Lisa Mary Jarvinen by her Next Friend Genevieve Mary Jarvinen v Metropolitan Health Service Board - [2001] WADC 149

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: LISA MARY JARVINEN by her Next Friend GENEVIEVE MARY JARVINEN & ANOR -v- METROPOLITAN HEALTH SERVICE BOARD & ORS [2001] WADC 149

CORAM: GROVES DCJ

HEARD: 6-8, 18-22, 25-26 SEPTEMBER 2000 & 3-6 OCTOBER 2000

DELIVERED : 22 JUNE 2001

FILE NO/S: CIV 8681 of 1987

BETWEEN: LISA MARY JARVINEN by her Next Friend GENEVIEVE MARY JARVINEN
First Plaintiff
GENEVIEVE MARY JARVINEN
Second Plaintiff
AND
METROPOLITAN HEALTH SERVICE BOARD
First Defendant
KANDIAH VELUPPILLAI SRITHARAN
Second Defendant
ROBIN JOHN COOPER
Third Defendant

Catchwords:

Negligence - Personal injury at birth - Prolapsed umbilical cord detected in second stage of labour - Allegation of failure of Level 1 hospital to have medical practitioner at hospital to deal with emergency - Allegation of delay in doctor responding to emergency - Allegation of failure to take preventative measures to reduce risk of harm - Cerebral palsy due to birth asphyxia

Legislation:

Nil

Result:

Action dismissed

Representation:

Counsel:

First Plaintiff                :     Mr E M Heenan QC and Mr B G Bradley
Second Plaintiff            :     Mr E M Heenan and Mr B G Bradley
First Defendant             :     Mr W S Martin QC and Mr P D Quinlan
Second Defendant         :     Mr R Gillies QC and Mr T Lampropoulos
Third Defendant           :     Mr R Gillies QC and Mr T Lampropoulos

Solicitors:

First Plaintiff                :     Moss Bradley
Second Plaintiff            :     Moss Bradley
First Defendant             :     State Crown Solicitor
Second Defendant         :     Blake Dawson Waldron
Third Defendant           :     Blake Dawson Waldron

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

Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542
Bennett v Ministry of Community Welfare (1992) 176 CLR 408
Board of Management of Royal Perth Hospital v Frost, unreported; SCt of WA; Library No 970069; 26 February 1997
Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520
Chappel v Hart (1998) 195 CLR 232
Elliott v Bickerstaff (1999) 48 NSWLR 214
Ellis v Wallsend District Hospital (1989) 17 NSWLR 553
Kondis v State Transport Authority (1984) 154 CLR 672
Naxakis v Western General Hospital (1999) 197 CLR 269
Northern Sand Blasting Pty Ltd v Harris (1997) 188 CLR 313
P Q v Australian Red Cross [1992] 1 VR 19
Roe v Minister for Health [1954] 2 QB 66
Rogers v Whittaker (1992) 175 CLR 479
Wyong Shire Council v Shirt (1980) 146 CLR
Yepremian v Scarborough General Hospital (1980) 110 DLR (3d) 513

Case(s) also cited:

Bennett v Minister for Community Welfare (1972) 176 CLR 408
Breen v Williams (1996) 186 CLR 21
Dulieu v White [1901] 2 KB 669
Duval v Seguin (1973) 40 DLR (3d) (Ont CA)
Edward Wong Finance Co Ltd v Johnson Stokes Master [1984] AC 296
Gover v South Australia (1985) 39 SASR 543
H v Royal Alexandra Hospital for Children (1990) A Tort Rep 67,503 (81-000)
Hughes v Lord Advocate [1963] AC 837
Jolley v Sutton London Borough Council [2000] 3 All ER 409
Kirkham v Boughey [1958] 2 QB 338
March v Stramare Pty ltd (1991) 171 CLR 506
Murphy v R (1989) 167 CLR 94
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 170 ALJR
P Q v Australian Red Cross [1992] 1 VR 19
Purkess v Crittenden (1965) 114 CLR 164
R v Bateman (1925) 94 LJKB 791
Ren & Anor v Mukerjee & Anor, unreported; SCt of ACT; 16 April 1997 (Miles CJ)
The Wagon Mound (No 1) [1961] AC 388
The Wagon Mound (No 2) [1967] 1 AC 617
Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720
ULV Pty Ltd v Scott (1990) 19 NSWLR 190
Watt v Rama [1972] VR 353
Watts v Rake (1960) 180 CLR 158
Wilsher v Essex Area Health Authority [1987] QB 730
X v Pal (1991) 23 NSWLR 26

TABLE OF CONTENTS

Introduction............................................................................................................................. 5
Allegations of negligence against the Hospital....................................................................... 6
Allegation of negligence against Dr Sritharan........................................................................ 7
Allegations of negligence against Dr Cooper......................................................................... 8
The issues for determination................................................................................................... 9
The Hospital's records........................................................................................................... 10
Witness evidence of events pre and post delivery................................................................ 13
The failure to record information.......................................................................................... 34
The pleadings to trial............................................................................................................. 35
Considerations relevant to credibility of Mr and Mrs Jarvinen............................................ 40
Conclusion on credibility of Mr and Mrs Jarvinen's evidence.............................................. 45
The obligation of Dr Sritharan to monitor and/or attend upon patient................................. 46
The issue of delay.................................................................................................................. 51
The time from discovery of the prolapsed cord to time when Dr Sritharan was telephoned 51
The time from when Dr Sritharan was informed of the cord prolapse to the time when Dr Cooper left the clinic for the hospital............................................................................................................. 55
Time taken by Dr Cooper in travelling from the clinic to arrival at the Hospital................. 56
Time taken from arrival by Dr Cooper at bedside to the time of delivery............................ 56
Delay ‑ conclusions............................................................................................................... 57
Failure to manage the emergency ‑ interim measures ("first aid")....................................... 57
Position the second plaintiff so as to minimise the effects of the prolapse of the cord........ 59
Take any steps to protect the cord from the adverse effects of temperature, shock and compression 61
Determine the extent of occlusion of the cord and restriction of foetal blood supply by feeling the pulsation of the cord.............................................................................................................................. 63
Monitor the foetal heart rate continuously or at all............................................................... 63
Administer oxygen to the second plaintiff............................................................................ 67
Apply pressure to the descending head of the first plaintiff in order to decrease compression of the cord............................................................................................................................................... 71
Interim measures ‑ conclusions............................................................................................. 72
Duty of care owed by the Hospital........................................................................................ 72
Failure of the Hospital to provide 24 hour emergency obstetric cover................................. 75
Causation............................................................................................................................... 81
Conclusions........................................................................................................................... 87

GROVES DCJ: Lisa Mary Jarvinen (Lisa), the first plaintiff was born on 22 October 1984 at the Armadale Kelmscott Memorial Hospital (the Hospital). At birth Lisa was clinically dead. She was revived but has always been severely disabled. She is now 16 years of age. Her growth is that of a 10 year old but she presents as a child of 18‑24 months of age. She has cerebral palsy. Her development is profoundly delayed and she is unable to do anything physical. She weighs a mere 13 kg. She cannot speak, requires assistance in every function and constant nursing care.
Genevieve Mary Jarvinen (Mrs Jarvinen) is Lisa's mother and is the second plaintiff. She was born on 6 February 1962. Upon completion of her schooling she worked as a shop assistant in Kelmscott. On 5 September 1981 she married Edward Jarvinen (Mr Jarvinen). She was 22 years of age when Lisa was born. This was her first pregnancy.
At the time of Lisa's birth the Minister for Health for the State of Western Australia was the Administrator of the Hospital. As a consequence of legislative changes The Metropolitan Health Services Board (the Board), at the time of trial, was the Administrator of the Hospital. The Board assumed the responsibilities and liabilities previously reposed in the Minister. The Hospital provided a maternity and delivery facility and employee nursing staff. The Hospital is the first defendant.
Kandiah Veluppillai Sritharan (Dr Sritharan), the second defendant, and Robin John Cooper (Dr Cooper), the third defendant, together with a Dr La Grange at the relevant time in 1984 practised together as the Kelvale Medical Group at 53 Railway Avenue in Kelmscott.
Lisa sues each of the defendants for damages alleging that it was by reason of their negligence that she suffered birth asphyxia leading to brain damage which required resuscitation, admission to hospital and continuing treatment and thereby suffered loss and damage, loss of enjoyment and of the amenities of life and required and will continue to require special nursing, training, educational, medical, physiotherapy, pharmaceutical and domestic services. Mrs Jarvinen sues each of the defendants for damages alleging that by reason of their negligence she endured undue pain and suffering, nervous shock, loss and expense. Each of the defendants deny that they were negligent as alleged or at all.

Allegations of negligence against the Hospital

In par 13 of the statement of claim it is alleged that the Hospital, its employees, servants or agents were negligent in the following respects:
(a)Being a major suburban maternity hospital failed to ensure that a duly qualified medical practitioner was available on short notice to deal with medical emergencies such as the emergency resulting from the prolapse of an umbilical cord;
(b)Failed to advise Mrs Jarvinen that should a medical emergency arise a duly qualified medical practitioner may not be available in time to deal with such emergency;
(c)Unduly delayed summoning Dr Sritharan, Dr Cooper and any other duly qualified medical practitioner to deal with the emergency resulting from the prolapse of the umbilical cord;
(d)Delayed summoning or advising Mrs Jarvinen's or any doctor to attend to deliver Lisa until she had suffered irreversible brain damage;
(e)Failed to provide or have on immediate call any duly qualified medical practitioners experienced in obstetrics and able to take over the delivery or alternatively conduct an immediate caesarean section extraction;
(f)Failing to manage or adequately manage the emergency which had arisen by reason of the prolapse of the umbilical cord pending the arrival of a medical practitioner able to effect rapid delivery especially by failing to:
(i)position Mrs Jarvinen so as to minimise the effects of the prolapse of the cord;
(ii)take any steps to protect the cord from the adverse effects of temperature, shock or compression;
(iii)determine the extent of occlusion of the cord and restriction of foetal blood supply by feeling the pulsation of the cord or otherwise;
(iv)monitor the foetal heart rate continuously or at all;
(v)administer oxygen to Mrs Jarvinen;
(vi)apply pressure to the descending head of Lisa in order to decrease compression of the cord.

Allegation of negligence against Dr Sritharan

In par 14 of the statement of claim it is alleged that Dr Sritharan was negligent in the following respects:
(a)Failing to monitor or to adequately monitor Lisa's physical condition after rupture of the membranes;
(b)Having undertaken the management of Lisa's labour failed to make himself immediately available to assist Lisa in the event of a medical emergency such as a prolapse of the umbilical cord;
(c)Absented himself from the Hospital whilst Lisa was in an advanced stage of labour and at a time when there was a well recognised risk of medical emergency;
(d)On being notified by the Hospital of the emergency resulting from the prolapse of the umbilical cord failed to attend immediately at the Hospital to assist with the delivery of Lisa and to deal with the resultant emergency;
(e)On being notified by the Hospital of the medical emergency resulting from the prolapse of the umbilical cord unduly delayed requesting Dr Cooper to attend at the Hospital to deal with the resultant emergency;
(f)On being notified by the Hospital of the medical emergency resulting from the prolapse of the umbilical cord failing to give instructions to the midwives or nursing staff at the Hospital to:
(i)position Mrs Jarvinen so as to minimise the effects of the prolapse of the cord;
(ii)take any steps to protect the cord from the adverse effects of temperature, shock or compression;
(iii)determine the extent of occlusion of the cord and restriction of foetal blood supply by feeling the pulsation of the cord or otherwise;
(iv)monitor the foetal heart rate continuously or at all;
(v)administer oxygen to Mrs Jarvinen;
(vi)apply pressure to the descending head of Lisa in order to decrease compression of the cord.

Allegations of negligence against Dr Cooper

In par 15 of the statement of claim it is alleged that Dr Cooper was negligent in the following respects:
(a)Failing to attend at the Hospital in response to the Hospital's request prior to about 1640 hours on 22 October 1984;
(b)Failing to deliver Lisa earlier than about 1645 hours on 22 October 1984;
(c)On being requested by Dr Sritharan to deal with the medical emergency resulting from the prolapse of the umbilical cord unduly delayed his attendance at the Hospital to deal with such emergency;
(d)On being notified by the Hospital of the medical emergency resulting from the prolapse of the umbilical cord failing to give instructions to the midwives or nursing staff at the hospital to:
(i)position Mrs Jarvinen so as to minimise the effects of the prolapse of the cord;
(ii)take any steps to protect the cord from the adverse effects of temperature, shock or compression;
(iii)determine the extent of occlusion of the cord and restriction of foetal blood supply by feeling the pulsation of the cord or otherwise;
(iv)monitor the foetal heart rate continuously or at all;
(v)administer oxygen to Mrs Jarvinen;
(vi)apply pressure to the descending head of Lisa in order to decrease compression of the cord.

The issues for determination

The case involves a number of difficult issues of fact. Some of these difficulties arise from the need to establish with precision what it was that occurred over 16 years ago in the period of about 45 minutes before Lisa's birth. The Hospital records were made contemporaneously with the events of the day in question and are likely to be accurate. Whilst plaintiffs' counsel was critical of those records for what they did not contain they might nevertheless be accepted as accurate insofar as that which they do contain. The recollections of all witnesses who were involved in the events of the day are impaired by reason of the passage of time. Those who have given evidence have had access to the Hospital records. Having seen and heard the witnesses as to the events I have concluded that none of them has a completely independent recollection of matters which are or may be crucial and that all witnesses as to the events have to some extent reconstructed the events in their minds. Similarly some witnesses supplemented their recollection by reference to what they now say they would have done at the time by reason of their usual or routine practices in doing certain things at that time or in their working experience subsequently.
The issues and the order in which I propose to ultimately address them are:
1.The obligation of Dr Sritharan to monitor and/or attend upon the patient.
2.The issue of delay.
(a)The time from discovery of the prolapsed cord to time when Dr Sritharan telephoned.
(b)The time from when Dr Sritharan was informed to the time when Dr Cooper left the clinic.
(c)The time taken by Dr Cooper in travelling from the clinic to arrival at the Hospital; and
(d)The time taken from arrival by Dr Cooper at bedside to the time of delivery.
3.Failure to manage the emergency ("first aid") issues.
4.Duty of care owed by the Hospital.
5.Failure of the Hospital to provide 24 hour emergency obstetric cover.
6.Causation.

The Hospital's records

The Hospital's Progress Notes and the Labour Record (the partogram) are the only relevant contemporaneous documents (other than Dr Thurley's notes to which reference is made later) which record progress of Mrs Jarvinen's labour and the birth of Lisa. To the extent necessary and relevant I will detail the information contained in the Progress Notes and partogram. Their significance will become apparent as I thereafter proceed to deal with the evidence.
Mrs Jarvinen was admitted to the hospital at 0400 on 22 October 1984. The reason for admission is given as "Early labour since 2300 hours 21.10.84." Mrs Jarvinen was at full term. Her temperature, pulse and blood pressure were taken, abdominal palpitation and vaginal examination (VE) undertaken by nurse M Doherty. Contractions are recorded as of moderate strength every 4‑5 minutes of 40 seconds duration. The foetal heart (FH) rate is recorded in one place at 140R and S (regular and strong) and in another place at 150. In the Progress Notes the following is written:
"Admitted in early labour, with history of regular contractions since 2300 hrs 21.10.84. Membranes intact. FHHR. Large baby. R.O.P engaged. CLW chart. Progressing well in labour. Dr La Grange informed but will be away. Dr Sri informed of patient's admission. Coping well. M Doherty R.N."
The partogram records hourly monitoring of her progress through to 0800. At that time it is noted "Backache present. Hot pack given (with) effect." At 0830 it is noted "Seen by Dr Sri. Will review at 1000. Patient gone for walk in hospital grounds." At this time the Progress Notes record "0830 Dr La Grange wishes Dr Sri to handle labour and delivery." At 1000 and 1030 progress was monitored and the results recorded in the partogram. At 1030 it is noted "Resting well. Backache less troublesome. Gone for walk in grounds. Dr Sri will review 1230". Again at 1230 her progress was monitored and recorded. At 1400 Dr Sritharan attended Mrs Jarvinen and recorded on the Partogram "VE done: ARM. IV drip. CX thin 75% effaced. 6‑7 cm dilated. Hd above the spine 1 cm". (ARM means artificial rupture of the membrane; IV means intravenous; CX means cervix; Hd means head). The Progress Notes record the following:
"1400 seen by Dr Sri. ARM performed. Draining clear liquor. FH clear and regular. CX. 6‑7 cms dilated ‑ head 1 cm above spines. Progressing well in labour. M Cruickshank. R.N."
At 1400/1405 the partogram records "commenced IV infusion".
At 1500 the partogram records Mrs Jarvinen's pulse at 88 and blood pressure 110/60. Under a heading "Membranes" is noted "blood stain". Contractions are recorded as 1‑2 minutes of 60 second duration and strong. FH 152R (regular). At 1520 the partogram records FH as 130R and there is noted "Wanting to push ‑ V.E. ‑ Thick ANT(erior) lip CAPUT + +, (head above) spines (approximately) 0.5 cm."

At 1530 Mrs Jarvinen's blood pressure is recorded as 110/60, blood staining is noted, contractions every 2 minutes of 60‑90 seconds duration and strong, FH 120R (with) cont; 140 reg no cont (cont. meaning contractions).
At 1600 blood staining is recorded, contractions every 2 minutes of 90 second duration and strong, FH 144R and under the heading Urine noted "Unable to Void". Commencing on the 1600 line there is recorded
"V.E. ‑ CX fully dilated; commenced pushing.
Cord seen while pushing ‑ Dr contacted.
FHH reg; cord pushed up behind head,
NBFQ 1645 hrs.
1650 ‑ third stage completed.
2◦ tear sutured with 2/0 chromic."
On the lines of the partogram below the 1600 observations the following is written:
"Delivery 1645 hrs. O2/suction. Placenta delivered 1650.
Intubated, ‑ cardiac massage. Neonatal Flying Squad from PMH arrived.
Apgars ‑ 1= 0, 5 = 2, 10 = 2, 30 = 6.
1701 8.4. Soda Bic 5 mls ‑ response (with) heart beat.
1745 ‑ transferred to PMH, ‑"
Elsewhere on the reverse side of the partogram is the heading "Labour and Delivery Summary" under which is recorded the following:
"Onset of labour:              Spontaneous.
Analgesia:   N₂0 50%, 0₂ 50%.
Date and time of delivery:   22.10.84 1645 hrs.
Type of delivery:                 NBFQ:
Oxytocic drug:                   Syntrometrine 1 ml.
Placenta:  Slightly gritty, appears complete.
Membranes:  Slightly ragged.
Perineum:  Tear 2◦ sutured 2/0 chromic.
Estimated blood loss:         300 ml.
Duration of labour:
First stage: 12 hours.
Second stage: 45 mins.
Third stage: 5 mins.
Total duration: 12 hrs 50 mins.
Present at birth:
Accoucher: Dr Cooper
Sr J Adams
W Hollingsworth
A stamp making provision to record the baby's condition at birth at 1 and 5 minutes records the following:
Condition at birth    1 min         5 min
Colour0                2
Respiration            0                0
Reflex0                0
Muscle tone           0                0
Heat rate0                0
APGAR = total      0                2"
Beneath that is the midwife's signature "W Hollingsworth".
The Progress Notes in relation to these events records:
"1645 ‑ NBFQ for cord prolapse at full dilatation of CX. Apgars ‑ 0 at 1 min, 2 at 5 mins. Intubated, first breath at 1701 hrs. Apgars 30 mins 6 ‑ female transferred to PMH by Neonatal Flying Squad. Third stage complete. 2◦ tear sutured."

Witness evidence of events pre and post delivery

Mrs Jarvinen's family doctor was Dr La Grange at the Kelvale Medical Group and she attended on him regularly throughout her pregnancy. Morning sickness was her only complaint and her pregnancy was otherwise uneventful. There was never any concern about the baby at any time and she had at all times been in a state of well being prior to her labour commencing. Mr Jarvinen attended antenatal classes with her and they looked forward to the birth of their first child. Mrs Jarvinen discussed her confinement with Dr La Grange and it was arranged that she would be admitted as a private patient at the Hospital under the care of Dr La Grange who would attend her on confinement. She did not discuss with Dr La Grange or anybody at the Hospital what obstetric cover was provided at the Hospital. The due date was 22 October 1984. At an appointment about a week before the due date Dr La Grange advised her that he would be unavailable on that day due to him sitting a medical exam. There was no discussion as to what would occur if she had the baby on the due date and he was not available.
Mrs Jarvinen's contractions commenced at about 2225 hours on Sunday 21 October 1984. At about 0320 hours the next morning she felt it was time to go to the Hospital and Mr Jarvinen drove her there. After admission she was taken to a room in the birthing area. Mr Jarvinen remained with her throughout the whole of her labour and delivery. At about 0400 hours a nurse undertook a medical examination, taking her temperature, pulse and blood pressure, taking the foetal heart beat by placing what she described as a "cone like device" (a Pinard stethoscope) on her abdomen and listening to the heart beat and also undertook a vaginal examination. Everything was fine and her labour progressed normally with regular nursing checks on about the hour through to 0800 hours. At that time she was experiencing backache and was provided with a hot pack to ease the pain. At 0830 hours Dr Sritharan attended on her. She had previously seen him at the Kelvale Medical Group but not as a patient of his. It was her evidence that Dr Sritharan gave her no explanation as to why he was there although she was aware from her previous appointment with Dr La Grange that he would not be available. Nor, was there, so she said, mention of him returning later or being available if needed. Dr Sritharan checked her progress. Shortly afterwards she and Mr Jarvinen went for a walk in the hospital grounds. Her progress was monitored by nursing staff at 1000 and 1030 hours when her pulse was taken and they listened to the foetal heart beat with the Pinard. Mr and Mrs Jarvinen thereafter went for another walk in the hospital grounds.
At 1400 hours Dr Sritharan returned. He undertook a vaginal examination and informed her that he would do an ARM (artificial rupture of the membrane) to speed up the labour. She was moved into a labour ward, the ARM done and she was placed on an intravenous drip. There was nothing untoward resulting from this procedure. Again she said there was no explanation from Dr Sritharan as to whether he would return later and if so, when. A nurse indicated to her a gas mask beside the bed and told her that she could take gas from time to time to help ease the pain during her contractions. She used the gas with each contraction for up to 10 seconds at a time over a period of approximately one hour. The gas made her feel relaxed and occasionally light headed. As the time between contractions got shorter she experienced backache such that at 1530 hours Mr Jarvinen summonsed a nurse. The nurse checked the baby's heart beat and it was Mrs Jarvinen's evidence that she was informed by the nurse that "the baby was in distress" and told to lie on her right hand side and not to use the gas but rather to breathe through her contractions. The contractions were getting stronger and her husband called the nurse back in.
The nurse commenced a vaginal examination and whilst she was doing this she (Mrs Jarvinen) had a contraction. The nurse told her to commence pushing but suddenly told her in a firm manner to "stop pushing" and she was told to breathe through the contraction. The nurse did not say why she asked her to stop pushing. It was Mrs Jarvinen's evidence that there then seemed to be a "big panic". The nurse who had undertaken the examination pushed a buzzer to call another nurse who came in quickly. The nurses spoke to each other and the first nurse told the arriving nurse to call the doctor. The arriving nurse then left in what Mrs Jarvinen described as a panic in that she seemed to be rushing. Mrs Jarvinen detected a sense of urgency in the nurse's voices when they spoke. The first nurse stayed with her hand in the area of Mrs Jarvinen's vagina. The second nurse returned and Mrs Jarvinen heard instruments being readied. She was concentrating on her breathing and was not pushing. She was expecting a doctor to arrive. The first nurse told her not to take gas "because she needed me to concentrate". No foetal heart readings were taken. The last which she could recall had been taken a few minutes before the examining nurse called for assistance. She was on her back from the time the vaginal examination began. Nothing was happening while waiting for the doctor. Asked "how much time passed?" she said "It seemed like a long time; at least half an hour or longer." Dr Cooper arrived at 1635 and she knew that because she checked the clock. She knew Dr Cooper from the Kelvale Medical Group although again she had never been a patient of his. Dr Cooper checked the foetal heart beat using the same method the nurse used, ie the Pinard, and then proceeded to attempt delivery of the baby. No anaesthetic was used. Dr Cooper asked her to push which she did and it took her a few contractions and for Dr Cooper the use of forceps to deliver the baby. Mrs Jarvinen observed the baby "was a black blue colour. She wasn't breathing and she was just very flat looking." She said there were just the two nurses in the room who remained during the delivery. Dr Cooper turned away from her with the baby. She was aware that shortly afterwards two doctors and a nurse from the flying squad from Princess Margaret Hospital arrived and they appeared to work vigorously on the baby for some time. No explanation was given to her as to what was happening. She was later told by Dr La Grange that her baby needed to be taken to the PMH neonatal ward and the reason given was because of lack of oxygen at birth.
The accuracy and reliability of Mrs Jarvinen's evidence was challenged in a number of respects.
(i)As to her evidence that Dr Sritharan gave her no explanation as to why he was there she initially maintained that position in cross‑examination but ultimately agreed that Dr Sritharan did say who he was and that he was covering for Dr La Grange who was not able to be there to look after her that day.
(ii)That at 1530 hours she was told by the attending nurse that "the baby was in distress".
(iii)Whether or not the contraction when she was told to push occurred during the vaginal examination or whether the examination had been completed before she was asked to push.
(iv)That the nurse who had undertaken the vaginal examination pushed the emergency bell to call in another nurse.
(v)Her evidence that the same nurse who had done the vaginal examination remained with her with her hand in the area of her vagina right through until Dr Cooper arrived.
(vi)That the foetal heart rate was not checked or monitored after the cord prolapse had been discovered and before Dr Cooper's arrival.
(vii)That she remained on her back from the time when the vaginal examination was undertaken until delivery.
(viii)Her evidence that she knew that Dr Cooper arrived at 1635 as "she had checked the clock".
(ix)Her evidence that Dr Cooper used the Pinard to check the foetal heart rate on his arrival in the labour ward.
(x)Her evidence that there were just two nurses in the delivery room throughout.
These matters going to the credibility of Mrs Jarvinen as they do require findings to be made as to their reliability which I will proceed to do in considering and making findings on the credibility of the evidence of each of the witnesses.
Further it was put to Mrs Jarvinen that the whole orientation of her case had changed over the years. That is, the basis upon which her case was now presented and pursued was a vastly different case to that which had initially been instigated and had been the subject of numerous amendments to the statement of claim since proceedings were commenced. Both defence counsel contended that this issue was relevant as going to the credibility of both Mr and Mrs Jarvinen. I will consider that issue separately later in these reasons.
Mr Jarvinen was born on 5 August 1961. His wife's pregnancy was the first time as a prospective father for him and he was very much interested in his wife's progress and the baby's health and wellbeing throughout the pregnancy. He attended antenatal classes with his wife at the hospital. He was with her at home on the evening of 21 October 1984 when her contractions commenced at about 2245 hours. He timed the contractions. When it was time he drove his wife to the hospital about 5 km from their home. They arrived at approximately 0400 hours and went through the admissions process. Mr Jarvinen remained with his wife throughout the day and was at her side when the baby was delivered. His evidence as to the events during the day were substantially consistent with the evidence of Mrs Jarvinen. He confirmed that Dr Sritharan came early in the morning and "may have" told them that Dr La Grange would not be available and that he, Dr Sritharan, would be filling in for Dr La Grange. Dr Sritharan returned at 1400 hours when the ARM was done to speed up delivery. At 1530 hours Mrs Jarvinen was experiencing backache and Mr Jarvinen rang a buzzer to summons a nurse. He was concerned for his wife and for the unborn child. It was his evidence that he asked then to see a doctor but was advised that there was no doctor in the hospital at that time. He said that the midwife took some readings and told Mrs Jarvinen that there was some distress with the foetus. Mrs Jarvinen was told to roll onto her right hand side where she remained for a short while to relieve the backache. The nurse returned about half an hour later. She used a cone shape device to listen to the baby's heart beat and then proceeded to do a vaginal examination. It was his evidence that in the course of this examination Mrs Jarvinen had a strong contraction and the nurse asked her to push. When she did the nurse then with a tone of urgency in her voice told her to stop pushing. In Mr Jarvinen's estimation the whole mood of the delivery changed at that moment. The nurse who had been undertaking the examination pressed the emergency button and very quickly another nurse arrived and she was requested to get the doctor immediately. The first nurse remained at the position from where she had undertaken the vaginal examination. Mrs Jarvinen was told to breathe through her contractions. He said that Mrs Jarvinen asked to use the gas but was told to breathe through her contractions because the nurse wanted her full concentration unaffected by the gas. The second nurse who had gone off to call a doctor came back shortly afterwards and she commenced to prepare some instruments. It was his evidence that at about 1617 hours he was getting anxious because the doctor had not arrived. He recalled that he observed that time by looking at the clock on the labour ward wall. He said that he had been conscious of and noting the time from 1530 hours onwards. He did not recall anyone listening for the foetal heart beat after the 1600 hours examination. He did not recall that any electronic device which audibly amplified the heart beat being used. To him it seemed to be a long time before Dr Cooper arrived. Dr Cooper undertook a vaginal examination and used instruments to assist in delivery of the baby. On delivery Mr Jarvinen observed the baby to be limp, flaccid and its colour blue/black. Dr Cooper took the baby to another area of the room. Mr Jarvinen did not have a view of what was being done. He observed other doctors to arrive who also were working around the baby.
As with the case of Mrs Jarvinen the accuracy and reliability of his evidence was challenged in those matters already detailed. Under intensive cross‑examination he steadfastly stood by his recollection of looking at the clock at 1600 and 1617 hours and it was his belief that the vaginal examination and contraction occurred before 1605 hours. On the other hand he readily acknowledged that, with the passage of 13 years after the event until instructing his present solicitors, his actual recollection was faded. He did particularly remember pushing the emergency button at 1530 hours. Other than that it was difficult for him to know what he actually recalled and what had been put in his mind from what he had discussed with others and read. He acknowledged in cross‑examination that he did not have a recollection of a lot of the things which happened on that day, that he had discussed the events with family members and many times with his wife and had the benefit of reading the hospital records once they were made available. All these things assisted his recollection of the events albeit that he had used them to piece together the events of the day. As with Mrs Jarvinen he acknowledged that the orientation of the case had changed over the years.
Robert Henry Masters was called on behalf of the plaintiffs. He is an inquiry agent/investigator who shortly prior to trial was engaged to measure the distance and time it took to travel from the Kelvale Medical Clinic to the hospital. Allowing for physical changes for doctor parking both at the clinic and the hospital, Mr Masters made allowance for what he considered a fair distance in each of those areas to travel. He had been directed as to the layouts and route of travel by Mr Jarvinen.
At approximately 1615 hours (being near to the time when Dr Cooper travelled the route in 1984) on Tuesday 5 September 1999 he travelled from the clinic to the hospital by the most direct route a distance which he measured as 2.4 km and timed at 3 minutes 40 seconds. The return trip commenced at 1630 hours he timed at 3 minutes 15 seconds. He described the traffic conditions then as being quite heavy and there were a number of vehicles in front of him both at the traffic lights at the intersection of Denny Avenue with Albany Highway and in Albany Highway. His speed on Albany Highway was 40‑50 km/h where the speed limit is 60 km/h. He acknowledged that he only recorded the actual travelling time which did not include any allowance for a doctor to leave his surgery, proceed to his car, get in, start up and get under way or at the other end for parking the vehicle, getting out and proceeding into the labour ward of the hospital. His evidence as to the distance of the trip and the time taken was not challenged.
Wendy Sweetman (nee Hollingsworth) became a registered nurse in 1980 and in 1983 obtained her certificate in midwifery at the Jessop Hospital in Sheffield in the United Kingdom. She returned to Australia in December 1983 and commenced work at the Hospital initially in the general ward and in about June 1984 was transferred onto the maternity ward. She remained working at the maternity ward at the Hospital until the end of 1986. She then went to PMH for 12 months, Bible College for 2 years and then went back to the Hospital to work casually until the end of 1992 when she went to Mt Barker Hospital where she continues to work. In all her experience she has only encountered one case of cord prolapse and that was this case.
On 22 October 1984 she came on duty at 1500 hours and was allocated to the labour ward. At that time she was a junior midwife. On the ward also was Sister Adams, the senior midwife on duty. Her handwriting appears on the partogram from 1500 hours onwards. Her recollection was sketchy and her evidence proceeded by reference to the notes on the partogram. At 1500 the record indicates that she took the maternal pulse and blood pressure and noted that the mother was having contractions every one to two minutes and that they were lasting for sixty seconds. Her evidence was that her training had taught her to measure the contractions over a ten minute period and that it was her invariable practice to do that. She was not challenged in cross‑examination on that. Foetal heart rate was 152R (regular). To detect the heart beat she used either a Pinard stethoscope or a doptone which picks up and amplifies the heartbeat. She was not able to recall which device she used on this day. As to the time recorded for an examination she stated that she usually put the time in within a five minute period of doing the observations. That is, the actual time could be within 5 minutes before or 5 minutes after the time recorded.
Her next entry is at 1520 when she recorded the FH at 130R and she undertook a vaginal examination for the reason, as the notes indicate, that the mother was wanting to push. In those circumstances it was her usual practice to inform the mother that she was close to delivery and not to push but rather just to keep breathing through the contractions.

Her next entry was at 1530 hours when blood pressure was checked, the frequency and duration of contractions timed over a ten minute period and noted FH at 120R during contractions and 140R between contractions. The normal foetal heart rate ranges from 110 to 160 beats per minute. It was her evidence that had she apprehended any problems with the labour at any time she would have contacted the senior midwife. Likewise, it was her practice that any such issue, for example any indication of the foetus being distressed, would have been recorded in the notes.
Her next entry is at 1600 hours. FH was 144R. She recorded contractions of two minutes duration lasting for ninety seconds and measured that by reason of her practice, by assessing the contractions over a ten minute period. Contractions were strong. She recorded those observations on the partogram and then prepared for a vaginal examination. For this procedure, Mrs Jarvinen would be on her back with knees drawn up and feet flat on the bed. The examination would have been undertaken between contractions during which she would feel to ascertain if there was any cervix left and to ascertain the position of the head and how far down it was in the pelvis. On examination she ascertained that the cervix had all gone, ie was fully dilated, and that the head was coming down and that the mother was ready to push. She observed nothing untoward in the course of that examination. Having completed the examination she would have withdrawn her hand and cleaned up and spoken to the mother about what was happening and give her instructions on commencing to push. Her unchallenged evidence was that from commencement to completion of the vaginal examination would have taken five to ten minutes. It was her evidence that at this stage she would have asked Mrs Jarvinen not to use the gas as she pushed down and her reason for this which she said was routine was because the gas makes the mother disorientated and she wanted her to be able to concentrate when she was ready to push. After having instructed the mother on pushing during contractions she observed the presenting part was descending and "I saw something that looked strange I had not really noticed before when I was doing deliveries. I would say from memory it just looked like a grey whitey sort of membraney type thing coming down." Contrary to Mrs Jarvinen's evidence this observation was made after the vaginal examination had been completed and not during the examination. She observed this "thing" in the vagina as the head was coming down and as the mother was pushing and believed that she would have parted the labia to observe that. It was her evidence that because she was unsure of what was happening she then quickly got up and went out to get Sister Adams to come quickly. Cross‑examined she said that she had a clear recollection of going to fetch Sister Adams. It was not the case as had been Mr and Mrs Jarvinens' evidence that she pressed the alarm bell from bedside to summon another midwife. The distance to go and get her was only some ten to fifteen metres distant and she would have walked fairly quickly but not run. Sister Adams followed her to the labour ward and she (Sister Adams) examined the mother and said to Mrs Sweetman "its cord. Ring the doctor". She left the labour ward and went to the telephone immediately outside the labour ward. She telephoned Dr Sritharan's surgery and asked to speak to him. She was not able to recall if there was any difficulty in getting through to him. As best as her recollection was of that conversation was that she told the doctor what was happening and he "basically swore and said he'd deal with that and put the phone down". She could not recall whether Dr Sritharan gave any instructions in relation to digitally elevating the head or any other like measures. The emergency bell had been pressed either by Sister Adams or herself. She returned to the labour ward by which time there were other senior staff present and she proceeded to assist in preparation for delivery. She observed the Director of Nursing and other nursing staff in the ward. As to her notes written on the partogram commencing on the 1600 hours line she could not recall with certainty at what point in time those notes were written. The note "VE‑CX fully dilated;" she believed she would have written pretty soon after doing the examination and she presumed that would have been before discovering the cord prolapse. The following words "commenced pushing, cord seen while pushing ‑ doctor contacted" she presumed were made at some time after making the telephone call to Dr Sritharan and before delivery. The next line records "FH reg; cord pushed up behind head,". Asked about that her evidence was:
"Ok, now, foetal heart heard and regular what caused you to write that?‑‑‑Either myself or someone else must have taken the foetal heart.
Do you recall the foetal heart being taken over this period?‑‑‑I recall always thinking, 'at least the foetal heart's still nice and regular."
On that basis then presumably Sister Adams had told her that she had pushed the cord up behind the head which she duly recorded. If the chronology as recorded is anything to go by that would suggest that the notation about the foetal heart being regular was at a time shortly after her return to the labour ward after telephoning the doctor because by that time, consistent with Sister Adams' evidence, the cord would by then have been pushed up behind the head. There is no other notation of the foetal heart having been monitored in the ensuing period until Dr Cooper arrived. Cross‑examined about her recollection of the foetal heart beat she acknowledged not having any memory of herself using a doptone. She was not able to deny that there was no doptone. She had no memory of "beeping" (being the audible electronic beep which can be heard using the doptone) but she remembered "knowing that the foetal heart rate was ok".
"You were told?‑‑‑I don't know whether I was told or I heard beeping. I just know, in my mind, thinking ‑ because that's what I've carried with me the rest of my professional life, is that foetal heart was fine. It didn't always cause foetal distress, cord prolapse.
Let's be clear about this. You have no distinct recollection of the foetal heart being measured by yourself and it's most unlikely that you did so?‑‑‑I don't ‑ know, I didn't do it myself, no.
You didn't see anybody use an instrument?‑‑‑No, but I was informed by people that the foetal heart was fine, somehow. I can't remember how.
Was that during the crisis or in the debriefing afterwards?‑‑‑No, that was during the crisis."
Nor did she have any memory of seeing anyone use a Pinard stethoscope after the crisis arose. Mrs Sweetman was present when Dr Cooper arrived. She estimated that it was probably ten minutes and not a prolonged time that they were waiting for him. He assessed the situation and decided to deliver the baby with forceps which was done within minutes of his arrival. She recalled that as he delivered the baby his back "went out". When the baby was delivered she observed it was flaccid, no heartbeat, wasn't attempting to breathe at all and was pale. It was her recollection of being shocked by what she saw given that she was aware of a good foetal heart beat up to just prior to delivery. Resuscitation procedures were commenced on the baby. Mrs Sweetman was not able to recall whether or not after discovery of the cord prolapse Mrs Jarvinen took oxygen. However she said it was a routine thing to give oxygen if there was foetal distress or a maternal distress and she presumed it was done on this occasion.
Cross‑examined about her recollection of events that afternoon Mrs Sweetman agreed that with the passage of time it was difficult to have a recollection of precisely what happened and the detail and to distinguish between what upon reflection she believed may have happened by reason of her knowledge now with the benefit of much greater experience gained since then. No enquiry as to the events preceding Lisa's birth was undertaken at the Hospital and she was not asked to make any written report of the events. It was her opinion that despite the adverse outcome that was not necessary as they had done all that they could in the circumstances. Mrs Sweetman had been interviewed in 1987 and in 1994 in relation to this matter by a person from the Crown Solicitor's Office representing the Hospital. Presumably it was from these interviews and similar interviews with Sister Adams that interrogatories were answered on behalf of the Hospital in July 1994 (Exhibit 8). In large part the answers to interrogatories reflect the information recorded in the Hospital file and in particular on the partogram. In many instances where information was not recorded in the Hospital notes it is stated "…and attending midwives cannot remember and I am thus unable to answer this interrogatory." Consistent with Mrs Sweetman's evidence however, and a matter not recorded in the Hospital notes, was the answer given to interrogatory 53(f) as follows:
"QState whether any action was taken following the sighting of the umbilical cord and if so state what that action was the time the action was taken and provide the reason or reasons for the action being taken.
AThe most experienced Registered Midwife was summoned and she pushed the cord up and lifted and held the foetal head away from the cord to avoid compression of the cord. Dr Sritharan was telephoned by another midwife, told of the situation and asked to attend."
Relevantly also, this answer was given well before the allegation of failing to take "first aid" measures was raised.
Mrs Sweetman acknowledged that it was then as it is now proper nursing practice to maintain detailed nursing records and to record all relevant information relating to progress of the labour and delivery on those records. She acknowledged that in hindsight more information might have been recorded and in particular, given the issues raised in this case, the time at which the prolapse was discovered, the time when the telephone call was made to Dr Sritharan, the time/s when FH rate was taken and the rate recorded and the time when Dr Cooper arrived. The adequacy of the notes taken will be commented on later in these reasons.
I found Mrs Sweetman to be most forthright in giving her evidence and not tentative or evasive at all. She readily acknowledged that her actual recollection despite this being a unique event in her experience was not good. For the details she relied on the Hospital's records. In other respects she relied on the fact that certain procedures were and had been for her routine in all labours and deliveries, eg the time which she took to measure contractions, steps taken before undertaking a vaginal examination and the use of gas if there was any maternal or foetal distress. As to such matters where she said she "would have" done such things I have no reason to conclude that they were not done. Furthermore there were specific matters which she did recall which stand out in her mind still, eg hurrying away to get Sister Adams (whose evidence confirmed that), telephoning Dr Sritharan and the incongruity of him having sworn (unusual for him but understandable upon being told of the prolapsed cord) and being surprised by the adverse outcome given her belief that the FH rate had been "nice and regular". She steadfastly maintained that there was no delay in making the telephone call to Dr Sritharan. The integrity of her evidence was illustrated by the following exchange in cross‑examination.
"And it would be an awful burden for you to have to bear if you made that phone call late?---It would be and I don't bear that burden."
I accept her evidence as credible and reliable.
Jennifer Neale Southey Adams (Sister Adams) became a registered nurse in 1963 and thereafter obtained the qualification of registered midwife in 1969. She has since then worked continuously as a midwife. She commenced at the Hospital in January 1972 and remained until 1987. Thereafter she worked as a midwife at the Gosnells Private Hospital and since 1988 she has done some agency work and worked as a casual midwife at Attadale Hospital. In her 30 years of experience she has only witnessed two instances of prolapsed cord, the first being the subject of these proceedings, and the other at the Gosnells Hospital. She made no writing on the Partogram.
On 22 October 1984 she commenced duties in the afternoon at 1300 or 1400 hours caring for patients in the obstetric and gynaecological ward. Her first communication in relation to Mrs Jarvinen was when Mrs Sweetman came to the nurses' station about 60 metres from the delivery suite. Mrs Sweetman asked her "Can you come? I think I might have a prolapsed cord." She proceeded with Mrs Sweetman immediately to the patient. To the best of her recollection she put sterile gloves on, parted the labia and noticed the cord. She then inserted her fingers and pushed the head out of the way and pushed the cord up behind the baby's head. After she had pushed the cord up there was no cord remaining in the vagina. She kept her fingers under the baby's head so that it wouldn't disturb the cord. Although she does not now have an actual recollection she believed that she would have told Mrs Sweetman "Get the doctor." She had no recollection of the emergency bell being pushed.
Whilst she was doing this the patient was lying on her left side. Sister Adams had no doubt about that. It was her evidence that although she had been taught that in these circumstances the patient should be placed in the knee chest position she did not consider placing her in that position as she felt that she would have lost control if she had moved her. That is with the movement of the patient into another position the cord could have come down again. She did not see the cord again. She was not sure if the patient used the nitrous oxide/oxygen mask. It was Sister Adam's experience that in any event of emergency with an obstetric patient that they would be given oxygen. It would have been an automatic reaction for the administration of oxygen in these circumstances. She could not recall whether any steps were taken to monitor the foetal heart. She was not in a position herself to do that. She remained with her fingers in the vagina supporting the foetal head until Dr Cooper arrived. She could not recall how long it took for him to arrive or any discussion which she may have had with him. She did not make any notes on the partogram but left that to Mrs Sweetman. She had no reason to check the sufficiency of the notes. She too agreed that important information which should have been recorded was not.
As this was the first prolapsed cord experienced by Sister Adams in 15 years of practice as a midwife it is perhaps surprising that her recollection was so minimal. It could well have been that she was focused on ensuring that the cord was not compressed by the head coming down and so long as that were the case then other steps were secondary or would not have made any difference and thus she had no reason to remember them if in fact they were taken. That Sister Adams maintained her position and the measures she was taking until Dr Cooper's arrival suggests firstly she was satisfied that this measure was effective. Inferentially (and consistent with Mrs Sweetman and Dr Cooper's evidence) that would suggest that the foetal heart was being monitored and regular. Secondly that it was not an unduly or exceptionally long time before Dr Cooper arrived. To hold the foetal head back against the maternal forces could not be maintained indefinitely.
Christine Katarina Greenfield was a secretary employed at the Kelvale Medical Group between 1978 and 1993. She was an accounts clerk, receptionist and practice manager.
She gave evidence of the telephone system in operation at the clinic in 1984, the manning of the reception desk and procedure in responding to telephone calls from hospitals. It was her evidence that "If any call came from the hospital it would be transferred through to the doctor immediately." She was not able to give evidence as to the relevant call from the Hospital for Dr Sritharan.
She was pressed in cross‑examination as to the adequacy of the telephone system, risk of all the lines being engaged and the possibility of calls not getting through. There was nothing arising from her evidence or indeed was there any evidence which would support the plaintiff's contention that there was a delay or the possibility of a delay in Mrs Sweetman's call getting through to Dr Sritharan. It was merely a fishing expedition on the part of plaintiffs' counsel. I find therefore that the use of the telephone system and the system for communicating with the doctor (bearing in mind that this was before the advent of mobile telephones) was an adequate and sufficient practice and that on this occasion there is no reason to believe that the call did not get through. To conclude otherwise would be to condescend to pure speculation.
Dr Sritharan graduated as a doctor in early 1971. In 1978 he underwent some six months training in obstetrics in the United Kingdom where he worked for approximately 2 years. He came to Australia in 1981 and initially worked at Paraburdoo for six months before joining the Kelvale Medical Group and after some six months employment there he became a partner of that group. In 1983 he had obtained his diploma from the Royal College of Obstetricians and Gynaecologists.
In 1984 he was in general practice and the extent of his obstetric practice was the conduct of about forty deliveries per year. At that time, four doctors in the Kelvale Group out of six or seven practised in obstetrics. Dr Cooper was the most experienced and did most of the obstetrics. The protocol at the practice was that Dr Cooper conducted the more difficult obstetrics.
In 1984 Dr Sritharan's room was directly opposite Dr Cooper's room separated only by the corridor. The Hospital was the closest to the practice and that was the only hospital where he conducted obstetrics. Over the years he had contact with most of the midwives that worked in the labour ward. He regarded Mrs Sweetman, although then relatively new, competent and energetic and Mrs Adams, one of the senior midwives, as very competent and experienced. It was his opinion that the obstetric unit was managed by midwives of excellent competence.
The system in place at the practice was that there was a roster whereby if there was a general emergency or if a particular doctor was not available then one of the other doctors was "first on call" with the back‑up of a "second on call" doctor. On this occasion because Dr La Grange was otherwise engaged it befell Dr Sritharan, as "first on call" to manage Mrs Jarvinen's confinement.
Dr Sritharan's first contact with Mrs Jarvinen was at a time between 0800 and 0830 hours. It was his evidence that he introduced himself and told Mrs Jarvinen he was there to cover because of the unavailability of Dr La Grange. He would have referred to the hospital records to ascertain the background and progress of the labour. When he saw her then the labour was progressing satisfactorily. He returned to his clinic. At about 1000 hours he telephoned the labour ward to ascertain how Mrs Jarvinen was progressing. Although not recorded he believes that he telephoned again at about 1230 hours, it being his usual practice to check after two hours. A note on the partogram that he would review at 1230 hours would seem to confirm that.
At 1400 hours he attended at the Hospital and undertook a vaginal examination and thereafter artificially ruptured the membrane. His note on the partogram does not indicate meconium present at the time of the ARM. Mrs Jarvinen was placed on an intravenous drip. Labour was progressing normally and there was no need for him to remain at bedside and he returned to his clinic. The foetus had normal heart rate and the mother was doing well.

In evidence when asked why there should be one standard for a Level 1 hospital and a different standard for a tertiary hospital he said:
"Its not only a hospital like that its every private hospital is staffed the same way and that's considered an acceptable standard for private hospitals and district hospitals. Its just a matter of cost effectiveness I guess that you can't have a full time registrar in every obstetric unit. That just wouldn't ‑ you couldn't justify that on a cost effective basis I would imagine that would be the argument."
The consensus of the expert medical opinion was that it was perfectly acceptable to manage low profile risk pregnancies in Level 1 hospitals in the way that Mrs Jarvinen's pregnancy was managed. Furthermore, the consensus was that this acute obstetric emergency could not have been predicted and that the subsequent management once the cord prolapse was discovered was appropriate and did not fall below the level of care expected in a Level 1 hospital. In fact the level of availability and the response in these circumstances was consistent not only with that to be reasonably expected at a Level 1 hospital but was consistent with (and for some witnesses superior to) the availability of medical practitioners in a Level 3 hospital.
Having regard to the expert evidence, the procedures in place and the response in this instance I am satisfied that the plaintiffs' contention that the duty to take reasonable care required that there should have been 24 hour resident medical officers at the Hospital in 1984 cannot be sustained.

Causation

Notwithstanding the findings made thus far it is necessary that I proceed to consider the issue of causation. In written submissions it is the plaintiffs' contention that:
"The failure of the defendants to act immediately to prevent foetal distress and to effect a rapid delivery was the actual cause of the infant plaintiff's injury. Rapid delivery was possible as the second plaintiff was fully dilated. This would have immediately relieved the progressive hypoxic condition. The long delay after discovery of the prolapsed cord and before a forceps delivery was effected at 1645 hours must be regarded as causing a cumulative or progressive state of hypoxia leading to the asphyxia diagnosed at birth. Alternatively, this course of events may be regarded as having produced or increased the vulnerability of the foetus to the trauma of the birth and left her more susceptible to the effects of delay and the intervening hypoxia. Either way the negligence of the defendants was the cause or a material contributory cause to the eventual disability."
In submissions on behalf of the Hospital the point is made in response that the issue as to causation is not merely whether the prolapse of the cord caused the infant plaintiff's cerebral palsy the issue in relation to causation is whether the alleged hypoxia or anoxia (and in turn the cerebral palsy) was caused by the negligence of the defendants. The onus is on the plaintiffs to demonstrate that as a matter of common sense and experience the infant plaintiff's condition was caused by some act or omission on the part of the defendants, either alone or in combination with other factors and was such would not have occurred in any event.
In Bennett v Ministry of Community Welfare (1992) 176 CLR 408 at 420‑421 Gaudron J expressed the view:
"…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."
The majority of the High Court in Chappel v Hart (1998) 195 CLR 232 appear to have accepted that view. In Naxakis v Western General Hospital (1999) 197 CLR 269 at 278‑279 Gaudron J referred to the judgment of McHugh J in Chappel. Though in the minority McHugh J on causation said (at 244):
"Before the defendant will be held responsible for the plaintiff's injury the plaintiff must prove that the defendant's conduct materially contributed to the plaintiff suffering that injury. In the absence of a statute or undertaking to the contrary, therefore, it would seem logical to hold a person causally liable for a wrongful act or omission only when it increases the risk of injury to another person. If a wrongful act or omission results in an increased risk of injury to the plaintiff and that risk eventuates the defendant's conduct has materially contributed to the injury that the plaintiff suffers whether or not other factors also contributed to that injury occurring."
It was the evidence of those medical experts who addressed this point that it was not possible to say conclusively when damage to the infant plaintiff occurred or whether it was the outcome of total, partial or intermittent occlusion or a combination of each. The consequence however was cardiac arrest prior to delivery. However it is not possible to precisely pinpoint when that occurred in the context of the time of birth. It may nevertheless be concluded on the balance of probabilities that the critical incident of intrapartum asphyxia occurred during the final stages of the birth process itself. That final stage after Dr Cooper arrived was between 5 and 10 minutes. The asphyxia continued for a period beyond the birth. Resuscitation leading to a heart beat was achieved some 16 minutes after delivery and the establishment of spontaneous breathing a further one hour later.
The defendants contend that it may safely be concluded that the asphyxia during the birth process would have occurred regardless of the time at which the infant plaintiff was born and in circumstances where the administration of first aid measures was impossible. Support for this conclusion is said to be evidenced by:
(a)The presence of a normal foetal heart rate at the time of Dr Cooper's arrival;
(b)The short duration in which neurological damage can occur by reason of asphyxia;
(c)The fact that the infant plaintiff was able to be resuscitated; and
(d)The extreme physiological processes involved in the birth process and the effect on the cord created by those processes.
Evidence of the medical experts whilst not conclusive would tend to support the issues (b) and (c) above.
Dr Carlton:
"If in fact the digital decompression had been successful so that if there was normal foetal heart beat during the time when the digital decompression was conducted and with the mother lying on her left side, taking into account this was a right sided prolapse, there is every prospect that no damage had been done before the actual last assault of the birth process isn't it? That's a possibility?---No‑one is able to assess how effective in that individual case the elevation of the present part was in helping to relieve the cord compression. There is no method of doing that.
Yet we do know that once the doctor commences delivery you can't have any more decompression?‑‑‑That's right.
Because you can't have someone pushing the foetal head up and someone trying to pull it out?‑‑‑No absolutely.
Prof J J Newnham:
"Total cord occlusion for a period of time is mandatory as the head is descending through the birth canal. It is mandatory. There is not room for the umbilical cord to be there and to remain patent."
Dr Caldwell (Exhibit 41A):
"The umbilical cord blood circulation is stopped and so the oxygen supply to the foetus ceases. The foetus then, if not delivered in about 4‑6 minutes will first suffer irreversible brain damage (but still be alive) and then can soon die."
Dr Child:
"Accepting that in that atmosphere that Dr Cooper concluded that the doptone demonstrated that the child was alive that the foetal heart rate was within acceptable limits…?‑‑‑Yes
…At the other end of the scale we've got resuscitation in approximately 15 minutes of a very flat child?‑‑‑Yes.
We know that there's no first aid going on between the time when the doctor commencing the delivery and the time of the delivery, so the decompression and all other advantages that existed before that are not available in the birth process?‑‑‑Apart from oxygen administration. That can still continue obviously.
Yes?‑‑‑But the others are not available.
Yes. Taking those factors into account that would reinforce the view that you tentatively made or tentatively arrived at that it was probably in the last…?‑‑‑Yes.
…5 or 10 minutes that something happened? Correct?---That was a very critical time obviously.
Yes. And the additional factor that I can put to you of the doptone sound would reinforce the view that you had already arrived at that probably the relevant causative time frame from the damage is an event commencing in the last 5 or 10 minutes of the delivery process?‑‑‑Assuming that doptone was within the normal limits yes."
Dr Williams:
So damage could occur ‑ if the cord is blocked for 5 minutes damage to the foetus could start occurring?‑‑‑Yes.
Prof Chapman:
But some damage can occur as early as 8 minutes?‑‑‑I would think there would begin to be because the brain is spared ‑ the foetal circulation is such that the brain tends to be spared so there could be damage going on elsewhere as well as minor damage in the brain producing neurological sequelae later.
. . .
Yes, but do you agree with the proposition that it is a conventionally held view that damage may occur within 10 minutes, let's say of total occlusion of the cord?‑‑‑Yes."
Prof J P Newnham:
"Now so far as the circumstances of the present case are concerned from the information available to you is it possible to say when in the course of the confinement of Mrs Jarvinen any occlusion of the cord occurred so as to cause birth asphyxia?‑‑‑I would think it most likely occurred at the very end prior to birth.
. . .
You've expressed the view that it is most likely at the end. Why do you express that view that it was most likely at the final stage?‑‑‑Well I can't imagine another scenario by which it could have occurred. If it had occurred severely before and remained occluded the foetus should have been dead at the time of the birth and not resuscitable. It is plausible that during that period of time immediately prior to delivery as the head descended further into the pelvis the occlusion became complete and that would explain why the baby was born in such an extreme state.
Dr M J Harbord, consultant paediatric neurologist with a speciality in neonatal care practising in Adelaide:
"In terms of the forces that you have agreed which are exerted on a foetus during the final stages of the birth process whether it be…? I am talking about forces on the prolapsed cord. That's what I was referring to.
Yes, and so was I when I was asking you to comment about the effect of the uterus contracting more frequently and stronger and when I was asking you about the squeezing of the foetal head and the cord through the pelvic outlook. You recall that line of questioning. It wasn't so long ago?‑‑‑In relation to compression of the umbilical cord, yes.
Yes exactly. It may be that those forces caused the cardiac arrest mightn't it?‑‑‑That's possible yes.
It doesn't matter whether you have delivery at 4.15, 4.30 or quarter to five. Those same compressive forces will be present and acting in the manner that you have agreed won't they?‑‑‑Not necessarily.
I didn't say that. I suggest to you that as an overwhelming probability the forces that were applied to this foetus say between 4.30 and 4.45 would have been applied 10 minutes earlier or 10 minutes earlier than that?‑‑‑Yes. That's correct."
Prof Michael:
"In this case due to the severity of the eventual disability and the duration of the resuscitation it is probable that the arrest occurred quite some time before delivery?‑‑‑I don't believe there is enough information to make that decision but I guess anything is possible and whether or not it occurred during the delivery and that the delivery was the final insult; I'm not talking about a traumatic delivery I'm talking about the hurried delivery which was essential, may have been a final insult in an already compromised baby.
. . .
I suggest to you that's its almost inconceivable that Lisa Jarvinen's heart rate could have been 144 ten minutes before delivery?‑‑‑Its possible.
Is it possible?‑‑‑Yes, its possible.
I suggest to you though its very very unlikely?‑‑‑Without the recording you could argue yes, with a recording that was heard I think the answer would be no."
The plaintiff's case relies upon a conclusion being drawn that had delivery been effected sooner then the risk of an adverse outcome would have been reduced or avoided altogether. That proposition relies on the physiological and clinical evidence to indicate that in all probability there was bradycardia and other abnormalities in the heart rate prior to the arrival of Dr Cooper and the rejection of Dr Cooper's evidence that he heard a regular foetal heart beat upon arrival. The delivery was effected within 5‑10 minutes of Dr Cooper's arrival at bedside. The condition of the baby at birth is not evidence which can be used of itself to support a finding that had the delivery been effected earlier the outcome would have been different. It is relevant that whilst the asphyxial event commenced in utero there was a continuing period of asphyxia in the period post birth.
Dr Caldwell:
"In terms of the duration of the asphyxial event…we have heard in the present case that the baby wasn't actually revived or resuscitated in terms of heart beat until about 5.00 o'clock ‑ 5.01 on one view 5.00‑o'clock on another. The birth as you will recall was quarter to five. I'm right am I not in saying that every second of asphyxia contributes towards brain damage?‑‑‑I suppose that's a reasonable statement, yes.
Yes. It matters not to the foetus whether its in utero in a state of asphyxiation or whether it’s a baby having been born in a state of asphyxiation that the same acidotic events are taking place and affecting brain tissue. Correct?‑‑‑Yes, they are."
Having regard to the medical evidence it is not possible to conclude with any degree of certainty or confidence, let alone to be satisfied to the requisite standard that the plaintiffs have made out their case on the basis of the proposition propounded.
I must therefore conclude notwithstanding that the medical evidence is not conclusive as a matter of scientific proof that no negligent conduct or omission on the part of the midwives or doctors caused or materially contributed to the outcome.
In the final analysis I conclude that the asphyxia during the birth process would have occurred regardless of the time at which the infant plaintiff was born and that the outcome was therefore inevitable.

Conclusions

I appreciate that these Reasons will not answer the question: Why? The most eminent medical practitioners who gave evidence at trial have not been able to answer that question. The object of this trial has been to ascertain whether or not the outcome was consequent upon the negligence of the Hospital, its staff and/or the doctors. For the reasons which are expressed I conclude that the plaintiffs have failed to satisfy the Court that the outcome was as a consequence of any negligence on the part of the Hospital, its staff or the doctors involved.
Accordingly the claim against each of the defendants must be dismissed.