Do (an infant) by his next best friend Lan Thi Hoang v King Edward Memorial & Princess Margaret HOSPITALS' BOARD - [2008] WADC 118

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: DO (an infant) by his next best friend LAN THI HOANG & ANOR -v- KING EDWARD MEMORIAL & PRINCESS MARGARET HOSPITALS' BOARD [2008] WADC 118

CORAM: SLEIGHT DCJ

HEARD: 14-18, 21, 22, 28-30 APRIL 2008

DELIVERED : 28 AUGUST 2008

FILE NO/S: CIV 67 of 1997

BETWEEN: MICHAEL LONG DO (an infant) by his next best friend LAN THI HOANG
First Plaintiff
By his next best friend LAN THI HOANG
Second Plaintiff
AND
KING EDWARD MEMORIAL & PRINCESS MARGARET HOSPITALS' BOARD
Defendant

Catchwords:

Medical negligence claim - Breeched foetus experienced intrapartum hypoxic insult - Issue whether foetus adequately monitored and whether intrauterine resuscitation and/or delivery ought to have occurred earlier - Issue whether negligence of defendant lead to prolongation of hypoxic event and caused or contributed injury in the form of cerebral palsy to infant plaintiff

Legislation:

Nil

Result:

Claim dismissed

Representation:

Counsel:

First Plaintiff                :     Mr T H Offer
Second Plaintiff            :     Mr T H Offer
Defendant:     Mr G R Hancy

Solicitors:

First Plaintiff                :     Vertannes Georgiou
Second Plaintiff            :     Vertannes Georgiou
Defendant:     Minter Ellison

Case(s) referred to in judgment(s):

Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542
Amaca Pty Ltd v Hannell (2007) 34 WAR 109
Bennett v Minister for Community Welfare (1992) 176 CLR 408
Ellis v Wallsend District Hospital (1989) 17 NSWLR 553
Kondis v State Transport Authority (1984) 154 CLR 672
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Purkess v Crittenden (1965) 114 CLR 164
Roads & Traffic Authority (NSW) v Dederer [2007] HCA 42
Rogers v Whitaker (1992) 175 CLR 479
Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262
Strempel v Wood & Anor [2005] WASCA 163
Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720
Wyong Shire Council v Shirt (1980) 146 CLR 40

SLEIGHT DCJ:

Introduction

At 12.47 am on 17 January 1991, the second plaintiff ("Ms Hoang") gave birth to the infant plaintiff ("Michael") at the King Edward Memorial Hospital for Women in Perth ("KEMH"). Prior to his birth Michael suffered a severe intrapartum hypoxic insult (a loss or reduction in oxygen supply) which resulted in severe brain damage ("the disability").
The plaintiffs allege that the disability suffered by Michael was caused or contributed to by the negligence of the defendant. In broad terms the plaintiffs complain that the defendant through its staff was negligent in that it did not adequately monitor the heartbeat of the foetus. It is claimed this failure meant that the staff did not detect earlier enough irregularities in the heartbeat and this lead to a prolongation of the hypoxic insult. The defendant denies that it was negligent or that if it was negligent, such negligence caused or contributed to the disability.
The trial before me was with respect to the issue of the defendant's liability only. The issue of the quantum of damages is to be tried separately in the event that I find that the defendant is liable.
Because the birth of Michael occurred so long ago most of the defendant's staff that were on duty on the night of Michael's birth cannot recall any details about what occurred and accordingly most of the evidence of what occurred arises from hospital records.

Facts which are not in dispute

Ms Hoang is married to John Tran Do. They are both from Vietnam. They have four sons, aged 37, 36 and 33 and Michael aged 17. The three older sons were born in Vietnam. Ms Hoang was aged 41 years of age at the time of the birth of Michael.
On 5 September 1990 Ms Hoang, who was then about three months pregnant with Michael, was referred by her general practitioner to KEMH for the management and care of her pregnancy, labour and expectant birth of Michael. Ms Hoang attended the defendant's antenatal clinic on 6 November 1990 (at 27 weeks of her pregnancy), 4 December 1990 (30 weeks of her pregnancy) and 15 January 1991 (37 weeks of her pregnancy). At the review on 15 January 1991 Ms Hoang was examined by the defendant's attending obstetrician who diagnosed persistent breech presentation. An ultrasound was performed which showed the amniotic fluid volume was at the lower limit of normal. The attending obstetrician performed an External Cephalic Version ("ECV"), which is an external manipulation procedure, in an effort to turn the breeched foetus. This procedure failed, leaving the foetus in a breeched position. Ms Hoang was requested to attend the antenatal clinic again on 22 January 1991.
Late on the evening of 16 January 1991 Ms Hoang attended the KEMH with abdominal pain (the time of her arrival at the hospital and the period she waited before she was formally admitted and examined is a point of contention). An admission registration form prepared by a receptionist, Ms Dorothy Maude Sackville, recorded the time of admission as 22.56 hours on 16 January 1991.
After her initial admission Ms Hoang was taken to an examination room where she was examined by a midwife, Ms Frencham. The hospital records include an "Obstetric History and First Examination" form which contains on page 2 an entry completed by Ms Frencham. The entry records the date and time as 23.10 hours on 16 January 1991. It also records Ms Hoang's weight, her blood pressure, the presentation of the baby (which is recorded as LSL – which is an acronym for "Left Sacral Lateral" indicating that the foetus is breeched) and a foetal heart rate of 144 beats per minute.
In an "Antenatal record form" Ms Frencham made a further entry as follows:
"Admitted at 23.10 HR with history of contractions all day – Mostly irregular. Regular and painful since 1800 MI. T-36°, pulse – 92."
The records of the hospital also include a document known as a partogram. The partogram includes a time/heartbeat rate graph. Entries are made on the graph by a single dot which indicates the time of the taking of the heartbeat and the heartbeat rate. The graph includes an entry at 23.30 hours of a foetal heartbeat of 130 beats per minute.
The partogram also includes a note made by a senior registrar, Dr Yee Chit Leung against a time entry of 23.40 hours on 16 January 1991. This note records that:
•He ascertained that Ms Hoang had experienced a spontaneous onset of labour.
•He conducted a real time scan using an ultrasound machine from which he estimated the weight of the foetus to be 2.2 kilograms.
•He conducted a vaginal examination and Ms Hoang's cervix was 4 centimetres dilated, her membranes were intact and her presentation was that of a breeched foetus with a left sacral lateral position.
•He took a sample of blood.
•He inserted an intravenous cannula into Ms Hoang.
•He ordered continuous electronic foetal heart rate monitoring.
•Ms Hoang was to have a trial of labour.
In a hospital record known as an "Intravenous Fluid and Additive Order Sheet", Dr Leung recorded he administered 1,000 ml of Hartmann's (used to keep the vein open) at a starting time of 23.55 hours on 16 January 1991.
The midwife, Ms Frencham, also recorded in the partogram that Ms Hoang was given intravenous infusion of 1 litre of Hartmann's solution. The partogram is divided into time periods of one hour and it is not clear as to whether the entry made by Ms Frencham indicates that the infusion occurred just before, at or just after midnight.
Also on the time/heartbeat rate graph on the partogram Ms Frencham made an entry at 00.00 hours on 17 January 1991 that the foetal heartbeat was 140 beats per minute.
The partogram also contains an entry made by midwife Ms Frencham that at 00.05 hours on 17 January 1991 a vaginal examination was conducted. The entry records that Ms Hoang was 8 centimetres dilated. There was also an entry of "FH ü" which indicates that the foetal heart rate was within normal range.
The partogram contains a further entry by Ms Frencham in a time column between 00.00 hours and 01.00 hours on 17 January 1991 as follows:
"Distressed. Transf to DEL room 14."
A midwife, Mrs Christine Denise Laird made an entry on the partogram as follows:
"00.15. Transferred to RM14, Epidural inserted followed by a Caudal. Post Epidural insertion, monitor applied, persistent fetal bradycardia. Registrar paged."
Mrs Laird also made an entry on an "Epidural Form" details as to the name of the anaesthetist, the date, the time, and the weight and height of Ms Hoang. The time entry made was 00.15 hours on 17 January 1991.
Also the "Epidural Form" contained two entries made by Dr Crocker, one recorded the drugs used in the epidural, being Marcaine and Fentanyl. He made a time entry on the form of 00.15. The second entry relates to drugs used in the caudal block, being Marcaine and again the time entry made is 00.15.
A form entitled "Record of Drugs Received and Used" relating to the drug Fentanyl contained a time entry under the heading of "TIME GIVEN" of 00.15. This entry was made by a midwife Pat Davis. This was also countersigned by an anaesthetist, Dr Crocker.
A further entry was made on the partogram by a midwife Lorraine Zimmermann as follows:
"~~00.40~~ 00.35. FH = 60-65 on monitor. IV line increased. BP 90/60. PT nursed on L side. O² via mask 4 L/min. Reg informed."
A document entitled "Neonatal History" records as follows:
"Bradycardia – from presentation – first noted on CTG at
00.35."
(A CTG is a cardiotocograph which is an electronic heart monitor. It produces a paper printout. The plaintiffs called for production of this printout but the defendant has been unable to produce this document apparently because it cannot be located).
The time/heartbeat rate graph on the partogram records a reading on 17 January 1991 of 130 beats per minute at 00.30 hours and a reading of 60 beats per minute about half way between 00.30- 01.00 hours.
The partogram contains a further entry made by Dr Leung. The time entry is 00.40 hours. The note records "called to see foetal bradycardia", that Ms Hoang was fully dilated, that Dr Leung artificially ruptured her membranes, Ms Hoang pushed and a routine breech delivery occurred. The note also recorded Dr Leung performed a right mediolateral episiotomy during the delivery.
Ms Zimmermann made a further entry on the partogram as follows:
"DEL breech 00.47.
3d stage 0055.
Blood loss."
On a "Labour and Delivery Summary" document it is recorded that the birth took place at 00.47 hours on 17 January 1991. The same document recorded that the placenta appeared complete and healthy.
In a document entitled "Operative Vaginal Delivery" it is recorded that the delivery was at 00.47 hours on 17 January 1991 and that NBF (Neville Barnes Forceps) were applied to the after‑coming head to assist delivery.
The foetal heart rate readings recorded in the defendant's records can be summarised as follows:

Time

Rate (beats per minute)

23.10 hours

144

23.40 hours

130

00.00 hours

140

00.30 hours

130

00.35 hours

60-65

A document of the defendant headed "Hospital Protocols" and dated January 1987 under the heading "INTENSIVE FETAL MONITORING IN LABOUR", states that:
"It is recommended that fetal rate monitoring be performed in labour for patients who fit into any of the following categories."
It then lists in the categories:
•Epidural analgesia
•Breech presentation and other malpresentations
A document of the defendant entitled "Hospital Protocols" (dated January 1988 and reprinted January 1989) states under the heading "Foetal Monitoring in Labour" (Exhibit 13 – at p 30) as follows:
"In uncomplicated pregnancy and labour the fetal heart should be auscultated every fifteen minutes, for one minute, in the active phase of the first stage of labour and after every contraction in second stage. Electronic fetal heart rate monitoring should be performed in labour for patients who fit into any of the following categories." [auscultation is the procedure of listening to the heartbeat without using a continuous electronic monitoring device.]
Included in the categories listed as a complication of labour are:
•Epidural analgesia
•Breech presentation and other malpresentations.
This Protocol document further states:
"The reason for applying the monitor should be recorded in the notes. The registrar must be notified when the monitor is applied."
An identically worded statement is contained in a document of the KEMH entitled "Clinical Guidelines" and dated January 1991 (at p 90). However a nurse's handbook of KEMH entitled "Obstetric Nursing" (1^st ed 1978, Revised May 1987) contains no direction as to when electronic foetal heart rate monitoring is to be implemented.
A 2007 revised document of the defendant entitled "Clinical Guidelines, Section B: Obstetrics and Midwifery Guidelines" (Exhibit 22) includes the following guidelines relating to an epidural procedure:

1.7 Check and record baseline vital signs

Baseline recording of vital signs enables comparison and monitoring of changes after epidural insertion

The same guidelines provide that during the epidural procedure the following is to occur:
"Remove cardiotocograph (CTG) straps or place them under the women's buttocks. If CTG is removed continue intermittent auscultation of the fetal heart rate."

Pleadings

During the trial the plaintiffs abandoned various grounds of alleged negligence leaving the following grounds contained in par 8 of the statement of claim:
"(b)failed to vigilantly observe/monitor the second Plaintiff after the failed ECV at 37 weeks; (at trial amended to not include the period prior to 22.00 hours on 16 January 1991);
(f)failed to assess and monitor the Second Plaintiff and the First Plaintiff immediately after her attending KEMH at about 10.00 p.m. on 16 January 1991;
(g)failed to have the Second Plaintiff assessed by a Registrar or Obstetrician earlier than 11.10 p.m. on 16 January 1991;
(i)in the knowledge that the first plaintiff was in a breech position and had a persistent foetal bradycardia at 12.15am (approx) on 17 January 1991, failed to expedite the first plaintiff's delivery;
(j)failed to implement Dr Leung's direction for continual monitoring of the first plaintiff's foetal heart rate;
(k)in the absence of the continual foetal heart rate monitoring directed by Dr Leung, failed to carry out more frequent foetal heart rate checks between 11.40pm and the time of delivery;
(k)failed to detect the presence of foetal bradycardia before 12.15am on 17 January 1991;
(l)failed to ensure that a Registrar or Obstetrician was available on short notice to deliver the first plaintiff in the event that foetal bradycardia was detected by the foetal heart monitoring;
(m)failed to promptly respond to Nurse Laird's request for a Registrar to deliver the first plaintiff.
(o)discontinued the foetal heart monitoring between 12.05 am and about 12.15 am when such monitoring was of critical importance at the time."
The plaintiffs provided further and better particulars of paragraphs 8(b), 8(f), 8(g), 8(j), 8(k),8(k) and 8(o) by pleading that the alleged failure caused the disability to the infant first plaintiff (Michael) by depriving "the Defendant of the opportunity to identify the First Plaintiff's Intrapartum hypoxia and to administer intrauterine resuscitation and/or to deliver the First Plaintiff at an earlier point in time than was in fact effected. This resulted in the prolongation of the First Plaintiff's hypoxia, which in turn resulted in or alternatively contributed to the disability".
In relation to par 8(i), the plaintiffs provided further and better particulars as to how the failure caused a disability by pleading:
"The failure to (sic) expedite the First Plaintiff's delivery resulted in the prolongation of the First Plaintiff's hypoxia which in turn resulted in or alternatively contributed to the disability."
The plaintiffs also provided further and better particulars as to par 8(m) as to how the alleged breech caused the disability by pleading:
"A more prompt response to the request from Nurse Laird would have allowed the defendant to deliver the First Plaintiff at an earlier point in time than was in fact effected. This resulted in the prolongation of the First Plaintiff's hypoxia, which in turn resulted in or alternatively contributed to the disability".
The defendant denies the alleged negligence and specifically denies the plaintiffs' allegations that the foetal bradycardia could or should have been detected earlier than 00.35 hours on 17 January 1991 or that different conduct by the defendant's staff would have resulted in a different outcome for the first plaintiff.
The defendant also raised in its defence an issue under s 47A of the Limitation Act 1935 (WA) but this was not argued at trial and subsequently the defendant's solicitors have confirmed in writing that this issue is abandoned.

Witnesses called by the plaintiff

LanThi Hoang

Ms Hoang stated that on 16 January 1991 (the day after she had attended an antenatal examination) she experienced pain that gradually became worse. At about 7.00 pm she telephoned the hospital and told the person she spoke to that she was worried because she was having a lot of pain. Ms Hoang was told to come to the hospital if the pain continued. After she arrived at the hospital she spoke to a lady at the front counter and was asked to wait in the waiting area. Whilst waiting in the waiting area she felt considerable pain and was very worried. She said that about an hour after she had arrived at the hospital she was taken to a labour room where she was examined by a nurse and then later a doctor.
Ms Hoang said that after she had been in the examination room for some time she felt some wetness and called the nurse. A nurse examined her and she was then moved to another room. There she was given a needle by a doctor. She said that the first doctor who had examined her came into the room and the baby was delivered.
Under cross-examination Ms Hoang stated that a female attendant had taken Ms Hoang's details shortly after she had arrived at the hospital. She maintained that she had then been left in the waiting area for a very long time before she was taken to a room to be examined by the nurse and later the doctor.
Ms Hoang could not recall if she gave any information to the nurse about having irregular contractions all day which became painful and regular at about 6.00 pm. However she recalled giving this information to the lady at the counter when she first arrived. She could not recall the nurse conducting a vaginal examination after the doctor left. She could not recall at any time a nurse placing something on her stomach. She could not recall who moved her to the delivery room and she could not recall how many nurses were in the delivery room. She could not recall after receiving an injection in the area of her back in the delivery room anyone attaching any straps to her. She could not recall receiving oxygen through an oxygen mask in the delivery room. She stated that she could recall the doctor, when he initially examined her, stating that the baby would be delivered either that night or in the morning. She could also recall the doctor arriving in the delivery room and telling her to push. Ms Hoang stated that at no time from arriving at the hospital had she checked the time.
Ms Hoang stated that after the doctor had conducted his initial examination, her pain increased and at the time she arrived at the delivery room she was in a lot of pain.

John Tran Do

Mr John Tran Do is the husband of Ms Hoang. They were married in 1970. Mr Do was a lecturer at the University of Western Australia teaching Vietnamese culture and language. He retired in 1989.
He stated that on arrival at the hospital on 16 January 1991 he recalled his wife speaking to a lady at the counter and they were directed to wait in the waiting area. He estimated that they waited for about an hour after their arrival before his wife was taken into a room and examined by a nurse who called a doctor. The doctor also examined his wife. He recalled his wife being moved to a delivery room. He recalled another doctor coming into the room and giving his wife an injection in the back. After the injection he said that his wife felt more comfortable. He stated that they waited for some time before the first doctor returned. This doctor asked his wife to push again and again and the baby was then delivered.

In cross-examination Mr Do maintained that they had been waiting in the waiting area of the hospital for a very long time. He said his wife could not sit down because of the pain she was experiencing. He said he kept on consoling his wife. He stated that after a very long time a lady came out and took his wife to another room. He accompanied them to the other room.
Mr Do stated that he recalled that in the examination room the nurse examined his wife. He could not recall if his wife was weighed or if her blood pressure was taken. However, he later stated in his evidence that he recalled a nurse putting something on his wife's stomach or arm or somewhere to monitor something. He recalled his wife's pulse being taken. He could not recall the doctor who conducted the initial examination putting anything on his wife's stomach and showing a baby on a screen. He did not recall the doctor making a vaginal examination. He could not recall the doctor inserting a needle and attaching any tube into his wife's arm. He recalled the doctor telling his wife that the baby would be born either that night or the next day. He could not recall if the nurse remained in the room whilst the doctor conducted the initial examination. He could not recall a nurse conducting a vaginal examination in the examination room.
Mr Do stated that when his wife was taken to the delivery room he was asked to sit by his wife, but he declined due to cultural reasons. Instead, he sat in the corner in the delivery room and did not watch what was happening. He explained that being in the delivery room was a new experience for him as he had not been in the delivery room when his wife had given birth to their older children.
Mr Do said that whilst he was at the hospital he was anxious for his wife because he could see that she was experiencing pain. Because of this concern he did not pay attention to the time.
In re-examination Mr Do said that he was seated by his wife in the delivery room whilst she was being given a needle in her back. This he observed. However once the doctor came in to deliver the baby he moved to the corner of the room.

Professor Colditz

Professor Colditz is the director of the Perinatal Research Centre at the University of Queensland located in the Royal Women's Hospital in Brisbane. He is a practising neonatal paediatrician and a perinatal academic. Professor Colditz has been an active contributor to scientific and medical literature with over 110 manuscripts published in peer reviewed journals. He has specialised in the condition of the foetus and newborn babies and has a particular interest in the areas of brain development, damage and rescue of foetuses and babies. He has published widely in these areas.
Professor Colditz was provided with copies of relevant hospital records of the defendant. The most significant for the purpose of his opinion were "Neonatal Blood Gas" results obtained from the blood of Michael which, inter alia, contained the following recordings:

Date	Time	Site	pH	PCO²	BE
17.01.91	Cord	6.7	136	-27
0140	UAC	7.16	31	-17
0230	UAC	7.25	41	-8.9
0436	UAC	7.25	50	-5
0600	UAC	7.33	47.9	-1

Professor Colditz explained that the first entry indicated that the blood sample was taken from the umbilical cord and that the other samples from the umbilical artery.
He explained that the normal pH reading (a reading of acidity in the blood) amongst the general population is 7.4 but for infants at birth generally falls to a pH level of 7.3. A level of 6.7, as recorded in the first blood gas reading, was a severely depressed reading. A pH reading below 7 is likely to lead to physiological and health consequences. The heart is affected and blood is not pumped adequately to other organs, such as the brain and kidneys.
Professor Colditz explained that the PCO² reading was a measure of the pressure of CO² gas in the blood. A baby's PCO² reading will rise quickly if the baby stops breathing. A normal level for PCO² is 40. The initial reading of PCO² for Michael was 136 which is a remarkedly elevated reading.
Professor Colditz explained that the PCO² can change very rapidly and is not as critical as a diagnostic aid as other readings.
Professor Colditz explained that the BE reading (base excess) is critical for the purposes of his opinion in this matter. The base excess reading is the amount of base that must be added to the blood, assuming the PCO² is 40, to bring the pH reading back to 7.4. The base excess reading is not a measurement as such but a calculation made from an algorithm.
Professor Colditz further explained that a high negative reading of base excess indicates that the blood cells have been deprived of oxygen and this causes the cells to produce acid as an alternative source of energy. A base excess reading of -27 indicates a severe lack of oxygen either over a short period or a slightly less severe shortage over a longer period. It is uncommon for a baby with a base excess reading of -27 to survive. He stated that a normal healthy baby would be expected to have a base excess at birth of about -3 or -4.
In a report dated 4 June 2003 Professor Colditz stated as follows:
"If the cord is totally occluded or the placenta is totally separated and there is no oxygen at all being delivered by the placenta via the umbilical vein to the fetus (sic), then the accumulation of base excess will be maximal, a rate in the order of 1 mmol/l every 1 minute. In other words it would have taken an absolute minimum of approximately 27 minutes of total cessation of fetal oxygen supply for the base excess to arrive at -27, assuming it started at zero. If the amount of oxygen being supplied to the fetus (sic) had been reduced rather than removed totally, then the rate of fall of the base excess would be slower than 1 per minute."
Professor Colditz stated that the maximal rate of 1 mmol/litre per minute described by him in his report was derived from experiments with rats, piglets and foetal sheep. These animals were thought to have strong similarities to humans, but not necessarily the same.
In an earlier report dated 3 February 2003 (at p 7) Professor Colditz stated as follows:
"The cause for this hypoxic‑ischaemic event is unknown. How long was it present or when did it commence? No‑one can be certain but the degree of metabolic acidosis observed would take at least 20‑30 minutes to develop. This would be the case if there were total cessation of placental‑fetal oxygen transfer such as may occur with major placental abruption or uterine rupture. Neither of these events occurred and the placental‑fetal oxygen transfer is likely to have been only partially, and also perhaps intermittently, compromised. In this case it is likely that the acidosis developed more slowly over an hour or so and one would expect abnormalities of fetal heart rate pattern about half way through the progression of the fetal acidosis. There is no way of knowing whether these events occurred in this case because of the limited number of fetal heart rate recordings and the lack of a CTG."
In his oral evidence Professor Colditz identified three likely causes of total cessation of oxygen to a foetus –
(i)placental abruption which he concluded had not occurred in this case as the hospital notes recorded that the placenta was healthy;
(ii)uterine rupture which again he concluded from the hospital notes had not occurred as it would have been obvious to the staff and reported in the notes; and
(iii)cord prolapse which he described as being where the cord presents in front of the presenting part of the baby at birth. Again he concluded this did not occur as this was not recorded as having occurred in the hospital notes.
In his report dated 4 June 2003 Professor Colditz stated as follows:
"Since there is no evidence that there was a condition such as placental abruption, uterine rupture or cord prolapse which may have caused a total cessation of oxygen supply to the fetus, it is much more likely that the oxygen supply was reduced in an intermittent manner. In this scenario, just how much slower the base excess would have fallen would be dependent on the degree and the duration of the hypoxic episode or recurrent episodes. For example, it is quite possible for the base excess to fall to -27 over an hour or more if the oxygen supply is moderately severe and recurrent or sustained. Without a history of a clinical condition such as placental abruption, in my experience, it would be unusual to arrive at a base excess of -27 within an hour and the hypoxia may well have been present for longer than this."
In the report dated 3 February 2003 Professor Colditz referred to the heart rate readings recorded in the partogram and in particular the heart rate of 130 at 00.30 hours on 17 January 1991:
"I find it difficult to explain why the fetal heart rate was not abnormal earlier, given that severe metabolic acidosis is likely to have been present at least from 00.00-00.15. Almost certainly there would have been non‑reassuring signs on CTG, such as reduced short term variability and decelerations with contractions. A CTG was planned but not instituted because of Mrs Hoang's assessments, relocation to labour ward and procedures. The only way for the fetal compromise to have been detected earlier, which may have resulted in an earlier delivery, would have been for a CTG to have been commenced at a stage shortly after admission. Obstetric experts would be in a position to determine whether standard practice was followed."
Professor Colditz explained in his evidence that a heart rate reading of 130 at 00.30 hours was not what he would have expected, but a shorter period of normal heartbeat is not uncommon. He stated there may well have been low readings on either side which could have been observed if the heart rate had been continuously monitored. He explained that during contractions there is a short period of hypoxia which a healthy foetus can cope with. However, if a foetus is compromised by the hypoxia, bradycardia (a low heartbeat rate) may occur during the contraction and there may be a delay before the heartbeat returns to a normal level. A delay of this sort is known as a type 2 deceleration and is an unhealthy sign.
He further explained that a healthy heartbeat has variations in it and if these variations reduce you have a flat heartbeat. A flat heartbeat is another unhealthy sign. He stated that short term variations in the heartbeat can only be detected by using a CTG.
Under cross‑examination Professor Colditz conceded that he assumed that the blood sample which produced the base excess reading of -27 was taken immediately after birth whilst the baby was being resuscitated. He conceded that this assumption had been made notwithstanding that the neonatal notes did not contain an entry for the time of the blood sample being taken. However, he stated the assumption that he made was supported by what was usual practice (that is, a blood sample was taken from the cord almost immediately after birth) and also by the sequence of the readings contained in the neonatal blood gas result records. He conceded that if the blood was not tested immediately then it would need to be stored on ice, otherwise metabolism in the blood continued which would alter the base excess reading. However he stated that a delay of 5 to 15 minutes would not make any material difference to the reading.
Professor Colditz stated that a baby at birth with a base excess reading of -7 will still be within normal range, although it would be more negative than most. He stated that normally only when the base excess reading reached -12 or greater negativity does it produce an asphyxial injury. With a base excess of -12 about 50 per cent of babies will have neurological abnormalities either acute or long‑standing. It is unlikely that there will be long-term neurological injuries for babies with a base excess reading of less negativity than -12. Professor Colditz agreed that foetus may have developed a base excess of -12 without demonstrating any foetal heart rate abnormalities.
Based upon the base excess reading of -27, Professor Colditz concluded there must have been a severe degree of acidosis at 00.30 hours and therefore he believed it was most unusual to find a heart rate of 130 at 00.30 hours.
Professor Colditz agreed that the build-up of negativity in the base excess reading was likely to have been caused by cord occlusion of some sort, albeit there was no physical evidence of cord occlusion. He agreed this cord occlusion may have become more substantial as the mother approached the second stage of labour, her contractions became more pronounced and the body was preparing for delivery. He agreed that during the second stage of labour, when the baby was being delivered down the vaginal canal, a total cord occlusion can occur and can occur for long periods.
Professor Colditz stated that a valid assessment of short term variability of the foetal heart beat required an observation on a CTG of 5 to 10 minutes. Under re-examination Professor Colditz stated it is possible to calculate short term variations of heartbeat over a period of less than a minute, but the most useful time would be over 5 to 10 minutes.

Professor Michael Chapman

The plaintiff also called Professor Michael Chapman. He is a professor of Obstetrics and Gynaecology at the University of New South Wales. He is also the director of the division of Obstetrics and Gynaecology at the St George Hospital (a teaching hospital) in Sydney. Professor Chapman has conducted research and published widely on obstetrics, gynaecology and reproductive medicine.
In a report dated 7 May 1996 Professor Chapman concluded from the records of the defendant, that there had been an unreasonable delay in calling for a doctor after persistent bradycardia had been observed. However, he acknowledged in cross‑examination that this opinion was based upon the assumption that the bradycardia was observed at or about 00.15 hours. Professor Chapman conceded that if the bradycardia was not observed until approximately 00.35 hours, then there was no unreasonable delay in the attendance of the registrar.
In the report dated 7 May 1996 Professor Chapman stated that if the bradycardia commenced at 00.15 and had been observed at that time, then intervention within 10 to 15 minutes from the onset of the bradycardia would probably have resulted in a normal outcome without Michael suffering any disability.
In a report dated 13 August 1996 (Exhibit 10) he stated as follows:
"In relation to retrospective prediction of the length of bradycardia prior to delivery, I would have to say that it is impossible to predict, since the conditions of the baby at birth are dependent on several factors, e.g. the degree of restriction of the blood supply and oxygenation into the foetus, and the background reserve of the foetus.
However, this child was severely acidotic with a pH of 6.70 and a large base excess. Such a low pH would be attainable in a healthy term infant after total ocdusion [sic occlusion] of the blood supply after 10 to 15 minutes during which one would expect a bradycardia occurring almost immediately. However if there was only partial restriction of the blood supply, a bradycardia may have been present for in excess of half an hour. I doubt this helps!"
Professor Chapman in his oral evidence was asked various questions about the time it took to carry out the various procedures such as monitoring and the administration of an epidural and caudal block. In his evidence he stated that it would normally take about 3 minutes of observations using a CTG to observe a persistent bradycardia.
Under cross‑examination he stated that he would take somewhere between 15 minutes to three quarters of an hour to normally perform the procedures of a vaginal examination (including discussing the examination with the patient), moving the patient from one room to another, administering an epidural and caudal block, getting the patient settled, applying a CTG monitor and observing persistent foetal bradycardia. Under re‑examination Professor Chapman stated that the period it would normally take to decide to administer an epidural, to administer the epidural and then subsequently attach a CTG monitor would be approximately 15 minutes.
Professor Chapman stated under cross‑examination that if a patient could not be monitored by a CTG during the epidural itself, it should be put on immediately afterwards because there is a well known phenomenon of hypertension after the epidural leading to bradycardia.
Professor Chapman was not asked any direct questions as to his opinion as to whether a CTG monitor should have been applied in this case prior to the administering of the epidural. However he did state that he had inspected the protocols and guidelines of KEMH and they reflected what would have been regarded as the appropriate level of monitoring at a major teaching hospital such as KEMH as at January 1991.
Professor Chapman referred to the 1987 "Protocols", in dealing with the management of acute foetal distress, where there is an entry headed "Eliminate Cause". The Protocol sets the following procedure:
"Turn patient onto side;
Cease oxytocin;
Oxygen mask;
Vaginal Examination (to exclude prolapsed cord);
I.V. Tocolytic drugs."
Professor Chapman stated that these procedures [intrauterine resuscitation] would have been regarded as the appropriate first level of response at a major teaching hospital such as KEMH as at January 1991. Professor Chapman stated that generally foetal distress will resolve with such procedures without the need for further intervention. In the event the foetal distress does not resolve then the attending medical practitioner would need to take steps to expedite delivery, either by emergency caesarean section or by assisted breech delivery.
Professor Chapman stated that the protocols of the hospital provided the basis for operable practice. If a mishap occurred and the protocols had not been followed then questions would be asked why the protocols had not been observed. He agreed that the protocols are always subject to the assessment of the individual patient but that if the protocols are not followed then there needs to be a justification for this.

Witnesses called by the defendant

Dorothy Maude Sackville

A written statement of evidence of Ms Dorothy Maude Sackville was tendered by consent. Ms Sackville was employed as a receptionist and relief clerk at KEMH from 1971 to 24 February 2004. She was on duty on 16 January 1991 from 15.00 hours to 23.00 hours at the front desk and had first contact with people who entered KEMH that night. She does not remember Ms Hoang attending the hospital.
Ms Sackville described in her statement the admission protocols and her usual practice. On arrival of a woman at the hospital, Ms Sackville would obtain the patient's details as to name, date of birth and/or their medical record number. On obtaining this information she would retrieve the patient's medical records (although if the patient telephoned earlier providing these details, then she would have obtained the patient's hospital records in anticipation of the arrival of the patient). She would then create on a computer an admission registration form. After completion of the admission registration form a midwife would then escort the patient to the labour ward. If on arrival the patient was in labour or a distressed state, the midwife would be notified immediately and the patient transferred to the labour ward after Ms Sackville had obtained the patient's name, date of birth and/or medical record number.
On 16 January 1991 Ms Sackville created an admission registration form for Ms Hoang. This form recorded the time of admission as being 22.56 hours. The admission registration form contained 34 separate entries of information concerning the patient.

Dr Yee Chit Leung

Dr Leung was a senior registrar in obstetrics and gynaecology on duty at the King Edward Memorial Hospital for Women on 16 and 17 January 1991. He commenced his training in obstetrics in 1987 and completed it in 1993. Currently he is a gynaecological oncologist. He had no recollection of Ms Hoang and the events of 16 and 17 January 1991 other than that he saw Ms Hoang in the observation room on a trolley.
Dr Leung stated that the time entry of 23.40 hours made by him on the partogram was the commencement time of his examination in the assessment room. He estimated that he was with Ms Hoang until after 23.55 hours. He drew this conclusion from his note in the "Intravenous Fluid and Additive Order Sheet" which indicated that he started administering the drug Hartmann's at 23.55 hours. He estimated he left the assessment room at around midnight.
Dr Leung stated that it was his usual practice when conducting a real time scan, which according to the notes occurred sometime after 23.40 hours, to also observe the foetal heartbeat for a few seconds. He would have confirmed that it was within normal limits for a term foetus, which was between 120‑160 beats per minute.
He stated that it was his usual practice to order continuous electronic foetal heart monitoring in all breech presentation cases. This was done using a CTG. He could not say if a CTG machine was in the assessment room when he examined Ms Hoang at around 23.40 hours or whether a CTG monitor had been used on Ms Hoang before he arrived in the assessment room. He stated that if the CTG was not in an assessment room, he would not have ordered it to be pulled into the assessment room to begin monitoring immediately. If he had ordered it to be used immediately he would have stayed in the labour ward until it could be set up. He observed that there was nothing in the notes indicating he ordered CTG monitoring to occur immediately.
Dr Leung stated that it was his usual practice to order an epidural for a patient who had a breech presentation and was in active labour. This was done to provide pain relief.
Under cross-examination Dr Leung stated that he entered his notes on the partogram after he had completed procedures and accordingly the entry of 23.40 hours was an estimate only of the commencement time of the procedures he undertook.
Dr Leung agreed that he ordered continuous heart monitoring because there was a need for handling someone with a breech presentation with more care and also because the hospital protocols prescribed it. He said that the direction that continuous heartbeat monitoring be undertaken was normally made by the doctor. He agreed his expectations would have been that if it was practical the continuous heart monitoring ordered by him would be applied before the epidural to identify the foetal condition before the epidural procedure. He agreed the CTG would record not only the heartbeat rates but also indicate variability and any decelerations. Dr Leung agreed his examination of the heartbeat during the ultrasound would not provide details such as variability of heartbeat and deceleration and therefore would not provide the type of information that was needed prior to an epidural.
Dr Leung agreed the vaginal examination recorded in the partogram at 00.05 hours, which indicated Ms Hoang had dilated to 8 centimetres, meant that she had experienced a rapid dilatation and that she would get to full dilation within a half hour.
Dr Leung stated in re-examination that he concluded that the cord was not observed with the presenting part of the baby during delivery, otherwise he would have recorded it. However he was not able to assess whether there had been some problem with the cord which could explain the hypoxia experienced by the foetus.

Dr Steven Crocker

Dr Crocker was a senior anaesthetist registrar at the defendant's hospital on 17 January 1991. He obtained a Fellowship of the Faculty of Anaesthetists in 1989. He estimated that he had performed in the range of 5,000 epidurals and caudal blocks since 1986.
Dr Crocker explained he administered a caudal block, in addition to the epidural, as a caudal block provides a faster and more complete anaesthesia in the vaginal area.
Dr Crocker stated the time 00.15 hours recorded on the "Epidural Form" was probably the time he commenced the procedure. He said his practice was to complete the form after he had completed the procedure.
Dr Crocker signed the document "Record of Drugs Received and Used" which confirmed that he had used the drug Fentanyl in the epidural with Ms Hoang. He stated the time recorded in the document signifies the time the drug was taken out of the dangerous drug cupboard and not the time he administered the drug. He could not say at what time he signed the document.
Dr Crocker stated that, assuming he did not re‑glove and re‑gown before performing the caudal block, he estimated the total time he would have taken to perform the epidural injection and the caudal block was 15 to 20 minutes. If he had to re‑glove and re‑gown between the epidural and the caudal block then it would take a further 5 to 10 minutes.
Dr Crocker stated that if a CTG monitor is applied to a patient then it is held by two belts that pass around the patient’s back. He said he did not and would not have performed an epidural while these belts were in place even in the case of a breech delivery because the position of the belts impeded access to the spinal column for administering the epidural. Further, it was necessary to remove the belts to ensure the injection site was properly sterilised and remained sterile. For these reasons it was not his usual practice in 1991 or at any time later to have continuous CTG monitoring in place when he inserted an epidural.
Under cross–examination Dr Crocker agreed that a known complication of epidurals is that the blood pressure of the mother may drop and this may cause a problem with hypoxia for the foetus. He stated the measuring of the foetal heart rate was not a part of his tasks and came under the tasks of the obstetric department. He would have expected that the mother's blood pressure and the foetal heart rate to have been recorded prior to the epidural.
Dr Crocker stated he cannot recall any delivery where a patient was auscultated during the epidural procedure. However, he acknowledged he left it to the obstetrician to decide what monitoring occurred during the epidural. In re‑examination he stated he had experienced urgent cases involving foetal distress or cord prolapse when monitoring by CTG machine was ordered by the obstetrician during the epidural. This occurred about twice a year.

Ms Jan Dorine Frencham

Ms Frencham is a qualified midwife who has been employed at the King Edward Memorial Hospital for Women since 1982, except for a period of seven months in 1986. She does not remember Ms Hoang or Michael's delivery.
Ms Frencham stated in her experience the usual practice of the hospital was that on arrival at the hospital the patient reported to the reception desk in the emergency department. The reception staff located and retrieved the patient's records, entered the patient's registration details onto a computer, printed out an admission registration form and telephoned the staff in the delivery suite to collect the patient. In 1991 the usual practice was that after registration was completed, a midwife would escort a newly admitted patient to an assessment room. In the assessment room the usual practice was for the midwife to conduct a preliminary examination and auscultate the foetal heartbeat to ensure it was within normal limits, which is between 120 to 160 beats per minute.
Ms Frencham confirmed she made an entry in the "Obstetrics History and First Examination Chart" which recorded at the time of 23.10 hours on 16 January 1991 a foetal heartbeat of 144 beats per minute. She was unable to say whether this reading was obtained using a doptone (a small electronic machine which would be placed on the abdomen to obtain a foetal heartbeat but did not produce a paper printout) or a transducer from a CTG machine. She said a CTG machine was not normally permanently left in the assessment rooms, but there was a CTG normally in each delivery room.
Ms Frencham explained that after her initial examination, it was her practice to contact the duty registrar and ask him or her to assess the patient and confirm the baby's presentation. She said the usual practice was for her to remain in the assessment room whilst the patient was examined by the duty registrar.
Ms Frencham noted the partogram indicated Dr Leung had conducted a vaginal examination and the patient was 4 centimetres dilated. This would constitute an established labour and the usual practice was then to transfer the patient to a delivery room. In her experience, a standard transfer to the delivery room took 5 to 15 minutes depending on how busy the labour ward was at the time. In an emergency, a transfer could be completed in 5 minutes.
She stated that if continuous electronic foetal heart rate monitoring was ordered it was usual practice for the monitoring to occur in the delivery room where a CTG machine was always available. She stated the CTG monitoring could not and would not have occurred during transfer from the assessment room to the delivery room. If an epidural was to be inserted, the usual practice was to monitor continuously after the epidural procedure had been performed.
Ms Frencham could not state whether a foetal heart reading recorded by her at 00.00 hours on 17 January 1991 of 140 beats per minute was with a doptone or a transducer from a CTG machine.
Ms Frencham said it was her usual practice to listen to the heart rate for the duration of a contraction and to continue listening once a contraction had ceased to assess whether there were any early or late decelerations of the foetal heart.
Ms Frencham noted from the partogram that she conducted a vaginal examination of Ms Hoang at 00.05 hours. She stated it was not her usual practice to perform a vaginal examination so soon after the duty registrar had assessed a patient unless something happened that indicated to her that labour was starting to progress more rapidly. Indications for a vaginal examination may have been increased pain, increased frequency of contractions or increased distress during contractions.
Ms Frencham stated the time entry of 00.05 hours in the partogram under the heading "VAGINAL EXAMINATION" would have been the commencement time of her vaginal examination and not the time she recorded the findings. She stated it would have taken her between 5 to 10 minutes to perform the vaginal examination.
Ms Frencham detailed what was involved in a vaginal examination as follows:
"(a)explain the procedure to the patient and obtain her consent;
(b)prepare the equipment;
(c)position the patient;
(d)wash my hands;
(e)put on sterile examination gloves and gown;
(f)conduct a vaginal examination;
(g)listen to the foetal heart rate following the examination; and
(h)record findings."
Ms Frencham noted she entered a tick against the initials "FH" in that part of the partogram recording her vaginal examination of Ms Hoang. She explained this indicated that she had auscultated Michael's heart rate and found it was within normal parameters which meant that the foetal heart rate was between 120 and 160 beats per minute. Also recorded in the partogram, as a part of Ms Frencham's findings on the vaginal examination at 00.05 hours, was that Ms Hoang had dilated to 8 centimetres. Ms Frencham stated the usual practice with a patient who was 8 centimetres dilated, and still in the assessment room, was to ring the alert bell, obtain assistance, place the patient on a trolley and immediately transfer her to the delivery room.
Considering the partogram shows that Ms Hoang's cervix had dilated from 4 centimetres to 8 centimetres in about 25 minutes, Ms Frencham concludes that Ms Hoang's labour must have progressed rapidly and that delivery would have been imminent.
Ms Frencham recorded on the partogram "Distressed. Transf to DEL room 14". Ms Frencham explained that her practice was to record "distressed" to indicate that the patient's labour was progressing and the patient was not coping as well with the increasing pain, strength, duration and frequency of contractions.
Under cross-examination Ms Frencham stated she had no recollection of this particular case, but it was usual practice for the midwife to go down to the lobby or foyer of the hospital and escort the patient to the assessment room.
Ms Frencham stated, although she made an entry in the partogram at 23.10 hours on 16 January 1991 that the foetus was in a breech position, she would not have been certain if the baby was in fact breeched and needed to have it confirmed by the registrar using an ultrasound machine. She stated she did not normally conduct a vaginal examination before the registrar conducted a vaginal examination and accordingly she would not have been aware Ms Hoang was in the active stages of labour until the registrar ascertained this in his examination commencing at 23.40 hours.
Ms Frencham stated it was her normal practice to auscultate the heart rate during contractions both to ascertain the heartbeat and pick up non‑reassuring signs like a type 2 deceleration. She stated the variability in the foetus heartbeat could be detected either on a CTG machine or with a doptone machine. She felt that if there was a persistent reduced variability you would be able to pick this up in two minutes of assessing using the doptone.
Ms Frencham stated that she was unsure at what time she notified the labour ward coordinator to allocate a delivery room, but assumes that it would have been after her initial examination of Ms Hoang at 23.10 hours. She was not able to say as to how long it took to organise a delivery room and transfer Ms Hoang to it.
Ms Frencham also admitted she was unable to recall whether the vaginal examination which she recorded at 00.05 hours occurred in the observation assessment room or in the delivery room. However, Ms Frencham stated it was not her practice to conduct a vaginal examination after the patient had been taken to the delivery room. She stated it was the responsibility of the midwife in the delivery room to conduct any such examination in the delivery room. She accepted that variables could occur, but could not recall what happened in this particular case.
Ms Frencham stated she was unable to say whether the heartbeat reading at 00.00 hours and her entry in the vaginal examination section of the partogram with a tick against the letters "FH" were the same or different heartbeat auscultations.

Christine Denise Laird

Christine Denise Laird is a qualified midwife employed by the King Edward Memorial Hospital for Women. She has been employed at the hospital since 1981 and completed her midwifery training and registration in 1984. She is currently working as a nurse/researcher and midwife in the emergency centre at the hospital. She was on duty as a midwife at KEMH on 17 January 1991.
She wrote on the partogram relating to Michael's delivery the following entry:
"00.15: 'Transferred to RM 14, Epidural inserted followed by a Caudal post Epidural insertion, monitor applied, persistent foetal bradycardia. Registrar paged."
Mrs Laird stated it was her usual practice to record events as soon as she was able to but after they occurred, given that the patient's care was her first priority. For a series of events her practice was to record the approximate time when the events began.
Mrs Laird confirmed she made an entry in the "Epidural Form" entering the anaesthetist's name, the date, the time, weight and height of the patient. On this form the time entry made by her was 00.15 hours. This entry, together with the entry on the partogram made by her, leads her to conclude that Dr Crocker (the anaesthetist) was in the delivery room by around 00.15 hours on 17 January 1991.
Mrs Laird cannot recall whether she attempted to apply a CTG monitor to Ms Hoang before the epidural was inserted. She believes she would not have applied a CTG monitor if Dr Crocker had already arrived. It was not her usual practice to apply a continuous electronic foetal heart rate monitoring during the procedure to set up and administer an epidural. Once Dr Crocker arrived it would have been her usual practice to assist him with the epidural. She stated there was insufficient time to apply a monitor if you were assisting the anaesthetist to set up for the epidural procedure. It was her usual practice to take and record a patient's blood pressure before insertion of the epidural and this was recorded in the "Epidural Form".
It was her usual practice to take and record the foetal heart rate before the insertion of an epidural if it had not recently been recorded. She noted that the foetal heart rate had been recently taken during the vaginal examination and recorded by midwife Jan Frencham as being within normal limits.
It was the usual practice for the anaesthetist to request her to obtain the drug Fentanyl from the drug cupboard. In 1991 the usual practice was to page the delivery suite coordinator in order to obtain the keys to the drug cupboard. Normal practice would have been that the coordinator was paged to room 14 and that Mrs Laird would have met the coordinator at the drug cupboard which was some 20 metres from the room. Mrs Laird noted that in the document "Drugs Received and Used" there is an entry for 17 January 1991 of 100 mg of Fentanyl being checked out by P Davis at 00.15 hours. This time entry usually indicated the time that the drug was removed from the cupboard. Mrs Laird stated that other drugs used during the epidural insertion such as Marcaine and local anaesthetic, were kept on the bottom shelf of the epidural trolley in the delivery room.
Mrs Laird described the procedures involved in the insertion of the epidural and caudal block. She estimated it would have taken Dr Crocker about 15 minutes to insert both the epidural and caudal block and administer the drugs. She stated that whilst Dr Crocker was inserting the epidural and caudal block it would not have been possible to monitor the foetal heart rate continuously with CTG monitoring. She explained that the CTG monitors had two belts. Each belt had a transducer attached to it. One transducer was used to monitor frequency, strength and duration of contractions. The other transducer monitored foetal heart rate. It was not possible to insert an epidural and caudal block while these two belts were in place. She stated that it was not possible to hold a transducer on the patient's abdomen, prepare for delivery and assist the anaesthetist with epidural insertion at the same time.
Mrs Laird stated that after the epidural she recorded Ms Hoang's blood pressure in the "Epidural Form" and she notes from the partogram that she also applied a foetal heart rate monitor. This was a CTG monitor.
She stated she recorded by a dot on the time/heart rate graph on the partogram that at 00.30 hours the foetal heart rate was 130 beats per minute.
Mrs Laird also noted from the partogram record that after she applied the monitor she detected a persistent foetal bradycardia and she paged the registrar. She estimates from the entries on the partogram she would have assessed the persistent foetal bradycardia and paged the registrar both at about 00.35 hours. Mrs Laird noted from the partogram there was another midwife present at this time, Ms Lorraine Zimmermann, and Ms Zimmermann had recorded the foetal heart rate on the monitor at 00.35 hours was 60‑65 beats per minute.
From the notes of midwife Zimmermann on the partogram, Mrs Laird concluded that at around 00.35 hours they administered intrauterine resuscitation by:
(a)turning Ms Hoang on her left side;
(b)administering oxygen to Ms Hoang via a mask at 4 litres per minute; and
(c)increasing the rate of her intravenous infusion.

This was in accordance with standard practice when an assessment was made of persistent foetal bradycardia.
Under cross-examination Mrs Laird admitted that she had made a statement dated 23January 1991 in which she stated as follows:
"The epidural/caudal was inserted by Dr S Crocker and during insertion Mrs Hoant began pushing. A Vaginal examination was done by Jan Frencham and Mrs Hoant's cervix was now at 8 cms dilated. Jan then returned to Observation. Pre-epidural BP was 110 over 60, and post‑insertion BP was 90 over 60. Immediately after checking the patient's BP, I listened to the foetal heart with a grey monitor. Lorraine Zimmermann returned to the room at this time and the foetal heart rate was sitting at 60-65 beats per minute persistently."
Mrs Laird agreed this statement suggested that the vaginal examination conducted by Ms Frencham (which was recorded at 00.05 hours) occurred after the epidural and therefore the epidural must have taken place earlier than suggested in the other records which suggested that it commenced at 00.15 hours. However, she could not recall what was the sequence of events. She agreed that she had no independent recollection of when entries were made by her in the hospital records, but said that generally entries were written after the event. Although in evidence-in-chief she had stated the partogram indicated that she had recorded the heartbeat at 130 beats per minute at 00.30 hours, she admitted under cross-examination, she could not say whether she had in fact recorded this in the partogram or whether it was recorded by somebody else.
Mrs Laird acknowledged that complications could occur during an epidural. There were risk factors of a drop in blood pressure of the mother and foetal hypoxia and this made it important to monitor the mother's blood pressure and monitor the foetal heartbeat. She agreed it was important before the epidural to establish a base line for the foetal heartbeat by obtaining a reading before the epidural. It was also important to obtain a reading after the epidural.
Although the partogram recorded at a time entry of 00.15 hours a series of events which included a monitor being applied, Mrs Laird admitted she was unable to say precisely what time the monitor was applied.
Mrs Laird stated that a reasonable foetal heart rate 10 minutes prior to the epidural would be reassuring, but hopefully a midwife would have time to do another one immediately prior to the epidural. She acknowledged the protocols and guideline documents required as a minimum a recording of the foetal heart rate every 15 minutes (although in re‑examination she stated that this was not always in her experience followed as it was very difficult to monitor foetal heart rate every 15 minutes and it was generally accepted practice that it take place every 30 minutes). She agreed if a foetal heart rate was not taken immediately prior to the epidural, then given that epidurals take 15 to 20 minutes, then the next heartbeat reading taken after the epidural would generally be outside the guidelines and this would not be good clinical practice .
Mrs Laird stated that during the epidural procedure when the straps were removed it was possible to conduct intermittent auscultation. This was done by manually holding the foetal transducer of the CTG on the abdomen. She stated that the intermittent auscultation could also take place using a doptone monitor. She stated that a third method of auscultation was using a Pinards (which is like a foetal stethoscope) but this could not be used during epidural procedures.
In re-examination Mrs Laird stated that on the "Epidural Form" she generally entered the time prior to the anaesthetist starting the procedure.
Mrs Laird stated that as far as she was aware the "Obstetric Nursing" handbook (Exhibit 14) was applicable in 1991. She stated the other protocol and guideline documents were generally for medical staff and not nurses.

Lorraine Fiona Zimmermann

Lorraine Fiona Zimmermann is a trained midwife. She has been employed as a registered nurse and midwife at the King Edward Memorial Hospital for Women since 1984 except for a two year period when she took maternity leave and one other additional year when she took unpaid leave. Since 1987 she has worked in the delivery suite at the hospital.
Ms Zimmerman stated she recalls that sometime after midnight on 16January 1991 she was instructed by Mrs Laird to take a tea break. She was then waiting for Ms Hoang to be transferred into room 14. The transfer was not completed when she went for her tea break, but she recalls seeing a patient, who she believes was Ms Hoang, being transferred along the corridor by one or two midwives. When she returned from her tea break Ms Hoang was in the delivery room.
Ms Zimmerman stated that at around 00.35 hours Mrs Laird asked her to write a record of the foetal heart rate. She recorded on the partogram:
"00.35 FH equals 60-65 on monitor. IV line increased. BP 60/60. PT nursed on L side. O² via mask 4 L/min. REG informed."
Ms Zimmerman stated she signed the entry. She first wrote down the time entry as "00.40" but then crossed it out and wrote "00.35". She could not recall when she wrote the entry concerning the blood pressure and the other entry concerning treatment given to the patient, but recalled being instructed by Mrs Laird to write down the foetal heart rate.
Ms Zimmerman stated the entries made by her on the partogram indicate that the patient's IV line was increased, the patient was moved onto her left side and she was given oxygen. However, she now has no recollection of performing these procedures.
Ms Zimmerman stated that on the partogram she indicated by a dot on the time/heartbeat rate graph a reading of 60 beats per minute at approximately 00.45 hours. However, she believes that the observation was probably made around 00.35 hours.
Ms Zimmerman stated that shortly after she had returned from her break, she recalls the obstetric registrar arriving in the delivery room. She recalls Ms Hoang pushing and an unremarkable breech delivery occurring.
Under cross-examination Ms Zimmerman agreed she could not recall why she changed the time entry on the partogram of 00.40 hours to 00.35 hours. She could only speculate that her watch differed from that on the wall and so she changed it.
In re-examination Ms Zimmermann stated her tea break was normally 10 to 20 minutes.

Professor Michael J Bennett

Professor Bennett is a qualified obstetrician and gynaecologist. He is a Professor of Obstetrics and Gynaecology at the University of New South Wales and head of the Clinical Division of Obstetrics and Gynaecology.
Professor Bennett in a report dated 21 November 2000 stated that:
"The second feature that concerns me somewhat is that a profoundly hypoxaemic baby was delivered at 00.47 hours and the documents that were contemporaneously constructed suggest that the first and only episode of fetal heart rate abnormality occurred 12 minutes earlier. The fetal heart rate recorded at 23.10 hours, midnight and 00.30 hours is well within the normal range and yet five minutes later there is a profound bradycardia which persists through until the baby begins to respond to resuscitative efforts. This sequence of events would suggest very strongly to me that the very rapid progress between 4 cms and full dilation in the space of one hour probably was sufficient to tip a severely compromised baby over the edge to the point where it was completely unable to maintain homeostasis and but for the very expeditious delivery would probably have died.
Given the very short interval between the detection of the bradycardia and delivery I believe … that it would not have been possible to have done a Caesarean Section and delivered this baby any more quickly. In this respect … I think it highly unlikely that the method of delivery would have played any role at all in the long term outcome."
Professor Bennett went on to say:
"It would be my view that Michael Do's problems began a long time before his mother went into labour and appear to have been compounded by a very dramatically fast first stage of labour during the latter part of which his regulating systems collapsed accounting for his condition at birth." [However, in cross‑examination Professor Bennett stated that there was no evidence that the baby was compromised prior to entering into labour].
In a further report dated 3 November 2005 Professor Bennett expressed an opinion as to the allegation contained in par 8(g) of the amended statement of claim which alleges that in the absence of the continual foetal heart rate monitoring directed by Dr Leung, the defendant failed to carry out more frequent foetal heart rate checks between 11.40 pm and the time of delivery:
"In terms of the frequency of fetal heart rate monitoring I would have to agree with Professor Colditz, who on page 9 of his report of 3 February 2003 states that the fetal heart rate recordings are within standard practice. There are five records of the fetal heart rate in a space of 85 minutes, during which she was moved into a delivery suite, prepared for and received both an epidural and a caudal block and it would be my view that this was a perfectly satisfactory frequency of monitoring particularly since on every occasion but for the last one a normal rate was recorded. Quite what 'more frequent' actually means I'm not sure, but the standard in 1990 for an uncomplicated labouring patient (breech or otherwise) was auscultation at intervals of something like 15 minutes."
In the same report, in relation to the allegation contained in par 8(k) of the statement of claim that the defendant was negligent in failing to detect the presence of foetal bradycardia before 12.15 hours on 17 January 1991, Professor Bennett stated:
"I think that it is likely that the failure to detect the presence of the bradycardia was simply because it wasn't there to be detected."
Further, in the same report (p 6), Professor Bennett stated as follows:
"Professor Colditz reports that total occlusion of the cord or complete placental abruption increases the acidaemia by approximately 1 mmol/L per minute. Since there was no evidence of total occlusion of the cord nor was there any evidence of placental abruption I think we have to conclude that this acidaemia built up over a longer period of time, but how much longer would I believe have to be conjecture." (my emphasis)
In his oral evidence Professor Bennett stated that in his reports he had not taken into account foetal heart rate checks by Dr Leung during his ultrasound examination at 23.40 hours and a further heart rate check by Ms Frencham during her vaginal examination at 00.05 hours. These additional heart rate checks strengthened his opinion that the level of heart rate monitoring was adequate.
Under cross-examination Professor Bennett stated that women over the age of 40 run a significantly higher risk of a variety of complications in labour. He agreed that a baby being breeched presented an additional risk factor.
Professor Bennett stated that in his opinion the heart rate reading at 00.30 hours showing a heartbeat of 130 and the reading at 00.35 hours showing a heartbeat reading of 60-65, suggested something very serious occurred in this time period. However, he agreed a normal foetal heart rate did not exclude the possibility that a foetus was in trouble.
He agreed that a check of foetal heartbeat during an ultrasound examination such as that conducted by Dr Leung at 23.40 hours would not have allowed a doctor to make important findings as to decelerations or variations in the heartbeat. He disagreed with the evidence of Mrs Laird that a variability in the heartbeat of the foetus could be ascertained by using a doptone monitor. However, the doptone monitor could be used to assess decelerations providing the midwife on listening through contractions concentrated on this aspect.
Professor Bennett disagreed that reductions in variability and type 2 decelerations would appear first if a foetus was in trouble. He stated that only 50 per cent of foetuses in trouble have a changed heart rate.
He stated that an emergency situation might indicate a breech extraction delivery should be used, but it was more dangerous than an assisted breech delivery. A breech extraction is when the midwife or doctor reaches into the mother and pulls the baby out. He said in doing so the general belief was that this would enable the baby to be delivered earlier. However, Professor Bennett stated that where the mother has had children before, the mother can probably push it out a lot quicker than the baby can be extracted.
Professor Bennett agreed that if you have a foetus who starts exhibiting non‑reassuring signs of reduced variability and/or bradycardia you did not immediately execute an extraction, but you attempted other methods of treatment such as administering oxygen, changing the position of the mother and you might administer tocolytic drugs which would contract the uterus and increase blood flow to the foetus. He agreed that as a foetus became more hypoxic the less its compensatory systems can cope with the hypoxic environment and as a generalisation it is probably correct to say that the foetus's ability to respond to treatment such as administration of oxygen, changing position and administration of tocolytic agents is reduced.
Professor Bennett stated that he concluded the sequence of events suggested the rapid progress of the labour would have been sufficient to take a compromised baby over the edge, but he could not say whether in fact this baby was compromised. However, he conceded that one explanation of the terrible state of the baby when it was born was that it was compromised before the rapid progress of the delivery.
Professor Bennett thought that even in the event of an acute event like a complete cord compression or an accidental haemorrhage it would take probably more than 12 minutes for a baby to reach the deteriorated state Michael was in at birth, but that it might happen.
Professor Bennett stated the rate of changes in base excess mentioned by Professor Colditz of 1 mmol/Litre per minute was based on research on sheep. He stated there was no absolute proof this rate of change occurred in humans. However, he conceded it was generally accepted as the rate for humans. He said that in considering how long a total occlusion might produce a base excess of -27 it needed to be taken into account a healthy foetus is not necessarily one with a base excess of zero as the average base excess at birth is -7. He agreed it was generally believed that the more the oxygen supply is interrupted, the faster the build-up of base excess will occur. Accordingly, in the absence of a catastrophic event it would take longer to build up the base excess.
Under re-examination Professor Bennett stated that even if alternative methods of delivery or forms of treatment had been pursued earlier he did not think anything different would have occurred in relation to Michael's birth.
He said that in his opinion the evidence of pH at 6.7 and a base excess of -27 did not exclude a catastrophic event of total cord occlusion after 00.30 hours. He says that this is one explanation that was open.

Dr Mark Peter Umstad

Dr Umstad is a qualified medical practitioner who is a specialist obstetrician and gynaecologist. He is the team leader at the Royal Women's Hospital in Melbourne. He has a Doctorate of Medicine in the area of intrapartum and foetal monitoring.
In the report dated 15 March 2002 Dr Umstad stated as follows:
"Time to deliver by emergency caesarean section.
It is very clear from my discussion above that I believe the claimant suffered perinatal asphyxia. The obvious question is whether or not this could have been prevented. From my reading of the records it indicates that a fetal bradycardia was noted at 00:35 hours on 17 January 1991 and delivery was affected at 00:47 hours. It would have been simply impossible to an affect an emergency caesarean section within this period of time."
In the same report Dr Umstad further stated:
"… It is my experience that even in the most urgent situation it is absolutely impossible to perform an emergency caesarean section in under 10 minutes. Under no circumstances would it have been possible to deliver the claimant by caesarean section more quickly than by an assisted vaginal breech delivery with forceps to the after coming head.
My only area of concern relates to whether or not cardiotocographic monitoring was continued during the administration of the lumbar epidural analgesia. It is notoriously difficult, and often impossible to continue monitoring during the administration of an epidural for technical reasons. The mother is often moved into various positions to allow the epidural to be inserted but these positions make recording of the fetal heart rate virtually, if not completely, impossible. Even if a bradycardia had been noted during the insertion of the epidural it is still extremely unlikely that an emergency caesarean section could have been performed any more quickly, and the claimant delivered any sooner, that was the case anyway. …" (my emphasis)
In a further report dated 30 October 2004 Dr Umstad stated as follows:
"4.1. Given the findings on assessment, and assuming Mrs Hoang arrived at 21:15, would Mrs Hoang's management have been different had she been earlier assessed?
I do not believe that any different management would have occurred. When she was assessed at 23:40 she was noted to be 4cm dilated with a breech presentation and in labour. Clearly she would have been less than this when she first arrived and I do not believe that there was any evidence that the management would have been any different."
Further in the same report Dr Umstad stated as follows:
"6. Timing of ischaemic event
I have referred to Professor Colditz's 4 June 2003 report. I have read his comments in detail and would agree with his comments in their entirety. I think he has presented a very detailed basis for his opinion and I certainly could find no fault in his reasoning."
Further in the same report Dr Umstad stated as follows:
"9.2 If so, was it inappropriate to suspend monitoring for 10 minutes?
I would go further and suggest that there seems to have been virtually no response between 00:15 and 00:35 hours in relation to what seems highly likely to have been a persistent fetal bradycardia. This is quite likely the sentinel event which potentially could have led to cerebral palsy. A prolonged fetal bradycardia of 20 minutes on a growth restricted fetus (sic) presenting as a breech presentation is potentially a considerable insult.
9.3If so, how would Mrs Hoang's treatment have been different had the bradycardia been diagnosed earlier?
It is entirely appropriate that, following the diagnosis of a fetal bradycardia after epidural analgesia has been administered, that appropriate methods of intrauterine resuscitation are undertaken. This could include a fluid bolus, administration of oxygen, alteration of position and the administration of a tocolytic agent as well as a vasoconstrictive agent to improve fetal perfusion. It is also not entirely clear that the fetal bradycardia did not predate the epidural analgesia. Failure to respond to a persistent bradycardia would routinely lead to an expedited delivery. It may well be that a vaginal breech delivery would still have been undertaken and could not have been undertaken much more quickly than it was, although the option for an emergency caesarean section should she have been less than fully dilated could have been considered. However, the ability to perform a rapid emergency caesarean section in any hospital just after midnight in a very brief period of time is extremely limited."
In a report dated 14 December 2004 Dr Umstad said he was unable to determine from the notes of the hospital what time persistent foetal bradycardia had occurred but stated that any increase in the length of bradycardia is associated with a potentially more adverse outcome.

Further, evidence was also given that the foetal heart rate ought to be monitored electronically prior to the epidural in order to provide a baseline for comparison with the foetal heart rate after the epidural (although I conclude that the baseline of the foetal heart rate could clearly be obtained by auscultation as opposed to electronic monitoring).
I conclude, based on the protocol and guideline documents, and the explanations given by the medical witnesses, that as a general rule a CTG monitor should be applied prior to an epidural being performed. However, this general standard of care is subject to the clinical circumstances at the time which might override the general rule.
The issue of whether electronic monitoring ought to continue during the epidural is somewhat different. The 2007 "Clinical Guidelines" appear to contemplate that it is accepted practice during the epidural to disconnect the CTG. This is consistent with the evidence of Dr Crocker, Ms Frencham and Mrs Laird as to the usual practice and supported by the evidence of Dr Umstad. Further, the Protocol and Guideline documents do not specifically address the issue of whether CTG monitoring ought to occur during the epidural itself or how the practical difficulties of conducting a CTG during an epidural are to be addressed.

The law

It is trite law that in a claim based upon negligence, the plaintiff must prove on the balance of probabilities that there was a duty of care, a breach of the duty of care and the breach caused injury.
It is not in dispute in this matter that the defendant owed a duty of care to the plaintiffs. Both plaintiffs were patients of the hospital. The duty of care was both a direct duty of care by the hospital and also as a result of vicarious liability for its servants and agents. It was a duty that could not be delegated (see Ellis v WallsendDistrict Hospital (1989) 17 NSWLR 553, Kirby P at 567; Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542, Reynolds JA at 561; Kondis v State Transport Authority (1984) 154 CLR 672, Mason J at p 686).
Further, it is not in dispute that the duty of care imposed on a hospital is a duty that equates to the duty imposed on a medical practitioner. The duty of care of a medical practitioner is to exercise reasonable care and skill in the provision of professional advice and treatment (see Rogers v Whitaker (1992) 175 CLR 479 at p 483 and 492).
In deciding whether there has been a breach of duty of care the relevant legal principles applicable are those expressed by the High Court in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48.
"In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.”
In the case of Roads & Traffic Authority (NSW) v Dederer [2007] HCA 42, Gummow J at par 69 stated that:
"What Shirt requires is a contextual and balanced assessment of the reasonable response to a foreseeable risk. Ultimately, the criterion is reasonableness, not some more stringent requirement of prevention."
The test for medical negligence is not what medical practitioners conclude or say they would, or would not have done "in the same or similar circumstances". However, the cases where the alleged negligence is in the area of diagnosis and treatment, the evidence of medical practitioners is of very considerable significance. In Rogers v Whitaker Gaudron J at p 493 stated as follows:
"The evidence of medical practitioners is of very considerable significance in cases where negligence is alleged in diagnosis or treatment. However, even in cases of that kind, the nature of particular risks and their foreseeability are not matters exclusively within the province of medical knowledge or expertise. Indeed, and notwithstanding that these questions arise in a medical context, they are often matters of simple commonsense. And, at least in some situations, questions as to the reasonableness of particular precautionary measures are also matters of commonsense."
(See also Strempel v Wood & Anor [2005] WASCA 163: McLure J at par 28).

Causation

Whether or not a causal connection exists between a breach of duty and any harm suffered by the person to whom the duty is owed is a question of fact to be determined on the balance of probabilities (see Bennett v Minister for Community Welfare (1992) 176 CLR 408, McHugh J at p 428).
In resolving the question of causation the "but for" test has an important role to play but it is not a comprehensive or exclusive test of causation. As stated in March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at p 515, the issue of causation must be determined by applying commonsense to the facts of each particular case.
It seems to be now recognised in Australia that the decision of Gaudron J in Bennett's case is a correct statement of the law of causation in Australia:
"Although it is sometimes necessary for a plaintiff to lead evidence as to what would or would not have happened if a particular common law duty had been performed, generally speaking, if an injury occurs within an area of foreseeable risk, then, in the absence of evidence that the breach had no effect, or that the injury would have occurred even if the duty had been performed, it will be taken that the breach of the common law duty caused or materially contributed to the injury."
(See Bennett's case per Gaudron J at 420-421, Amaca Pty Ltd v Hannell (2007) 34 WAR 109, Martin CJ at 120, Steytler P and McLure J at p 194).
However, this does not mean that the burden of proof shifts to the defendant. There is a shift of an evidentiary burden if there is a breach of duty that has occurred followed by injury within the area of foreseeable risk. However, if there is sufficient evidence to displace the prima facie case, it remains for the plaintiff upon the whole of the evidence to satisfy the tribunal of fact that the injury was caused by the defendant's negligence (see Amaca's case, Martin CJ, p 127, Steytler P and McLure J at p 195; Purkess v Crittenden (1965) 114 CLR 164 at 168).
In this case, even if there was a breach of the duty of care by the defendant's staff, the defendant has lead evidence through Professor Bennett, that the outcome in terms of Michael’s injuries would not have been different. Further, as will be detailed later in this decision, there is additional evidence which supports the contention of the defendant that even if there had been different conduct by the defendant’s staff it would not have resulted in a different outcome for Michael. Accordingly, I find that even if I find there has been a breach of duty, the defendant has fulfilled its evidentiary burden on the issue of causation and the onus remains with the plaintiffs to prove causation on the balance of probabilities.
In Amaca'scase (supra), Martin CJ quoted with approval passages from the decision of Spigelman CJ in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 wherein it was stated [at par 136] that the balance of probabilities test requires a court to reach a level of actual persuasion. It is insufficient to establish a mere possibility (see Seltsam par 79-83; Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720 at 724 Mason J)
Where causation arises in the context of an omission Gaudron J in Bennett v Minister of Community Welfare (1992) 176 CLR 408 at 422‑443 stated as follows:
"Where questions of causation depend on hypothetical considerations, allowance should be made, as in the assessment of damages, for the possibility that some event would not have occurred. The possibilities, if they are not fanciful, must be taken into account, at least in a general way, whenever causation or the related issue of prevention is in issue. But questions of that kind are not answered 'maybe' or, even, 'more probably than not'. They are answered 'yes' or 'no' depending on the probabilities for or against. In this respect, they are indistinguishable from the question whether an event happened where possibilities are taken into account but, once the question has been answered, those possibilities have no further bearing on the matter."

Central issues

In light of the factual findings I have made earlier in this decision and the legal principles stated, I conclude that the central issues of this trial can be expressed as follows (although later in the judgment for completeness sake I will deal with each separate allegation of negligence pleaded by the plaintiff):
(a)Was the defendant in breach of its duty of care by not applying a CTG monitor prior to and during the epidural and caudal block procedures?
(b)If the midwives had applied CTG monitoring before the epidural would the midwives have observed non‑reassuring signs of the heartbeat of the foetus?
(c)If non-reassuring signs had been obtained before the epidural what remedial procedures could have been undertaken and would they have removed or reduced the damages suffered by the infant plaintiff

(a) Was the defendant in breach of its duty of care by not applying a CTG monitor prior to and during the epidural and caudal block procedures?

Critical to answering this question is to assess the clinical circumstances that existed prior to and during the epidural. Regrettably, the clinical situation is somewhat clouded by the lack of memory from the medical and midwifery staff of the defendant as to Michael's birth.
From the evidence, I conclude the defendant was not in breach of its duty of care by its staff failing to apply a CTG monitor prior to Ms Hoang being taken to the delivery room. I find it was not unreasonable for Ms Frencham to wait until Dr Leung had examined Ms Hoang and confirmed that the foetus was in a breeched position before applying a CTG. Almost immediately after Dr Leung had completed his examination Ms Hoang complained of being wet and I conclude this prompted Ms Frencham to undertake a vaginal examination. During the course of this vaginal examination Ms Frencham ascertained that Ms Hoang had rapidly progressed from 4 centimetres dilated to 8 centimetres dilated. I find Ms Frencham rightly concluded that the birth of the baby was imminent. Dr Leung in his evidence stated that, at the point where Ms Hoang had reached 8 centimetres dilation, he would normally expect she would reach full dilation within 30 minutes. His opinion is consistent with what in fact occurred because when he examined Ms Hoang at 00.40 hours she was fully dilated.
I am satisfied that on completing the vaginal examination Ms Frencham immediately arranged to move Ms Hoang to a delivery room. Accordingly, from the time of completion by Dr Leung of his examination until delivery of Ms Hoang to the delivery room there had been no practicable opportunity to apply a CTG.
I find that on arrival at the delivery room Dr Crocker was available to administer an epidural. A decision then had to be made as to whether a CTG monitor was applied and monitoring take place prior to performance of the epidural. I find that to apply a CTG in the usual way by straps and effectively monitor the foetal heartbeat would have delayed the epidural by 10‑15 minutes. This takes into account the time necessary to affix and remove the CTG straps around the abdomen of the patient and the time taken to obtain the readings. According to the evidence of Professor Colditz it may take 5 to 10 minutes of monitoring in order to detect decreases in the variations of the foetal heartbeat. Ms Laird gave evidence that the transducers could be applied manually by being held on to the woman's abdomen by the midwife. However, even if this procedure was followed instead of using the straps there would still be a delay to proceeding with the epidural for 5 to 10 minutes while the foetal heartbeat was being monitored.
The clinical situation must be appreciated. Ms Hoang stated in her evidence that she was experiencing an increase in pain. Her resultant distress is confirmed by the entry in the partogram. Also at that time all foetal heart rate monitoring by auscultation had indicated the foetal heart rate was within normal limits. The most recent reading had been obtained immediately before Ms Hoang had been moved to the delivery room as a part of the vaginal examination conducted by Ms Frencham.
Dr Umstad's evidence I believe is particularly important. As quoted earlier in this decision he stated that where you have a multiparous patient (that is, a patient who has previously had babies) who is progressing very rapidly to birth the decision often would be made not to apply electronic monitoring but to listen to the foetal heart rate by auscultation only, proceed with the epidural and then put the CTG monitor on afterwards.
Professor Chapman who was called by the plaintiff, was not directed to the issue of whether CTG monitoring as prescribed by the Protocol and Guideline documents might reasonably be dispensed with in the case of a rapidly progressing labour such as that being experienced by Ms Hoang.
I conclude that in this case the midwife and medical staff were not negligent in postponing the application of the CTG until after the epidural. I am satisfied that given the rapid progression of the labour of Ms Hoang, the pain Ms Hoang was experiencing and the immediacy of delivery that it was reasonable for them to depart from the Protocol and Guideline documents (insofar as they suggested CTG monitoring should occur prior to the epidural) and place priority on completing the epidural procedure.
Further, I conclude it was reasonable for the defendant's staff not to manually apply the CTG monitoring once the epidural procedure commenced. The evidence of Mrs Laird stated that as the epidural performed on Ms Hoang was whilst she was in a lying position (as opposed to being seated) then her knees would be bent up in front of her abdomen which would prevent the foetal heart rate transducer being applied to the abdomen manually. The evidence of both Dr Crocker and Dr Umstad was that normally it was not practicable to manually apply a CTG monitor during the epidural [although Dr Crocker acknowledged that on occasions it did occur on specific instructions from an obstetrician].
The plaintiffs in closing submissions contended the defendant had not established that the protocols or guidelines were impossible to implement. However, the issue is not whether it was impossible to comply with the Protocols and Guidelines but whether it was reasonable not to comply with them given the clinical circumstances at the time. As stated above, I conclude it was reasonable to depart from the Protocols and Guidelines given the clinical circumstance at the time. Further, the plaintiffs contend that there was no evidence that a clinical decision was made to depart from the Protocols and Guidelines. Although there is no direct evidence that a decision was made to depart from the Protocols and Guidelines, I infer from the clinical circumstances at the time and what occurred that such a decision was made.

(b) If the midwives had applied CTG monitoring before the epidural would the midwives have observed non‑reassuring signs of the heartbeat of the foetus?

I accept the evidence of Professor Colditz of the relationship between the base excess reading and the build up of acid in the blood. Further I accept his evidence that acidosis leads to an interference with the function of the heart of a foetus. I further accept his evidence that when there is no oxygen delivered to the foetus (either by occlusion of the umbilical cord or other causes), the base excess will accumulate in the order of one mmol/litre per minute. Although this formula is based upon animal experiments, Professor Colditz maintained it was a reasonable guide as to the rate of build of base excess in a human foetus. Professor Bennett in his evidence acknowledged these calculations were generally accepted as applicable to humans. Dr Umstad in his report dated 15 March 2002 supported the conclusions of Professor Colditz.
Based upon a total occlusion (that is, a situation where the maximum build up of negative base excess will occur), Professor Colditz concluded the base excess reading of -27 would take 20 to 30 minutes to develop (this is on the basis that the negative base excess would build up at the rate of 1 mmol/litre per minute). Professor Colditz's evidence is that about halfway to the -27 base excess reading (when the reading is about -13.5) non-reassuring signs would appear on a CTG monitor. Although Professor Colditz in cross‑examination conceded the foetus may have developed a base excess at about -12 without developing problems with foetal heart rate, I accept his evidence that when the base excess reached approximately -13.5 that it is likely some non‑reassuring signs would have appeared. Accordingly, based upon a maximal build up of 1 mmol/litre per minute the non‑reassuring signs would have appeared in this case at approximately 00.33 hours. This would mean that if a CTG monitor had been applied prior to the epidural procedure at 00.15 hours or even during the epidural procedure, it is unlikely any non‑reassuring signs would have been observed.
The evidence of Professor Colditz was that he concluded there was not a total occlusion as there was no evidence of the usual causes of a total occlusion, that is, placental abruption, uterine rupture or cord prolapse. This conclusion was supported by Professor Bennett in his evidence. Professor Colditz in his report of 3 February 2003 concluded the acidosis build‑up was likely to have occurred over "an hour or so" (my emphasis) as opposed to 20 to 30 minutes which would have been the period of the acidosis build‑up in the case of a total occlusion. It is upon this evidence of Professor Colditz that the plaintiffs base their claim that if CTG monitoring had been conducted before or during the epidural procedure, non‑reassuring signs would have been observed. If the build‑up of acidosis was over an hour then non-reassuring signs would have appeared at 30 minutes before birth (that is, at approximately 00.17 hours). This approximates to the time at which the epidural procedure commenced.
However, I conclude it is pure speculation as to when the acidosis build‑up commenced and at what stage non‑reassuring signs would have appeared. This was partly acknowledged by Professor Colditz in his report dated 3 February 2003 in relation to the issue of when acidosis commenced by stating "there is no way of knowing whether these events occurred in this case". He also acknowledged in the same report that the cause of the hypoxic event was unknown. He also acknowledged in cross-examination he believed some occlusion of the umbilical cord had occurred and agreed this may have been substantial. In my opinion, without knowing what the hypoxic event was and the extent to which it may have created a partial occlusion, it is not possible to reach a conclusion on the balance of probabilities as to what rate of build‑up of negative base excess occurred in this case and when non reassuring signs would have been evident. This conclusion is supported by Professor Bennett in his report dated 3 November 2005 wherein he stated the length of the period of acidaemia build up was "mere conjecture". The conclusion is further supported by the report of Professor Chapman dated 13 August 1996 wherein he stated that the length of the period of bradycardia was impossible to predict (and therefore logically the period of base excess build‑up). If the build‑up of negative base excess was half the maximal rate (that is, 0.5 mmol/litre per minute) then the opinion of Professor Colditz as to when non‑reassuring signs would be present is approximately correct. However, if the rate of build‑up of negative base excess was greater than 0.5 mmol/litre per minute, it is not clear when the non‑reassuring signs would have been evident.

Accordingly, I am not satisfied that if a CTG monitor was applied prior to or during the epidural procedure it was likely non-reassuring signs would have been detected.

(c) If non-reassuring signs had been obtained before the epidural what remedial procedures could have been undertaken and would they have removed or reduced the damages suffered by the infant plaintiff?

The evidence of Dr Umstad was that it takes approximately 5 minutes to attach the CTG monitoring to the patient and another 5 minutes to obtain a worthwhile reading from the CTG monitor. This is consistent with Professor Colditz's evidence that it normally takes 5 to 10 minutes to obtain a helpful reading from a CTG monitor. Accordingly even if the process of applying a CTG monitor was commenced precisely at 00.15 hours, the earliest that a CTG reading of non‑reassuring signs would have practicably been obtained was approximately 00.30 hours. Accordingly, the earliest point in time remedial procedure could have been undertaken would have been at approximately 00.30 hours. The first procedure that was likely to be pursued was intrauterine resuscitation. Professor Chapman in his evidence stated that in most cases this resolved any problems. However, in this case we have no evidence as to the cause of the hypoxia. Although Professor Bennett and Dr Umstad acknowledged in their evidence that the longer the foetus is hypoxic, the less it is responsive to intrauterine resuscitation procedures, no direct evidence was given that if resuscitation proceedings had been implemented at approximately 00.30 hours that it is likely that the foetus would have responded and not suffered injuries to the extent it did. In any event, in this case the midwives attempted intrauterine resuscitation at 00.35 hours (which approximates the time when the earliest remedial procedures could have been initiated) without success. The evidence of Professor Bennett is that even if such procedures had been administered earlier he did not think anything different would have occurred. Although this was a generalised comment in his evidence, it is supportive of conclusion that even if intrauterine procedures had been commenced at approximately 00.30 hours it would not have changed the result. Accordingly, I find that even if CTG monitoring had been applied immediately before and/or during the epidural and non reassuring signs detected, an immediate application of intrauterine resuscitation would not have prevented or reduced the damage suffered by Michael.
The plaintiffs have also submitted that a caesarean birth could have been performed and that would have reduced the length of the hypoxia and reduced Michael's injuries. However, Dr Umstad's evidence is that an emergency caesarean section cannot be prepared under 10 minutes. Evidence was produced of a survey of how long a caesarean takes in hospitals such as King Edward Memorial Hospital and the mean time is 15 minutes with the best result at 8 minutes. Based upon this evidence I conclude on the balance of probabilities that it would take 10 to 15 minutes to perform the caesarean operation.
If non‑reassuring signs had been detected at approximately 00.30 hours, then before a caesarean could be performed the following further delays could be expected:
(i)the registrar called and responded to the call by attending the delivery room;
(ii)an examination by the registrar of the CTG printout confirming the non‑reassuring signs;
(iii)a decision involving the patient and perhaps an on‑call obstetrician as to whether an emergency caesarean should be performed; and
(iv)the application of a general anaesthetic.
All of these preliminary procedures would have extended the time taken to perform a caesarean beyond the optimal time of approximately 10 minutes.
Given the fact that Ms Hoang was fully dilated at 00.40 hours, I conclude that it is unlikely that performance of caesarean would have taken place or if it had occurred would have been able to achieve a delivery earlier than in fact occurred at 00.47 hours. This conclusion is supported by the evidence of Professor Bennett and Dr Umstad.
It was also submitted by the plaintiffs that the birth could have been expedited by an extracted vaginal delivery. Given my finding the earliest the midwife would have been aware of the non‑reassuring signs was approximately 00.30 hours if a CTG had been applied prior to the epidural, and given the delay that would have occurred in administering the epidural and possibly a caudal block, I am not satisfied that an extracted vaginal delivery would have led to an earlier delivery. Dr Umstad, whose evidence I prefer to Professor Bennett on this point, expressed the opinion that an extracted vaginal delivery of a breech baby would not have been undertaken due to the dangers involved. He gave a detailed explanation for this evidence which was to the effect that there would be a potential danger to the foetus as a result of hyper‑extension of the head of the foetus. In any event I am not satisfied that even if an extracted vaginal delivery was performed it necessarily would have produced an earlier delivery. Although Professor Bennett stated that the general belief was that a baby could be delivered earlier by extracted vaginal delivery than by natural vaginal delivery, he stated that a mother who had previously given birth to other children could probably push the baby out quicker than the baby could be extracted.
Accordingly, even if the CTG had been undertaken immediately before and/or during the epidural which revealed non‑reassuring signs, I am not satisfied that the defendants could have undertaken procedures which could have expedited the delivery of the foetus and thus prevented or shortened the hypoxia suffered by the foetus prior to delivery.

Pleaded particulars of negligence

The plaintiff has pleaded 10 separate grounds of negligence. I will briefly deal with each of these pleaded grounds, although I have earlier in this decision identified what I believed to be the central issues in this matter and made my findings in relation to those central issues.

Paragraphs 8(b) and (f);

"(b) failed to vigilantly observe/monitor the second Plaintiff after the failed ECV at 37 weeks; (at trial amended to not include the period prior to 22.00 hours on 16 January 1991);
(f) failed to assess and monitor the Second Plaintiff and the First Plaintiff immediately after her attending KEMH at about 10.00 p.m. on 16 January 1991."

These pleaded alleged grounds of negligence are of a similar nature. The grounds complain that Ms Hoang and her foetus were not adequately observed, assessed and monitored from 10.00 pm on 16 January 1991. Both grounds implicitly are based on the evidence of Ms Hoang as to the time of her arrival as at approximately 22.00 hours on 16 January 1991. However, I have found earlier in this decision that Ms Hoang arrived at approximately 22.56 hours.
In support of these grounds, the plaintiffs rely upon the 1988 Protocols and 1991 Guidelines, wherein a minimum standard is stipulated of auscultating every 15 minutes and, in the case of a breach presentation, intensive foetal monitoring by CTG. However, I conclude for reasons set out earlier in this decision that the defendant was not negligent in failing to apply a CTG prior to and during the epidural but even if it was, I am not satisfied it would have lead to a different outcome.
I find that Mrs Laird did not auscultate Ms Hoang immediately prior to the epidural proceeding as this is not recorded anywhere in the defendant's records as having occurred. I am satisfied that this should have been done. This is confirmed by the evidence of Dr Umstad that auscultation should occur immediately before an epidural where there has been no CTG monitoring.
However, even if Mrs Laird had auscultated just prior to the epidural, I conclude from Professor Colditz's evidence and Professor Bennett's evidence that non reassuring signs in the form of reduction in variations would not have been detected but possibly type 2 decelerations could be detected. For the reasons given earlier, I am not satisfied that any non reassuring signs in the form of type 2 decelerations would have been present at the commencement of the epidural. Further, there is no evidence suggesting bradycardia would have been detected. Professor Bennett in his report dated 3 November 2005 stated that in his opinion the reason why bradycardia was not detected earlier than 00.30 hours was because it was not present to be detected. Further, the auscultation conducted during the vaginal examination by Ms Frencham and the auscultation at 00.30 hours did not indicate any non reassuring signs and this suggests a similar result would have been obtained immediately prior to the epidural.
Based upon the above I conclude that the grounds of negligence pleaded in par 8(b) and (f) of the statement of claim have not been established.

Ground (g):

"Failed to have the second plaintiff assessed by a Registrar or obstetrician earlier than 11.10 pm on 16 January 1991."

There has been no evidence presented which supports this alleged ground of negligence. Although Professor Chapman had been critical in his report on 7 May 1996 as to a delay in calling a registrar after bradycardia had been observed (a contention I found was based upon the incorrect assumption that bradycardia was observed at 00.15 hours), he made no criticism of Dr Leung not assessing Ms Hoang prior to 11.10 hours on 16 January 1991. Again this pleaded ground of negligence appears to be based upon evidence of Ms Hoang that she was waiting at the hospital for approximately one hour before being assessed in the assessment room by the midwife. Further, I conclude that even if the registrar had examined Ms Hoang earlier it would not have led to any difference in the treatment of Ms Hoang which would have made a difference to the outcome. The plaintiffs' counsel submitted that if Dr Leung had examined Ms Hoang earlier and ordered continuous electronic monitoring then this would have enabled electronic monitoring to be implemented some time prior to the performance of an epidural. However, for reasons set out earlier I conclude that even if a CTG had been applied earlier that I am not satisfied that it would have indicated any non-reassuring signs so as to cause the staff to earlier undertake intrauterine resuscitation procedures or expedite the delivery of the baby.

Paragraph 8(i):

"In the knowledge that the first plaintiff was in a breech position and had a persistent foetal bradycardia at 12.15 am (approximately) on 17 January 1991, failed to expedite the first plaintiff's delivery."

This ground of negligence is based upon a persistent foetal bradycardia being present at 12.15 am. For reasons I have previously stated, I concluded there is insufficient evidence for me to conclude that persistent foetal bradycardia existed at 12.15 am and accordingly I find this ground of negligence has not been established.

Paragraph 8(j):

"Failed to implement Dr Leung's direction for continuing monitoring of the first plaintiff's foetal heart rate."

I have earlier found in this decision that the midwives were not negligent in failing to apply continual electronic monitoring prior to the epidural and, accordingly I find that this ground of negligence has not been established.

Paragraph 8(k) and (k):

"(k) In the absence of the continual foetal heart rate monitoring directed by Dr Leung, failed to carry out more frequent heart rate checks between 11.40 pm and the time of delivery;
(k) failed to detect the presence of foetal bradycardia before 12.15 am on 17 January 1991."

Putting aside the issue of CTG monitoring, Professor Bennett's evidence was that the level of heartbeat monitoring was within acceptable limits. This evidence was not contradicted by any other expert evidence except on the issue of whether Mrs Laird ought to have conducted auscultation immediately before the epidural. My finding above is that she ought to have but I am not satisfied that it would have made any difference to the outcome. Otherwise I find that the level of monitoring was adequate.

Paragraphs (l):

"Failed to ensure that a registrar or obstetrician was available on short notice to deliver the first plaintiff in the event that foetal bradycardia was detected by the foetal heart rate monitoring."

I find that there is insufficient evidence to establish this ground of negligence. Based upon my earlier findings, when bradycardia was first detected at approximately 00.35 hours, the registrar (Dr Leung) was available at short notice and attended by 00.40 hours. Further, there is no evidence to suggest that if bradycardia was observed earlier that Dr Leung would not have been available.

Paragraph 8(m):

"Failed to promptly respond to Nurse Laird's request for a registrar to deliver the first plaintiff."

On the basis of my finding that Nurse Laird made a request at approximately 00.35 hours for the registrar to attend and Dr Lueng attended promptly at 00.40 hours, this alleged ground of negligence has not been proved.

Paragraph 8(o):

"Discontinued the foetal heart monitoring between 12.05 am and about 12.15 am when such monitoring was of critical importance at the time."

Essentially this ground is that CTG monitoring ought to have been conducted prior to the epidural. Again I refer to my earlier findings that I do not believe that the defendant was negligent in failing to apply CTG monitoring prior to the epidural given the immediacy of the expected birth of Michael.
Further, I have already dealt with the submission that in the absence of continual heart rate monitoring (CTG monitoring), the frequency of foetal heart rate checks was adequate. In any event, even if more frequent foetal heart rate checks had been conducted I am not satisfied they would have revealed bradycardia or non-reassuring signs and therefore they would not have lead to a different result.
Accordingly, this ground of negligence is not established.

Conclusions

On the basis of my above findings I conclude that the defendant is not liable for the injuries suffered by Michael and accordingly I dismiss the plaintiffs' claim.

Time	Rate (beats per minute)
23.10 hours	144
23.40 hours	130
00.00 hours	140
00.30 hours	130
00.35 hours	60-65