice unless it is established (in practice, by the defendant) that the defendant acted according to professional practice widely accepted by (rational) peer professional opinion.’

Ipp JA and I agreed. On reflection, this passage may be open to misunderstanding. It is true that s 5O will not be engaged unless there is evidence of a widely accepted professional practice supporting the defendant’s conduct, but where there is such evidence, unless it can be rejected by the trial judge, it will fix the relevant standard; there cannot be two legally supportable standards operating in the one case.”

  1. His Honour then concluded:

“[69] For reasons set out above, the proper course in a case where s 5O has been pleaded and has been the subject of evidence is to determine first the standard of care to be applied, before assessing the alleged negligence against that standard…”

  1. Wagga Wagga Base Hospital submitted that this clarification supports its reasoning to the effect that s 5O evidence, if accepted, establishes the standard of care, and leaves no room for the different test, under s 5B, applying Rogers v Whitaker.

  2. The approach was reiterated and endorsed in Gould, where Leeming JA, cited Giles JA’s decision in Dobler:

“[121]    Giles JA, with whom Ipp and Basten JJA agreed, rejected the bald submission that the plaintiff bore the onus of proof. His Honour traced the history of the ‘Bolam principle’, its rejection by the High Court in Rogers v Whitaker (1992) 175 CLR 479; [1992] HCA 58 and its partial reinstatement in s 5O. His Honour said that apart from s 5O, the Court would have regard to evidence as to acceptable professional practice, but would not be obliged to accept that evidence. In particular, his Honour said that a court ‘would not be obliged to hold against the plaintiff if the defendant’s conduct accorded with professional practice regarded as acceptable by some although not by others’: at [59]. Giles JA then stated that, in contrast:

‘Section 5O has the effect that, if the defendant’s conduct accorded with professional practice regarded as acceptable by some (more fully, if he “acted in a manner that … was widely accepted … by peer professional opinion as competent professional practice”), then subject to rationality that professional practice sets the standard of care.’

[122] Returning to the imprecise way in which the issue of whether s 5O ‘operated as a defence’ had been framed, Giles JA said at [60]-[61]:

‘In this sense, s 5O provides a defence. The plaintiff will usually call his expert evidence to the effect that the defendant’s conduct fell short of acceptable professional practice, and will invite the court to determine the standard of care in accordance with that evidence. He will not be concerned to identify and negate a different professional practice favourable to the defendant, and s 5O does not require that he do so. The defendant has the interest in calling expert evidence to establish that he acted according to professional practice widely accepted by peer professional opinion, which if accepted will (subject to rationality) mean that he escapes liability.’

It follows that I do not accept the appellant’s submission that s 5O did not provide a defence but defined the content of the duty of care owed by the appellant to Kurt, with the onus on the respondents to prove that the manner in which he acted was not widely accepted by peer professional opinion as competent professional practice. Section 5O may end up operating so as to determine the defendant’s standard of care, but the standard of care will be that determined by the court with guidance from evidence of acceptable professional practice unless it is established (in practice, by the defendant) that the defendant acted according to professional practice widely accepted by (rational) peer professional opinion.’ [Emphasis added.]

[123] Read in proper context, it may be seen that Dobler was a very precise statement of the operation of s 5O. Only if the preconditions of the section – namely, that the defendant was ‘practising a profession’ and was doing so ‘in a manner that ... was widely accepted in Australia by peer professional opinion as competent professional practice’ – are established does the section apply. The defendant bears the onus of establishing those preconditions, and if they are not established, then ss 5B and 5C are to be applied. However, if the preconditions are established, then the standard of care against which the defendant’s conduct is assessed is that which was widely accepted by peer professional opinion as competent professional practice, unless the court considers that opinion is irrational.

[124] In a case (such as the present) where the defendant establishes the preconditions to s 5O, then there is a single standard against which the defendant is assessed, namely, s 5O, subject always to s 5O(2). That is what Giles JA said at [59]: ‘then subject to rationality that professional practice sets the standard of care’. That is also what his Honour said at [61]: ‘Section 5O may end up operating so as to determine the defendant’s standard of care’.

[125] That is what Basten JA and Simpson JA separately suggested in Sparks v Hobson; Gray v Hobson [2018] NSWCA 29…”.

  1. Paragraphs 85 and 85A of the defence to the second further amended statement of claim plead a reliance on s 5O of the Act. It is instructive to note these paragraphs here:

“85. Further, in answer to the whole of the second further amended statement of claim, the defendant states that it, by its servants or agents, acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice in all material aspects of its management and care of the plaintiff, including in:

(i) admitting Kathleen Coffey to Wagga Wagga Base Hospital between 4 and 10 January 2004 and managing her there, rather than transferring her to Canberra Hospital for antenatal care;

(ii) treating her during the 4-10 January 2004 admission with tocolytics, corticosteroids and antibiotics;

(iii) monitoring her uterine contractions and recording them during the 4-10 January 2004 admission;

(iv) performing vaginal examinations on 4 and 10 January 2004;

(v) performing a foetal fibronectin test on 10 January 2004;

(vi) discharging her on 10 January 2004 (while continuing Aldomet and Adalat and antibiotics) with advice to return to the antenatal clinic on 14 January 2004; and

(vii) reviewing her in the antenatal clinic on 14 January 2004, at which time standard observations were done and urinalysis was performed and she was advised to return to the antenatal clinic for follow up in two weeks’ time or earlier if she was concerned,

and, pursuant to section 5O of the Act, it does not incur a liability in negligence to the plaintiff.

85A. Further, if, which is denied, section 5O of the Act requires that the defendant establish that it acted pursuant to a practice that was in existence at the relevant time, then the defendant says that the manner in which it acted, including in doing the things referred to in paragraph 85 above, accorded with, or was pursuant to, a practice in existence at that time.”

  1. The significant and over-arching allegation pleaded against the defendant is the failure to transfer Ms Coffey to the Canberra Hospital prior to James’ delivery. The defendant maintains that in the circumstances of this case, the decision not to transfer, as well as the treatment provided while still at Wagga Wagga Base Hospital and following delivery, conformed to competent professional practice. Several opinions were expressed by experts in different fields of specialty concerning the question of whether or not the treatment provided to Ms Coffey and her foetus and later to her newborn son was in accordance with competent professional practice at the relevant time. These opinions were expressed both with respect to the overriding decision concerning the transfer of Ms Coffey to a tertiary hospital such as Canberra Hospital as well as with respect to the discrete individual questions such as the administration of steroids or the quality of neonatal intubation and resuscitation. Plainly the views expressed on the general issue of transfer will not necessarily accommodate the views expressed about the particular issue of care or treatment. To the extent, therefore, that the defendant has raised the existence of an accepted professional practice in existence at the time with which the Wagga Wagga Base Hospital complied, attention always needs to be given to the precise practice that is being considered.

  2. That somewhat uncontroversial proposition was given recognition in Sparks, as the following paragraphs from the judgment of Basten JA make clear:

“[26] More importantly, the provision raises the possibility of a negative inference, namely that the court may not reject an opinion even though satisfied that it is unreasonable (though not irrational), or otherwise not one the court would itself adopt. Such a general negative inference should not be inferred; there will be other questions which will arise.

[27] First, there will be a question as to whether the evidence of one or two experts can satisfactorily establish opinions which are ‘widely accepted’ in circumstances where such a view is contradicted by other evidence. No doubt evidence of ‘general professional opinion’, in addition to the personal opinion of the expert, is admissible in such circumstances.

[28] Secondly, it will be a matter for the court to assess the significance of particular evidence. Evidence may be at a greater or lesser level of generality. At a high level of generality it may readily be accepted that an opinion is widely held amongst peers of the practitioner. However, the standard so identified may not assist greatly in resolving the particular case. On the other hand, the more particular the opinion, based on the specific circumstances of the case, the more difficult it may be to establish an opinion which can be described as ‘widely accepted’ among fellow practitioners. Accordingly, whether or not evidence of medical opinion is properly described as conclusive in a particular case will depend upon a range of factors and not merely the fact that it can properly be described as not irrational.”

  1. As indicated earlier, the predominant setting or context for all of the allegations raised against the Wagga Wagga Base Hospital is the decision not to transfer Ms Coffey to a tertiary facility. As will shortly be explained, the other alleged deficiencies appear in my opinion ultimately to assume only subsidiary significance or merge in the wisdom or otherwise of the decision to continue to treat Ms Coffey in Wagga Wagga.

  1. Ms Coffey was primarily responsible for managing the domestic affairs of not only her own life, but that of her four children and household. As Campbell JA noted at [178] in Guthrie v Spence, if a person is able to manage his or her affairs in relation to numerous and diverse areas of their life, a good explanation would be called for before one accepted that that person was not able to manage their affairs in relation to some different area of their life. No such explanation has been provided by Ms Coffey in this case.

  2. Further, the evidence also appears to indicate that Ms Coffey was under no substantial impairment in managing the prosecution of the cause of action itself. For example, Mr Potter refers in his affidavit to her several attendances upon him and with counsel.

  3. Additionally, Ms Coffey was sufficiently in control of her affairs to be able, according to Mr Potter, to instruct him to close the file on 18 May 2010, after they discussed the merits of the case that month.

  4. Nor do Dr Gertler's reports of 22 November 2011, 18 March 2014 and 21 July 2017 provide a basis for a finding that Ms Coffey was substantially impeded in managing any of her affairs in relation to the cause of action. Dr Gertler noted that Ms Coffey has been taking antidepressants since her third child (Caitlyn) was born in 2001. That history is consistent with her oral evidence, although Mr Coffey recalled that his wife had been taking antidepressants since August 1998, following the birth of Brianna. Ms Coffey gave evidence that the antidepressants alleviated the symptoms of her depression.

  5. Despite Ms Coffey giving oral evidence that her mental state "now" is an "eight to a nine", Dr Gertler determined that there was no evidence that she suffered from significant depression or anxiety, and that her capacity for "insight" and "judgment" was appropriate. Overall, Dr Gertler concluded in his report that Ms Coffey was "mildly depressed" and suffering from an adjustment disorder that was chronic in duration. Dr Gertler noted in his report that this had had an impact on her "capacity to tolerate her day to day responsibilities, particularly as they relate to the care of her children and husband" but he did not provide any further details. The use of the word “tolerate”, appears to indicate that Dr Gertler was of the view that Ms Coffey was unhappy with her day-to-day responsibilities, as opposed to being unable to manage or carry them out.

  6. In Dr Gertler's 18 March 2014 report, he expressed the opinion that Ms Coffey was "mildly irritable but not significantly depressed". He concluded that she continued to suffer from an "adjustment disorder with mixed emotional features". In his 21 July 2017 report, Dr Gertler indicated that Ms Coffey described "normal concentration and memory" and "a fluctuating level of depression". He concluded that "there was no evidence of significant depression at the time of assessment".

  7. In their joint report of 27 October 2017, Drs Gertler and Wilcox reached broad agreement about the nature and severity of Ms Coffey's mental illness. Dr Gertler stated that she suffered from an adjustment disorder with anxious and depressed mood which fluctuated in intensity but was generally mild. He found (and Dr Wilcox agreed) that it had never been severe enough to warrant domestic assistance, nor had it affected her capacity for work at any time after 19 January 2004.

  8. No evidence has been adduced to indicate that Ms Coffey suffered from any disease or impairment so as substantially to impede or make her incapable of managing her affairs in relation to the cause of action. The evidence does not support a finding that Ms Coffey has been under a disability at any time since 19 January 2004 for the purposes of s 50F of the Act.

Ms Coffey’s submissions

  1. Ms Coffey drew attention to the same provisions of the Limitation Act to which the hospital referred.

  2. The definition of “under a disability” is also found in s 11(3)(b). The definition was definitively discussed in State of New South Wales v Harlum. The headnote in relation to this issue contains the following:

“(iv) The enquiry under s 11(3)(b) is directed to determining whether the person claiming to be under the relevant disability is able to reason normally about the matters relevant to a potential cause of action, to understand and consider advice, and to give instructions about any action: [92]

Kotulski v Attard [1981] 1 NSWLR 115 (applied)

(v) A fundamental aspect of bringing a claim is that it requires the exercise of willpower to initiate the claim. However, having the willpower is not the only question, in making a decision to commence an action, the person is also making a decision to continue with the claim: [94]

Kotulski v Attard [1981] 1 NSWLR 115 (applied)”

  1. The facts in Kotulski were similar to those in the present case. The uncontested evidence given by Mr Coffey as to his wife’s ability to cope with James’ substantial disabilities was uncontested and comfortably forms the foundation for a finding that Ms Coffey was “under a disability” at least up to the time when she gave instructions to commence the proceedings.

  2. Further, s 50D provides strong support for the cause of action not being “discoverable” at any time up to when the action was commenced.

  3. The decision of the Court of Appeal in Baker-Morrison v State of New South Wales is definitive in relation to the issue of discoverability and in particular, “the meaning of caused by default of the defendant”.

  4. To the extent that Mr Potter was cross-examined in relation to the steps he took to pursue the question of liability, this is irrelevant. The “reasonable steps” relate not to the solicitor but to Ms Coffey. It could not be said that she failed to take reasonable steps. The headnote to that report confirms that:

“The ‘fact’ contemplated by s 50D(1)(b) is a relationship between the injury or death and the fault of the defendant. The relevant connection is one of causation. Since the primary particular of negligence on the statement of claim was a failure to provide ‘a protective guard or covering along the area of operation of the … sliding glass doors’, until the plaintiff’s mother was aware or ought to have been aware of the availability and reasonable practicability of installation of a device to make the sliding door safer, she could not be said to be aware that her daughter’s injury was caused by a failure on the part of the State to take reasonable care for her safety.”

  1. Not only had Ms Coffey taken “reasonable steps”, she had received advice to the effect that as at the date of the expiration of the limitation period there was insufficient expert evidence available to support the commencement of proceedings. This advice was based upon the report of Professor Colditz dated 10 October 2005 and the report of Dr Barraclough dated 4 July 2006.

  2. It is clear that no further steps were taken in relation to obtaining an expert liability report until following the conference between Mr Potter and Ms Coffey on 15 February 2011: see paragraph 13 of Mr Potter’s affidavit. It is also clear that Ms Coffey was unaware of the relationship between the injury and the fault of the hospital until she was informed of the views expressed by Professor Fliegner in the conference with Mr Potter on 21 March 2011 at which time instructions were provided to file a statement of claim: see paragraph 20 of Mr Potter’s affidavit.

  3. The statement of claim which was dated 29 March 2011 was filed on 31 March 2011. Thus, the Limitation Act has no application to the present case both because of discoverability and the fact that Ms Coffey was under a relevant disability.

Reply submissions

  1. Kotulski directs attention to the ability to reason normally about the matters relevant to a potential cause of action. The hospital emphasised that that is very different to Ms Coffey's ability to cope with the day to day manifestations of her son’s disabilities. Brian Coffey's evidence is of little or no relevance to the enquiry whether his wife was under a disability.

Limitation Act defence - consideration

  1. Mr Potter told Ms Coffey on 3 March 2004 that it would be necessary to get expert opinion on whether the hospital was at fault and whether that fault caused James to be injured. A report from Professor Colditz was obtained and Mr Potter discussed it with Ms Coffey in conference on 15 November 2005. The report did not assist Ms Coffey’s case and Mr Potter told her so.

  2. Similarly, Dr Barraclough provided a report to Mr Potter in July 2006. Mr Potter formed the view that it was not sufficient to recommend the commencement of proceedings. I infer that Mr Potter shared his view to that effect with Ms Coffey: Mr Potter said in cross-examination that he had no record of telling Ms Coffey about that report when he conferred with her in July 2006 but said that he believed that he would have.

  3. The suggestion that Ms Coffey was unaware of the relationship between the injury sustained by her son and the fault of the hospital until she was informed of the views expressed by Professor Fliegner in the conference with Mr Potter on 21 March 2011 in my view either misunderstands the applicable test or is not supported by the evidence. The issue is one of discoverability, not discovery in fact. The terms of s 50D of the Act make this clear. The fact that Ms Coffey did not “discover” Professor Fliegner’s opinion until within a three year period before she commenced these proceedings ignores the significance of what she should have discovered and when she should have discovered it. All the steps that were taken and everything that occurred that led to the provision of Professor Fliegner’s opinion could correspondingly have been taken or could have occurred well before the period of three years prior to the commencement of the proceedings. It is not open to Ms Coffey in this context to argue that the fact that a supportive opinion was only provided when it was, means that the same or an equivalent opinion was not always relevantly discoverable. It would be different, for example, if some novel medical test or diagnostic process had only been developed or come to her attention within three years of the date of commencement of the proceedings. The circumstances in which Professor Fliegner’s opinion was obtained are not analogous to that example.

  4. It is plain and I am satisfied that Ms Coffey sought Mr Potter’s advice, opinion and assistance because she was aware of the possible connection between what afflicted her son and some act or neglect on the part of the hospital. In the events that occurred, Ms Coffey could in one sense never have discovered a connection between the injuries sustained by James and the fault of the hospital, having regard to my finding that the hospital was not ever at fault. The fault of the hospital must therefore be relevantly understood to be the existence and availability of an opinion that the relevant connection existed and that the hospital was at fault. There was nothing to prevent Ms Coffey having earlier discovered what she did discover in 2011. It is clear that she retained Mr Potter for precisely that purpose and that he undertook to search for the connection in accordance with his instructions. In the terms of the section, Ms Coffey ought to have discovered before 31 March 2008 what she did discover when Professor Fliegner’s report arrived. Having regard to the fact that Ms Coffey consulted Mr Potter almost immediately after James’ birth, and in the events that occurred, it is my opinion that she should have discovered all of the matters to which s 50D(1) refers by no later than three years thereafter. The fact that Ms Coffey discovered the connection when she did, in circumstances that were in all relevant respects identical to those existing long before that date, indicates that she ought to have discovered the relevant facts more than three years before the filing of her statement of claim and probably in fact no later than three years after the events that gave rise to these proceedings.

  5. Nor am I satisfied that the limitation period was suspended for the reason that James Coffey was under a disability in the sense that Ms Coffey was an incapable parent for the purposes of s 50F(2)(a) of the Act. Ms Coffey was undoubtedly confronted with the awful difficulties associated with James’ disabilities. Those difficulties were no doubt made even worse to deal with by reason of her family situation as it existed at the time of his birth. However, despite these things, Ms Coffey was commendably able to see Mr Potter with her story, to instruct him about what had happened and to arm him with the material information that he needed to make the necessary inquiries on her behalf. That is what occurred. Ms Coffey demonstrably was able to reason normally about the matters relevant to a potential cause of action, to understand Mr Potter’s advice and to give appropriate instructions. In this respect I am also satisfied that Ms Coffey specifically instructed Mr Potter to close her file and that he did so in accordance with those instructions. I accept that dealing with the fact that her son had possibly been injured by the hospital would have been a terrible and frightening thing with which to come to terms. I am not satisfied that the effect of that realisation or appreciation substantially impeded Ms Coffey’s management of the relevant affairs.

Conclusions and orders

  1. It follows that there should in each case be judgment for the defendant. I will hear the parties if so required with respect to the question of costs.

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Decision last updated: 27 September 2019

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Cases Cited

13

Statutory Material Cited

2

Dobler v Halverson [2007] NSWCA 335
Dobler v Halverson [2007] NSWCA 335
Dobler v Halverson [2007] NSWCA 335