MEDICAL BOARD OF AUSTRALIA and BASU
[2018] WASAT 82
•16 AUGUST 2018
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010
CITATION: MEDICAL BOARD OF AUSTRALIA and BASU [2018] WASAT 82
MEMBER: PRESIDENT, JUSTICE J C CURTHOYS
MS D QUINLAN (MEMBER)
DR B MENDELAWITZ (SENIOR SESSIONAL MEMBER)
HEARD: 27, 28 AND 29 NOVEMBER 2017
DELIVERED : 16 AUGUST 2018
FILE NO/S: VR 6 of 2017
BETWEEN: MEDICAL BOARD OF AUSTRALIA
Applicant
AND
ABHIJIT BASU
Respondent
Catchwords:
Professional misconduct - Breach of guidelines - Obstetrician - Inadequate handover - Uterine hyperstimulation - Failure to make adequate notes - Vacuum extraction - Failure to diagnose - Excessive pulls using vacuum cups - Failure to take steps to resuscitate foetus
Legislation:
Health Practitioner Regulation National Law (NSW), s 139B(1), s 139E
Health Practitioner Regulation National Law (WA) Act 2010 , s 3, s 5, s 41
State Administrative Tribunal Act 2004 (WA), s 9Result:
Practitioner found to have engaged in professional misconduct
Category: B
Representation:
Counsel:
Applicant : Ms FA Stanton Respondent : Mr J Ley Solicitors:
Applicant : MDS Legal Respondent : Panetta McGrath Lawyers Case(s) referred to in decision(s):
Briginshaw v Briginshaw (1938) 60 CLR 336
Chen v Health Care Complaints Commission [2017] NSWCA 186
Health Care Complaints Commission v Bours (No 1) [2014] NSWCATOD 113
Legal Profession Complaints Committee and Wells [2014] WASAT 112
NOM v Director of Public Prosecutions (2012) 38 VR 618
Rejfek v McElroy (1965) 112 CLR 517
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
1This matter concerns the conduct of Dr Abhijit Basu, a specialist obstetrician during the delivery of a baby in September 2014 at the Rockingham General Hospital (the Hospital).
2Delivery procedures using a vacuum cup and/or forceps are known as assisted deliveries or instrumental deliveries.
3A vacuum cup is made of soft or semirigid plastic or metal which is attached to the baby's head. The cup fits on top and towards the back of the baby's head. When the cup is placed on the baby's head, a suction device attached to the cup is turned on. This creates a vacuum. The cup has a handle to pull on. As the mother pushes the doctor or midwife pulls on the cup to assist with delivery.
4In broad terms, when using a vacuum cup, the baby needs to be far enough down the birth canal that it is close to being born. If the head is too high in the birth canal or the vacuum pulls do not lead to descent then a caesarean section may be necessary.
5Initial attempts were made to deliver the baby using a vacuum cup and forceps. Ultimately, it was necessary to deliver the baby by caesarean section.
The Medical Board of Australia's application
6On 10 January 2017, the Medical Board of Australia (the Board) filed an application with the Tribunal alleging professional misconduct by Dr Basu during the delivery in September 2014.
7The allegations ultimately made by the Board against Dr Basu were pursuant to further amended grounds dated 20 November 2017 (the Grounds). Dr Basu's amended responsive statement was filed on 27 October 2017. It was unnecessary to amend his responsive statement in response to the further amended grounds.
8The allegations against Dr Basu are effectively summarised in para 71 of the Grounds:
71.The Applicant alleges that [Dr Basu] has behaved in a way that constitutes professional misconduct, unprofessional conduct or unsatisfactory professional performance for the purposes of the National Law in that the [Dr Basu]:
71.1.failed to obtain sufficient information about the Patient and the Patient's treatment to enable continuing care of the Patient …;
71.2.failed to ascertain, listen to or correctly interpret information about the Patient and the Patient's treatment that was recorded on the CTG Trace and provided to him by other health practitioners …;
71.3.failed to make a handover note in the Patient's clinical notes of information provided to him about the Patient and the Patient's treatment as required by section 8.4 of the Code of Conduct …;
71.4.failed to make any attempt to resuscitate the Patient's fetus …;
71.5.failed to record or adequately record his findings on the vaginal examination in the Patient's clinical notes as required by section 8.4 of the Code of Conduct …;
71.6.failed to explain to the Patient the vacuum extraction procedure that he proposed to perform …;
71.7.failed to advise the Patient of alternative procedures to vacuum extraction including a trial of assisted vaginal delivery in theatre or caesarean section …;
71.8.failed to obtain the Patient's informed consent to vacuum extraction before attempting vacuum extraction …;
71.9.performed the Eighth Traction Pull, Ninth Traction Pull, Tenth Traction Pull, Eleventh Traction Pull and Twelfth Traction Pull when he knew, or ought to have known, that each of those traction pulls should not be performed because:
(a)there had been minimal descent despite seven previous traction pulls made by Dr Jose;
(b)delivery was not imminent despite seven previous traction pulls made by Dr Jose; and/or
(c)it was unsafe to perform any traction pulls because seven traction pulls had already been performed by Dr Jose;
71.10.in the alternative to 71.9, caused a vacuum cup to be applied to the fetal head for longer than five minutes when he knew or ought to have known that a vacuum cup had already been applied to the fetal head for at least 15 minutes;
71.11.in the further alternative to 71.9, despite Ms Wrench or alternatively Ms Hammond calling out 'Seventh pull, first by Dr Basu' during the Eight Traction Pull:
(a)failed to obtain a history or further history; and
(b)failed to immediately cease performing traction pulls;
71.12.in the further alternative to 71.9, after the Tenth Traction Pull failed to discuss with the Patient alternatives to further attempts at vacuum extraction in the delivery suite including a trial of assisted vaginal delivery in theatre or direct recourse to caesarean section;
71.13.in the further alternative to 71.9, performed the Eighth Traction Pull, Ninth Traction Pull, Tenth Traction, Eleventh Traction Pull and Twelfth Traction Pull when there was minimal descent with each pull and when delivery was not imminent after the first three traction pulls;
71.14.performed the Tenth Traction Pull, Eleventh Traction Pull and Twelfth Traction Pull when he knew or ought to have known that it was unsafe to perform those traction pulls because a vacuum cup had been applied to the fetal head for more than 20 minutes;
71.15.prior to attempting forceps delivery, failed to interpret vaginal examination findings correctly in that he did not identify the asynclitic position of the fetal head and wrongly concluded that forceps delivery would be possible when it was not …;
71.16.prior to attempting forceps delivery, failed to record or adequately record his findings on vaginal examination in the Patient's clinical notes as required by section 8.4 of the Code of Conduct …;
71.17.applied or attempted to apply forceps when he knew, or ought to have known, that there were indications for abandonment …;
71.18.in the alternative to 71.17, applied or attempted to apply forceps outside of a theatre when he knew or ought to have known that there were indications for abandonment …;
71.19.failed to explain to the Patient the forceps delivery procedure that he proposed to perform;
71.20.failed to advise the Patient of alternative procedures to the forceps delivery including a trial of assisted vaginal delivery in theatre or caesarean section; and
71.21.failed to obtain the Patient's informed consent to forceps delivery before attempting forceps delivery.
9Although the expression 'vacuum extraction (pull)' was used in the Board's Grounds, the Tribunal has used the expression 'vacuum pull' because that is the term more commonly used throughout the evidence.
Professional misconduct
10The term 'professional misconduct' is relevantly defined in s 5 of Health Practitioner Regulation National Law (WA) Act 2010 (National Law) as conduct of a regulation health practitioner which includes:
(a)unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(b)more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience[.]
(See s 139E of the Health Practitioner Regulation National Law NSW (National Law NSW))
11The first and second limbs of the definition of 'professional misconduct' incorporate the term 'unprofessional conduct' (see s 139B(1) of the National Law NSW).
Unprofessional conduct
12The term 'unprofessional conduct' is defined in s 5 of the National Law as meaning:
professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner's professional peers, and includes
(a)a contravention by the practitioner of this Law, whether or not the practitioner has been prosecuted for, or convicted of, an offence in relation to the contravention; and
(b)a contravention by the practitioner of
(i)a condition to which the practitioner's registration was subject; or
(ii)an undertaking given by the practitioner to the National Board that registers the practitioner;
and
(c)the conviction of the practitioner for an offence under another Act, the nature of which may affect the practitioner's suitability to continue to practise the profession; and
(d)providing a person with health services of a kind that are excessive, unnecessary or otherwise not reasonably required for the person's well being; and
(e)influencing, or attempting to influence, the conduct of another registered health practitioner in a way that may compromise patient care; and
(f)accepting a benefit as inducement, consideration or reward for referring another person to a health service provider or recommending another person use or consult with a health service provider; and
(g)offering or giving a person a benefit, consideration or reward in return for the person referring another person to the practitioner or recommending to another person that the person use a health service provided by the practitioner; and
(h)referring a person to, or recommending that a person use or consult, another health service provider, health service or health product if the practitioner has a pecuniary interest in giving that referral or recommendation, unless the practitioner discloses the nature of that interest to the person before or at the time of giving the referral or recommendation;
Unsatisfactory professional performance
13The term 'unsatisfactory professional performance' is defined in s 5 of the National Law as meaning:
[T]he knowledge, skill or judgment possessed, or care exercised by, the practitioner in the practice of the health profession in which the practitioner is registered is below the standard reasonably expected of a health practitioner of an equivalent level of training or experience[.]
A Code of Conduct for Doctors in Australia
14Section 8.4 of the Board's Good Medical Practice: A Code of Conduct for Doctors in Australia (Code of Conduct) provides:
Maintaining clear and accurate medical records is essential for the continuing good care of patients. Good medical practice involves:
8.4.1Keeping accurate, up-to-date and legible records that report relevant details of clinical history, clinical findings, investigations, information given to patients, medication and other management.
8.4.2Ensuring that your medical records are held securely and are not subject to unauthorised access.
8.4.3Ensuring that your medical records show respect for your patients and do not include demeaning or derogatory remarks.
8.4.4Ensuring that the records are sufficient to facilitate continuity of patient care.
8.4.5Making records at the time of the events, or as soon as possible afterwards.
8.4.6Recognising patients’ right to access information contained in their medical records and facilitating that access.
8.4.7Promptly facilitating the transfer of health information when requested by the Patient.
(Board's Further Amended Grounds para 25; Dr Basu's Amended Response Statement para 11)
15Section 41 of the National Law provides:
An approved registration standard for a health profession, or a code or guideline approved by a National Board, is admissible in proceedings under this Law or a law of a co regulatory jurisdiction against a health practitioner registered by the Board as evidence of what constitutes appropriate professional conduct or practice for the health profession.
The authorities
16The relevant authorities are set out in the reasons for decision of Health Care Complaints Commission v Bours (No 1) [2014] NSWCATOD 113:
…
524Interpretation of the legislation is assisted by the body of common law in the area of professional disciplinary matters. The classic common law definition of professional misconduct derives from Allinson v General Counsel of Medical Education and Registration (1894) 1 QB 755, namely:
[Conduct] which could be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency.
525The essence of this definition was restated by Priestley JA in Qidwai v Brown (1984) 1 NSWLR 100 at 105:
... whether the practitioner was in such breach of the written or unwritten rules of the profession as would reasonably incur the strong reprobation of professional brethren of good repute and competence[.]
…
527Contemporary cases involving unsatisfactory professional conduct and professional misconduct primarily consider the wording of the relevant statute rather than the considerations of moral condemnation found in earlier decisions, expressing their views 'in terms of strong criticism'. (Lucire v Health Care Complaints Commission [2011] NSWGA 99 at 84; Donnelly v Health Care Complaints Commission (NSW) [2011] NSWSC 705).
17More recently in Chen v Health Care Complaints Commission [2017] NSWCA 186, Basten JA at [19]-[20] (Leeming JA agreeing) stated:
19… The term 'professional misconduct' does not have a specific meaning; it is merely a category of 'unsatisfactory professional conduct' which is sufficiently serious to justify suspension or cancellation (Health Practitioner Regulation National Law (National Law) s 139E). The phrase 'unsatisfactory professional conduct' is broadly defined by reference to 12 separate categories of conduct relating to professional practice. They include demonstrating competence or care below the standard reasonably expected of a practitioner of an equivalent level of training or experience, (National Law s 139B(1)(a)) making a referral in circumstances where the practitioner has a financial interest in giving that referral without disclosing the interest, (National Law s 139B(1)(i)) overservicing (National Law s 139B(1)(j)) and, finally, any other improper or unethical conduct relating to the practice of the practitioner's profession (National Law s 139B(1)(l)).
20There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be 'sufficiently serious' to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal[.]
Onus and standard of proof
18The Board bears the onus of proof. In Legal Profession Complaints Committee and Wells [2014] WASAT 112 at [8] and [9], the Tribunal stated:
The Committee bears the onus of proof. It is to the civil, not criminal standard but the principles of Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw) apply. That is, while needing to be proved only on the balance of probabilities, the nature and seriousness of the allegations are relevant to the question whether the issues are proved to the reasonable satisfaction of the Tribunal and the process by which reasonable satisfaction is attained.
By reason of the nature of the allegations, the Tribunal must feel an actual persuasion of the occurrence or existence of the relevant facts in determining whether or not the case against the practitioner is made out: Medical Board of Western Australia and Wright [2010] WASAT 48 at [31]; and see Medical Board of Western Australia and Bham [2006] WASAT 190 at [144].
(See also Rejfek v McElroy (1965) 112 CLR 517 (Rejfek))
19In Briginshaw v Briginshaw (1938) 60 CLR 336 at 362, Dixon J, as he then was, observed '[i]n such matters ''reasonable satisfaction'' should not be produced by inexact proofs, indefinite testimony or indirect inferences'.
20The standard of proof required in a civil case where serious allegations are made was stated in Rejfek, where Barwick CJ, Kitto, Taylor, Menzies and Windyer JJ observed at 521 that:
The 'clarity' of the proof required, where so serious a matter as fraud is to be found, is an acknowledgment that the degree of satisfaction for which the civil standard of proof calls may vary according to the gravity of the fact to be proved …
But the standard of proof to be applied in a case and the relationship between the degree of persuasion of the mind according to the balance of probabilities and the gravity or otherwise of the fact of whose existence the mind is to be persuaded are not to be confused.
21In NOM v Director of Public Prosecutions (2012) 38 VR 618 at [124], the Victorian Court of Appeal stated:
… mere mechanical comparison and probabilities independent of a reasonable satisfaction will not justify a finding of fact. The fact finder must feel an actual persuasion of the occurrence or existence of the fact in issue before it can be found. Where, as in the present case, the standard of proof is to be applied to circumstantial evidence, satisfaction as to a reasonable and definite inference is required.
22The Tribunal's findings below are made on the balance of probabilities applying the principles as set out in the authorities above.
Factual witnesses
23The Tribunal has heard from a number of factual witnesses in these proceedings. Except where specifically found otherwise, the Tribunal finds that the factual evidence of Dr Basu is not accepted over other factual witnesses, in particular, the evidence of Dr Jose, Nurse/Midwife Hammond and Midwife Wrench are preferred over the factual evidence given by Dr Basu.
24For the reasons expressed throughout, the Tribunal finds that Dr Basu has poorly recalled events.
The experts
25The Board called Professor Quinlivan to give expert evidence. Her qualifications and experience appear in Exhibit D page 2. She is extremely well qualified and experienced.
26Dr Basu called Dr Michael McEnvoy to give expert evidence. His qualifications and experience appear in Exhibit F at page 28 44. He is also extremely well qualified and experienced.
27The two experts' qualifications are further described in the Joint Statement of Expert Witnesses (the Joint Statement) as follows:
Professor Quinlivan has been a public hospital Obstetrics and Gynaecology Unit Head (tertiary and secondary hospitals) in three States, Board member of North and South Metropolitan Health Services in WA, in private practice for 17 years, and held senior university academic roles. Professor Quinlivan currently works as a public obstetrician at Canberra Hospital, in private practice at Barton Gynaecology, as part time Member of the AAT (General and SSCSD), senior academic for two Universities and Director of the Professional Service Review. She has been member of the RANZCOG assessment subcommittee since 2004 and is College Councillor for the ACT.
Dr Envoy has extensive private gynaecological and obstetric practice experience (8000 deliveries over 30 years, 5000 gynaecological procedures ). Dr Envoy has been a staff specialist at 2 public teaching hospitals (Flinders Medical Centre for 5 years and 30 years at Women's and Childrens Hospital). Dr Envoy is an examiner for RANZCOG exams. Dr Envoy has been a member of the RANZCOG Expert Witness panel since 2001. Dr Envoy is currently Director of Clinical Services at Flinders Reproductive Medicine, Senior Lecturer at Flinders University and vice chairman of the Southern Adelaide Human Research and Ethics Committee.
(Exhibit G page 2)
28Professor Quinlivan's written expert evidence consists of:
(a)a witness statement dated 6 December 2015;
(b)an independent opinion provided to Sarah Clifford of AHPRA dated 6 December 2015; and
(c)a witness statement dated 19 July 2017.
29Dr McEvoy's written evidence consists of:
(a)a report dated 22 March 2017
(b)a supplementary report dated 6 April 2017; and
(c)a report dated 21 October 2017.
30Senior Member Spillane conducted an expert conferral with Professor Quinlivan and Dr McEvoy.
31As a result of this conferral, the experts produced the Joint Statement (Exhibit G).
32As a result of the conferral the experts agreed that the relevant expert issues were:
a)handover;
b)uterine hyperstimulation;
c)consent;
d)catheterisation of the bladder; and
e)when to abandon assisted vaginal delivery.
(Exhibit G)
33Some of the conclusions of the experts were dependant on the Tribunal's findings of fact which are resolved below. The Tribunal notes that a number of the facts relied upon by Dr McEvoy in preparing his report were not found by the Tribunal. For example, the Tribunal found, for the reasons stated below, that Dr Basu had been informed of previous vacuum pulls contrary to Dr McEvoy's statement that Dr Basu had not been informed of the previous vacuum pulls (Exhibit F page 17).
34The Tribunal further notes that due to, amongst other factors, significant inconsistencies in Dr McEvoy's evidence, the Tribunal ultimately preferred the evidence of Professor Quinlivan. Further, the Tribunal finds that, for the reasons expressed throughout this decision, to the extent that the evidence of Professor Quinlivan differs from the evidence of Dr McEvoy, the Tribunal prefers the evidence of Professor Quinlivan.
35The expert witnesses gave concurrent oral evidence at the hearing. Professor Quinlivan's evidence was given via video link.
An explanation of relevant terms
36Before turning to an analysis of the facts it is useful to provide an explanation of the relevant terms and to detail some of the expert evidence so as to put the facts that follow in context.
CTG
37A cardiotocograph (CTG) monitor produces, both digitally and by way of a continuous print-out on a paper trace, a measure of the FHR, shown on a graph at the top of each page of the CTG trace and the uterine contractions (shown on a graph beneath). The time is shown at regular intervals on each page of the CTG trace (see Exhibit A page 10 on; see also Dr Basu's description of the CTG, Exhibit E page 17 para 90)
FHR
38A normal foetal heart rate (FHR) is between 120 and 160 beats per minute (BPM).
Foetal bradycardia
39A foetal heart rate pattern of less than 100 BPM for more than five minutes constitutes foetal bradycardia (see Exhibit C page 44).
Occipital Posterior Position 'OP'
40'OP' means that the foetus' head is in the occipital posterior position, that is, the part of the foetal head which had the larger diameter was presenting. This usually makes it more difficult to deliver the baby vaginally (Exhibit E page 19 paras 102103).
Partogram
41The Tribunal notes that some of the witnesses refer to the 'partogram' which is a term for the 'Progress Notes' once labour commences. The document which details the progress of the Patient's labour in the Book of Documents, Exhibit A, is headed 'Progress Notes' and so the Tribunal has used this term in preference to 'Partogram'.
Spines
42The ischial spines, commonly referred to as the 'spines' is the narrowest part of the birth canal. The attachment at Figure 1 shows the various positions of the foetus head in relation to the spines.
Outlet forceps delivery or low forceps delivery
43An outlet forceps delivery or a low forceps delivery means that the presenting part of the foetus is at least plus 2 spines.
Syntocinon
44Syntocinon contains synthetic oxytocin, the hormone that stimulates uterine contractions.
Upper mid cavity level
45When the foetus' head is at spines, that is, at 0, (see Figure 1), the foetus is at the upper mid cavity level.
Uterine hyperstimulation
46Professor Quinlivan's evidence was:
4.It is well recognised by specialists in the field of Obstetrics and Gynaecology that uterine hyperstimulation exists when there are:
(a)more than 4 contractions in 10 minutes over a 30 minute period; or
(b)contractions lasting more than 2 minutes in duration; or
(c)contractions of normal duration occurring within 60 seconds of each other.
5.In a normal labour, when uterine hyperstimulation is not present, contractions should occur 3 to 4 times every 10 minutes and last for approximately 30 to 60 seconds. This allows a sufficient number of contractions to achieve progress in labour, but also allows sufficient relaxation time between contractions for the fetus to recover.
6.When uterine hyperstimulation is present, there is inadequate time between contractions during which the fetus can recover from contractions. This can lead to fetal heart rate abnormalities that can be observed on a CTG trace.
7.The most common cause of uterine hyperstimulation is Syntocinon Infusion.
…
12.The impact of uterine hyperstimulation is well documented. In normal labour, during a uterine contraction, blood flow through the uterus is reduced. This, in turn, reduces the delivery of oxygen to the fetus via the uteroplacental unit. When the uterus relaxes between contractions, there is a recovery period. Blood flow through the uterus returns to normal and the delivery of oxygen to the fetus via the uteroplacental unit recovers. Because there were six contractions every ten minutes (uterine hyperstimulation) the fetus spent significantly more time exposed to contractions, reduced uterine blood flow and reduced oxygen delivery via the uteroplacental unit. In addition, there was a corresponding significant reduction in the amount of time available for recovery between contractions. Over a period of more than 30 minutes, even in a healthy fetus, the excessive contraction time and reduced recovery time can lead to abnormalities in the fetal heart rate and decelerations. However, if uterine hyperstimulation is stopped, the fetal heart rate of a healthy fetus will usually recover.
(Exhibit D page 2932; see also Exhibit A page 117 Management of Uterine Hyperstimulation)
47Dr McEvoy (Exhibit F page 47) agreed with Professor Quinlivan's explanation of uterine hyperstimulation.
Handover
48When a health practitioner takes over from another health practitioner who has been in charge of a delivery, the process for exchanging information is known as a 'handover'.
Guidelines
49Significant criticisms of Dr Basu's conduct are that, in the circumstances: he should have diagnosed uterine hyperstimulation and then acted accordingly; that there were excess vacuum pulls in attempting to deliver the foetus and that he should have proceeded to a caesarean section sooner. Therefore it is useful at this point to set out the relevant guidelines that were applied at the Hospital and those issued by other relevant bodies concerning vacuum assisted deliveries and instrumental deliveries.
50The guidelines (Guidelines) are set out in the following order:
a)Rockingham Peel Group Clinical Practice - those that applied directly to the Hospital;
b)King Edward Memorial Guidelines - Perth's major teaching maternity hospital; and
c)The RANZCOG Clinical Guidelines in Intrapartum Fetal Surveillance.
Rockingham Peel Group Clinical Practice (the Hospital Guidelines)
51The Hospital is part of the South Metropolitan Health Service operated by the Department of Health. The relevant guide for vacuum extraction (obstetrics) at the Hospital are found in the Rockingham Peel Group Clinical Practice Manual CODE OBS:014. The guidelines were endorsed by the Clinical Practice Committee and relevantly provided:
(Obstetric) Guideline
ALERT
This is a medical procedure and is only ever performed by a Medical Officer who has been deemed competent in the accredited skills required to conduct vacuum extraction assisted births (King Edward Memorial Hospital [KEMH], 2011).
Where the head is palpable abdominally or the presenting part is not visible, review by the Obstetric Consultant on call is indicated and delivery in theatre may be necessary. This procedure is to be abandoned if:
•There are three contractions with no descent of the bony head OR
•The seal on the cup is broken three times OR
•Delivery of the fetal vertex is not accomplished within a maximum of 20 minutes (Agency for Healthcare Research and Quality, 2011; KEMH, 2011).
Vacuum extraction may be undertaken on Birthing Suite when the fetal bi-parietal diameters are below the ischial spines at +1 or +2 station allowing a mid to low pelvic cavity extraction.
…
•Preparation of mother:
-Clear explanation should be given and informed consent gained.
-Appropriate analgesia is administered.
-Maternal bladder is emptied using an in-out catheter. An indwelling catheter should be removed or the balloon deflated.
•Preparation of staff:
-Operator must have the knowledge, experience and skill necessary to perform this procedure.
-Adequate facilities are available (equipment, bed, lighting).
-Back-up plan in case of failure to deliver - consider delivery in theatre if appropriate. Consultant obstetrician backup must be readily available.
-Anticipation of complications that may arise (e.g. shoulder dystocia, PPH).
-Personnel present trained in neonatal resuscitation. (Pediatrician to attend delivery where indicated by suspected fetal distress or potential for shoulder dystocia anticipated).
(Agency for Healthcare Research and Quality, 2011).
…
Procedure
•Informed consent for the procedure is obtained and documented.
•Abdominal palpation by the Medical Officer to ensure head is deeply engaged.
•Ensure appropriate personnel are available - a second midwife is required for all assisted deliveries whether on Birthing Suite or in Theatre.
•Consider analgesia.
•Place the woman in lithotomy position.
•Ensure the bladder is empty.
•Monitor the fetal heart throughout the procedure by continuous Cardiotocograph (CTG).
•The Medical Officer will perform a vaginal examination to confirm the cervix is fully dilated and determine the position of the fetus and station in relation to the ischial spines.
•Episiotomy should be considered but may not be necessary.
•During a contraction apply gentle steady traction at right angles to the cup, with the axis of traction following the pelvic curve during a contraction. (Maternal expulsive effort during the contraction aids traction and descent).
•The midwife is to:
-Inform the Medical Officer when the patient has a contraction.
-Document the time of application of the suction cup and number of pulls required. (The Medical Officer is to advise the midwife each time that traction is commenced and also ceased).
-Monitor the fetal heart after each contraction/pull.
-Encourage the woman to push with each contraction.
•Abandon the procedure if there is:
-Difficulty in application of the cup.
-No evidence of progressive descent with each pull.
-No evidence of imminent delivery following three pulls of a correctly placed cup by an experienced operator.
-Cup detachment three times.
-More than 15-20 minutes has elapsed since initial time of application.
(Exhibit A pages 100102; Tribunal emphasis in bold)
King Edward Memorial Hospital Guidelines
52The King Edward Memorial Hospital Clinical Guidelines for Obstetrics and Midwifery relevantly provided:
INSTRUMENTAL VAGINAL DELIVERY
THIS GUIDELINE CONTAINS INFORMATION ON INSTRUMENTAL FORCEPS AND VACUUM BIRTHS, AND PUDENDAL NERVE BLOCK.
INSTRUMENTAL VAGINAL BIRTH QRG
PREPARATION:
1.Prepare equipment, explain the procedure to the woman, gain consent, assess analgesia requirements, check contraindications & empty the woman's bladder.
2.Notify Labour Birth Suite Midwifery Coordinator & advise Paediatrician to attend birth.
3.Perform an abdominal palpation and vaginal examination & position the woman in dorsal lithotomy.
4.Monitor fetal heart rate during procedure.
5.Proceed with either forceps or vacuum procedure below. Evaluate for episiotomy during procedure.
FORCEPS:
a.Consider trial of forceps in theatre if high risk of failure.
b.Insert the left blade into the left side of vagina while guarding the vaginal tissue with other hand, insert the right blade with right hand. Note the time of forceps application.
c.Assess the blades to ensure correct application & lock the blades together when positioned correctly.
d.Apply traction during a contraction while the woman bears down (unless contraindicated), following the pelvic curve. The dominant hand gives outward pull while the other hand gives continuous downward pressure.
e.Remove forceps in opposite order to the application. Note time forceps removed.
VACUUM:
a.Apply vacuum cup with centre at or behind the flexion point over the sagittal suture. The flexion point is 3cm in front of the posterior fontanelle. Check vacuum position/application & no cervical or vaginal tissue is in the cup.
b.Apply traction. Only obstetric medical staff competent in assisted birth are to undertake or supervise the procedure.
-Note the time the cup is applied/traction initiated & turn on suction pressure as per medical practitioner (up to max. 80kPa). Chignon is formed after 1-2 minutes.
-During a contraction & with maternal expulsive effort (unless contraindicated), apply gentle steady traction at right angles to the cup, with the axis of traction following pelvic curve during the contraction. Note the time of each traction pull.
-Abandon the procedure if difficult application, no progressive descent, not imminent birth within 3 pulls, cup detachment 3 times, or >15-20 minutes since cup application.
-Cease suction & remove vacuum cup when the jaw is visible, birth the baby.
…
Forceps delivery and Vacuum extraction birth
KEY POINTS
…
3.The threshold for abandoning an instrumental birth differs between clinicians and clinical situations. Assisted instrumental delivery should be abandoned if there is:
•difficulty in applying the instrument
•no evidence of progressive descent with each pull
•no evidence of imminent birth following three pulls of a correctly placed instrument by an experienced operator.
•birth is not imminent within a reasonable period of time (e.g.15-20 minutes).
…
Vacuum Extraction Specific Key Points
…
7.To decrease risk of adverse events correct application of the cup to avoid disengagement, limiting time application to 20 minutes, and limiting the number vacuum pulls to three contractions is recommended. There must be descent of the presenting part with each pull.
…
PROCEDURE
ADDITIONAL INFORMATION
4 Abdominal palpation
Perform an abdominal palpation, followed by a bimanual vaginal examination. Ascertain the side of the fetal back and limbs and the side of the fetal heart (this is best done by placing the doptone in the midline and angulating to either side to detect where it is louder). When the fetal back is on the left, the position is twice as likely to be OA than OP. When the fetal back is on the right, the position is twice as likely to be OP than OA.
The head should be engaged (the maximum diameter of the fetal head having entered the pelvic inlet) and assisted delivery should not be performed if the head is >1/5 palpable abdominally. Engagement is determined both by abdominal and vaginal examination.
5 Maternal positioning
Place the woman in dorsal lithotomy position
6 Bladder care
• Ensure the bladder is empty
A full bladder may inhibit progress of labour.
See Clinical Guideline, O&M: Postnatal: Bladder Care for information regarding bladder management post instrumental vaginal deliveries.
7 Fetal heart rate monitoring
Monitor the fetal heart rate during the procedure
See Clinical Guideline. O&M. Intrapartum;-Fetal Heart Monitoring (Intrapartum)
8 Vaginal examination
Perform a vaginal examination to determine:
• dilatation
• position
• station
• moulding
• presence of caput.
• Overall size of the pelvis
• If the position on vaginal examination is not in agreement with the expected findings on abdominal examination, an ultrasound scan should be performed.
Allowance should be made for. extensive caput and/or moulding of the fetal head. If substantial caput is present soft parts of the fetal head may be felt below the ischial. spines, but the leading bony part of the head may be above the ischial spines.
This will influence if an instrumental delivery can be safely performed.
Applying traction
…
9.6 Abandon the procedure if there is:
• Difficulty in application of the instrument
• No evidence of progressive descent with each pull
• No evidence of imminent birth following three pulls of correctly placed instrument by an experienced operator.
• Cup detachment three times
• More than 15 to 20 minutes has elapsed since the time of application.
9.7 Evaluate the need for episiotomy.
Discontinue traction between contractions or if an audible hiss is heard indicating a loss of vacuum. Rotating or side-to-side movements should be avoided as this increases the risk for cup detachment and vaginal wall injury.
The rapid negative pressure application method, rather than increasing pressure in a stepwise method, reduces time when a rapid delivery is required, with no difference to maternal or neonatal outcomes.
An adequate chignon is formed within 2 minutes of creating the vacuum, and traction may be commenced after 1 minute without effecting the efficiency or safety.
With maternal expulsive effort during the contraction the accoucheur applies traction.
Prolonged traction may lead to intracranial injury.
The majority of malpractice litigation results from failure to abandon the procedure at an appropriate time. Increased risk of neonatal trauma and admission to special care units are associated with excessive pulls (>3) and sequential use of instruments.
With effective uterine contractions and maternal expulsive effort observational studies have shown almost all vacuum extraction deliveries can be completed within 15minutes.
Routine episiotomv does not reduce and may increase the incidence of maternal trauma.
(Exhibit A pages 104-113; Tribunal emphasis in bold)
RANZCOG Clinical Guidelines in Intrapartum Fetal Surveillance
53The Royal Australian and New Zealand College of Obstetricians and Gynaecologists (RANZCOG) also published guidelines relating to foetal heart rate patterns.
54RANZCOG Clinical Guideline for Intrapartum Fetal Surveillance 2014 Guidelines relevantly provided:
Management of fetal heart rate patterns considered suggestive of fetal compromise
Recommendation 8
Grade and supporting references
In clinical situations where the fetal heart rate pattern is considered abnormal, immediate management should include:
• identification of any reversible cause of the abnormality and initiation of appropriate action (e.g. maternal repositioning, correction of maternal hypotension, rehydration with intravenous fluid, cessation of oxytocin and/or tocolysis for excessive uterine activity) and initiation or maintenance of continuous CTG.
• Consideration of further fetal evaluation or delivery if a significant abnormality persists.
• Escalation of care if necessary to a more experienced practitioner.
A
42
(Level I)
(Exhibit C page 43)
Management of fetal heart rate patterns considered suggestive of fetal compromise
Good Practice Notes
Grade and supporting references
The following features are likely to be associated with significant fetal compromise and require immediate management, which may include urgent delivery:
• Prolonged bradycardia (<100 bpm for >5minutes).
• Absent baseline variability (<3 bpm).
• Sinusoidal pattern.
• Complicated variable decelerations with reduced or absent baseline variability.
• Late decelerations with reduced or absent baseline variability.
((Exhibit C page 44)
Uterine hyperstimulation
Recommendation 10
Grade and supporting references
Uterine hyperstimulation is defined as tachysystole or uterine hypertonus in the presence of fetal heart rate abnormalities.
Appropriate management of uterine hyperstimulation should include:
• continuous cardiotocography;
• reducing or ceasing oxytocin infusion;
• maternity staff remaining with the woman until normal uterine activity is observed;
• consideration of tocolysis; or
• consideration of urgent delivery.
Maternity care providers should be familiar with and have a protocol for acute tocolysis (relevant to the level of service) in the event that uterine hyperstimulation occurs.
Tocolytic regimens available may include:
• Terbutaline, 250 micrograms intravenously or subcutaneously (Grade C)
• Salbutamol, 100 micrograms intravenously
• GTN spray, 400 micrograms sublingually
Consensus-based recommendation
Terbutaline recommendation
C
44
(Level II)
(Exhibit C page 45)
55The grade and supporting references referred to in the right hand column above are explained in the RANZCOG Guidelines under the heading 'Grading of recommendations'.
Grading of recommendations
Recommendation Category
Description
Evidencebased recommendation
A
Body of evidence can be trusted to guide practice
B
Body of evidence can be trusted to guide practice in most situations
C
Body of evidence provides some support for recommendation(s) but care should be taken in its application
D
The body of evidence is weak and the recommendation(s) must be applied with caution
Consensusbased category
Consensusbased recommendations based on expert opinion where the available evidence was inadequate or could not be applied in the Australian and NZ heathcare context
Good Practice Note
Practical advice and information based on expert opinion to aid in the implementation of the Guideline
Wording of recommendations
Where the words 'use', 'recommended' or 'should' appear in recommendations in this Guideline, this Working Party judged that the benefits of the recommended approach clearly exceeded the harms, and that the evidence supporting the recommendation was trusted to guide practice.
Where the words 'consider', 'might' or 'could' appear in recommendations in this Guideline, either the quality of evidence was insufficient to make a strong recommendation, or the available studies demonstrated little clear advantage of one approach over another, or the balance of benefits to harm was unclear.
Where the words "not recommended" appear in recommendations in this Guideline, there was either a lack of appropriate evidence, or the harms outweighed the benefits.
(Exhibit C page 39)
RANZCOG Clinical Guidelines instrumental birth
56RANZCOG techniques of instrumental vaginal birth relevantly provided:
Instrumental vaginal birth involves the use of forceps or the vacuum extractor to allow the operator to assist the natural forces along the birth canal which are created by uterine contractions and maternal bearing down effort. Appropriate positioning of forceps or vacuum is important for maternal and fetal safety and for effective traction. In some cases, rotation of the fetal head may be required to make the position of the vertex more favourable for descent.
Recognition of when it is appropriate to abandon the procedure and consider an alternative method of birth is vital. RCOG state that 'thebulk of malpractice litigation results from failure to abandon the procedure at the appropriate time, particularly the failure to eschew prolonged, repeated or excessive traction efforts in the presence of poorprogress'
…
i. Time
Vacca recommends an upper limit of 20 minutes from first application of the cup. Where birth is not imminent after 15 minutes, operators should evaluate whether further traction is warranted, and consider recourse to caesarean section. It should be noted that where the head is deeply engaged in the maternal pelvis (and macrosomia is not anticipated) that completion of vaginal birth by vacuum extraction or forceps may still be safer than a caesarean section.
ii. Number of pulls
Many experienced operators suggest a maximum of three pulls without descent of the skull (not scalp)(defined as three contractions, even if there are multiple maternal 'pushes' within each contraction), although more pulls may be acceptable if the head has descended to the level of the pelvic floor or perineum especially if birth is attempted without episiotomy.
iii. Cup detachments
Cup detachment should not be regarded as a safety feature of the vacuum extractor, as the rapid decompression may result in vessel damage and predispose to subgaleal haemorrhage. The acceptable number of detachments will depend on whether detachment was due to equipment failure, or to poor application and/or excessive traction. Upto three detachments would generally be considered acceptable, but reapplication of the cup on each occasion should only be considered where there has been definite progress with preceding pulls, or the head is on the perineum.
(Exhibit B pages 147 and 149)
The medical personnel involved in the delivery
57Dr Basu is a consultant obstetrician and gynaecologist. At the material time Dr Basu practised in that capacity at the Hospital.
58The Hospital utilises the services of 'GP obstetricians' (general practitioners who have a Diploma in Obstetrics) to provide obstetric services at the Hospital. The Hospital's consultant obstetricians, including Dr Basu, were available on call to assist GP obstetricians and midwives in complicated deliveries.
59Dr Jose was an experienced GP obstetrician. He completed a Diploma in Obstetrics at the Royal College of Obstetricians and Gynaecology in 1991. He worked as a GP obstetrician at the Hospital from 1992 to 2016 and had admitting rights (Jose Exhibit D, page 49 paras 17).
60Dr Jose provided antenatal care to the Patient in relation to what was her first pregnancy (primigravida) (Exhibit A page 8; Exhibit D page 49 paras 89).
61In September 2014, Nurse/Midwife Hammond was the coordinator of the labour ward at the Hospital (Hammond Exhibit D, page 12 paras 24). In crossexamination, Nurse/Midwife Hammond confirmed that she had done 'hundreds of deliveries' (ts 50, 27November 2017). The Tribunal has inferred from her position and her number of deliveries that she was a capable and experienced nurse/midwife. No suggestion was made to the contrary.
62Midwife Wrench was the primary midwife for the Patient's delivery (Hammond Exhibit D, page 12 para 6). Although no details were provided of her experience, the Tribunal has inferred from her position that she was a capable and experienced midwife. No suggestion was made to the contrary.
The Patient's admission
63In September 2014 the Patient, a 25 year old primigravida, was admitted to the Hospital under the care of Dr Jose to have her labour induced due to gestation continuing five days past her due date (Exhibit A page 47; Patient Exhibit D page 42 para 1; Jose Exhibit D page 49 para 13.
What happened in the delivery suite?
64The critical factual events in this case all occurred at the Hospital in the delivery suite. The events in the delivery suite can be divided into three phases:
1)prior to Dr Jose's arrival for delivery at 17:24;
2)after Dr Jose's arrival and prior to Dr Basu's arrival; and
3)after Dr Basu's arrival at 17:52.
65At about 18:15, Dr Basu decided to transfer the Patient to the operating theatre one floor up for a caesarean section. The Patient was on the operating table at 18:35. The caesarean section commenced at 18:43 and the baby was delivered at 19:01.
Who was in the delivery suite?
66The following persons were present in the delivery suite at various times:
a)the Patient;
b)Dr Jose;
c)Midwife Wrench
d)Nurse/Midwife Hammond;
e)the Patient's mother;
f)the Patient's partner; and
g)Nurse/Midwife Hammond.
67Each of these persons' witness statements appear in Exhibit D.
68The Patient's sister may also have been present (Hammond Exhibit D, page 12 para 9; Patient Exhibit D, page 42 para 1). The sister did not give evidence. Nothing turns on the fact that she did not.
69Dr Basu was also present in the delivery suite. His witness statement is Exhibit E.
70Dr Basu provided a photograph of the delivery suite as he says it was set up when he arrived (Exhibit C page 1).
71The names and positions of various items are identified in the photograph.
Conflicts in evidence
72There are a number of conflicts in the factual evidence between Dr Basu and the other persons in the delivery suite as to what occurred between Dr Basu's arrival in the delivery suite and when the Patient was taken to theatre for an emergency caesarean. Of particular significance is whether Dr Basu was informed of previous vacuum pulls and the use of forceps to deliver the foetus prior to his arrival in the delivery suite at 17:52.
Approach to reasons
73The reasons that follow are set out in chronological order. Where possible, the Tribunal has interspersed the expert evidence. So far as possible, the Tribunal has endeavoured to maintain a coherent narrative.
Prior to Dr Jose's arrival for delivery at 17:24
74At about 10:15 am on the delivery day, a CTG was connected to the Patient to monitor the foetal heartbeat (Exhibit A - CTG trace page 10).
75Continuous monitoring of the FHR and the Patient's uterine contractions commenced at 10.15am (Exhibit A - Progress Notes page 47, CTG trace page 10).
76At 10.38 on the delivery day, Dr Jose performed an artificial rupture of membranes on the Patient, and an intravenous drip was set up to bring on the Patient's contractions (Exhibit A - Progress Notes page 47).
77At 11:30 am Syntocinon was administered to the Patient for the first time. Syntocinon was administered at gradually increasing dosages, starting from 12mL/hour (Exhibit A Progress Notes page 47; Jose Exhibit D page 49 paras 14 16).
78Midwife Wrench took over the Patient's care at about 12:40 on the delivery day. At that time, the Patient had four contractions per 10 minutes and was receiving Syntocinon at a dose of 48 mL/hour. The FHR was 130 BPM (Wrench Exhibit D, page 19 paras 67; Exhibit A - Progress Notes page 53).
79At 14:35, the Patient received an epidural in situ (Exhibit A Progress Notes page 54).
80The Progress Notes record that at 15:00 'FHR 135 bpm, variability normal, no accels, variable decels' (Exhibit A Progress Notes page 54).
15:12
81In the Progress Notes Midwife Hammond noted that the FHR was 135. She noted 'variable decels? late', that is, querying whether the CTG trace showed variable decelerations (abrupt decreases) ('late decelerations') on the CTG Trace 'which were becoming deeper and wider apart and there was variability' in the FHR with each contraction (Wrench Exhibit D, pages 19-20 para 9; Exhibit A -Progress Notes page 54, CTG trace page 21). 'Late decelerations' refer to decreases in the foetal heart rate that occur after a uterine contraction.
82When Midwife Wrench observed decelerations in the FHR at 15.12 pm, she changed the Patient's position (Exhibit A Progress Notes page 54, CTG trace page 21).
15:27
83At 15:27, Midwife Wrench stopped the Syntocinon and rang for assistance (Wrench Exhibit D, page 20 para 10; Exhibit A pages 54 para 22).
15:30
84The last recorded entry in the Vaginal Examination Record (Exhibit A page 52) was at 15:30. The entry was by Midwife Wrench.
15.40
85At 15:40, Midwife Wrench rang a bell to call for Nurse/Midwife Hammond who responded to that call and attended in the Patient's delivery suite. An intravenous fluid bolus was administered to the Patient. The FHR recovered (Exhibit A page 54). The Progress Notes record that this entry was written in retrospect.
86When Nurse/Midwife Hammond arrived, Midwife Wrench performed a vaginal inspection and noted 'baby station was minus 1, the head was deflexed, and the baby was in the occipital anterior position' (Wrench Exhibit D page 20 para 12; Exhibit A page 52 vaginal examination). The Tribunal notes that both Dr's Jose (see Exhibit A Progress Notes page 56, 17:46) and Basu stated that the baby was in the occipital posterior position (see below).
87A further foetal strap electrode (FSL) was applied to assist monitoring of the FHR (Exhibit D page 20 para13; Exhibit A Progress Notes page 54).
88The FHR was 58 BPM (Exhibit A page 54).
15:45
89At 15:45, Dr Jose was called and updated with events including the decelerations in the FHR. He gave instructions to stop the Syntocinon until 16:00 and if the FHR was normal, resume at 24mL/hour FHR 135 (Wrench Exhibit D, page 20 paras 1415; Exhibit A Progress Notes page 54). Nurse/Midwife Hammond left the birthing suite (Exhibit D page 20 para 16).
16:00
90At 16:00, Syntocinon was recommenced at 24 mL/hour, FHR 142, CTG trace showed normal variability (Wrench Exhibit D, page 20 para 17; Exhibit A Progress Notes page 56).
16:35
91Syntocinon was increased to 36mL/hour (Wrench Exhibit D page 20 para 19; Exhibit A Progress Notes page 55).
17:00
92Syntocinon was decreased to 24mL/hour. The FHR was 125 BPM decelerating to 75 BPM with contractions (Wrench Exhibit D page 21 para 17; Exhibit A Progress Notes page 55, CTG trace page 25).
17:05
93The FHR dropped to 55 BPM; the Patient was placed on the bed and Nurse/Midwife Hammond was called (Wrench Exhibit D page 21 para 22; Exhibit A Progress Notes page 55, CTG trace pages 2526). Nurse/Midwife Hammond attended the birthing suite shortly after the call (Wrench Exhibit D page 21 paras 2223; Exhibit A Progress Notes page 55).
94Nurse/Midwife Hammond's evidence is that when she entered the birthing suite everything was calm. The CTG trace was good in between contractions with good variability (Hammond Exhibit D page 12 para 8).
17:10
95Midwife Wrench performed a vaginal examination; the Patient was fully dilated and the baby was at the spines + 1 Station. The FHR was slow to recover. Dr Jose was asked to attend (Wrench Exhibit D, page 21 paras 2425; Hammond Exhibit D, page 12 paras 67; Exhibit A Progress Notes page 55). Midwife Wrench notes that 'there was deceleration to 55 BPM with contractions. It did return to baseline and was not persistent bradycardia, but was slow to recover' (Exhibit D page 21 para 25).
96The Tribunal notes that Dr Jose recorded the foetus as being at spines, that is, 0, when he completed a vaginal inspection shortly after his arrival.
97Dr Jose states that he was advised that 'there was some deceleration in the fetal heart rate' (Exhibit D page 49 para 21).
17:15
98The Patient was placed in the birthing position, that is, the lithotomy position. The FHR was 130 BPM. Some external signs were evident (Hammond Exhibit D, page 21 para 26; Exhibit A Progress Notes page 55). Nurse Wrench's evidence is that this means that 'the baby was moving down slightly' (Exhibit D page 21 para 26).
Immediately before Dr Jose's arrival
17:24
99Immediately before Dr Jose entered the delivery suite at 17.24 (Exhibit A Progress Notes page 55):
a)the Patient was in the lithotomy position (Jose Exhibit D, page 50 para 26; Exhibit A page 55);
b)the base of the bed had been removed (Jose Exhibit D, page 50 para 27);
c)a CTG machine was next to the bed (Jose Exhibit D, page 50 paras 2931) and connected (Exhibit A CTG trace page 10);
d)there was an instrument/birth trolley between the bed and the external wall (Jose Exhibit D, page 50 para 32);
e)Nurse/Midwife Hammond and Midwife Wrench were in the delivery suite (Jose Exhibit D page 50 para 33); and
f)the Patient's partner and mother, and probably sister, were also in the delivery suite (Hammond Exhibit D, page 12 para 8).
After Dr Jose's arrival and before Dr Basu's arrival
100Dr Jose arrived in the delivery suite at 17:24 (Hammond Exhibit D, page 13 para 16; Exhibit A Progress Notes page 55).
101Midwife Wrench's evidence is that she or Nurse/Midwife Hammond gave Dr Jose a handover including that the CTG trace showed variable decelerations and that the Patient was fully dilated (Wrench Exhibit D, pages 2122 para 27).
102Dr Jose's evidence is that he performed a vaginal inspection (Jose Exhibit D, page 50 para 35) and assessed the foetus as suitable for a vacuum assisted delivery (Jose Exhibit D, page 50 para36).
103Nurse/Midwife Hammond's evidence is that although she cannot recall, Dr Jose must have performed a vaginal inspection in order to apply the vacuum cup (Hammond Exhibit D, page 13 para 11; see also Wrench Exhibit D, page 22 para 28).
17:28
104At 17:28, an 'in/out catheter' was used on the Patient (Exhibit A page 55). An in/out catheter is passed into the bladder to drain it of urine and then removed, rather than left in situ. It was important that the bladder was emptied before any attempts were made to deliver the foetus by use of vacuum extraction as this reduced the risk of injury to the Patient's bladder (see Guidelines above).
105Midwife Wrench recorded events in the Progress Notes and also annotated the CTG trace (see Exhibit A pages 55-56; Wrench Exhibit A, page 22 para 34).
106Dr Jose's evidence is that Nurse/Midwife Hammond was calling out the total number of pulls with each pull (Exhibit A page 55 para 42). The evidence of Midwife Wrench is that she was calling out the number of pulls (Exhibit D page 22 para 33). Nurse/Midwife Hammond confirmed that Midwife Wrench was calling out the pulls (Exhibit D page 13 para 133). The Patient recalls the nursing staff calling out some numbers (Patient Exhibit D, page 43 para 11). Exactly who was calling out the number of pulls was probably irrelevant to Dr Jose.
Delivery attempted due to suspicious CTG.
P/A (per abdominal) examination:
Long lie. (fetus lying longitudinally)
Ceph. (cephalic presentation head first) 0/5
(fetal head not palpable)
V/E (vaginal examination):
Fully dilated (cervix), effaced (thinning or stretching of the cervix prior to delivery), M- (membranes absent) PP-0 (presenting point at Station 0 the foetal head has reached the point where it was level with the mother's ischial spines).
ROT (right occipital transverse fetus facing mother's left thigh)
Caput (++) (fluid collection in foetal scalp).
Moulding (+) (formation of foetal skull was normal). Pelvis seems adequate (to deliver the baby).
Rotational ventouse attempted in birth suite.
Progressive descent noted but cup slipped off x 2 (twice) 2° (secondary) to caput.
RML (right mediolateral) episiotomy
Due to multiple attempts for trial/examination in theatre for C/S (caesarean section) or instrumental birth.
(Dr Basu has inserted explanations of the terms used by him in his witness statement)
499Dr Basu's explanation for not making progress notes before this is:
170.By that time, I had been in the birth suite for approximately 23 minutes, but I had not made any notes in the progress notes of my findings on the examinations which I had performed or of what I had done in attempting to deliver the baby.
171.That was because, from the time I entered the birth suite at 1752 hours, I had been fully engaged in dealing with what I considered an urgent situation, and I had simply not had the time to make my notes.
500Dr Basu stated:
226.I made that note at 1815 hours, after I had made my last attempt to deliver the fetus vaginally in the birth suite, and while the Patient was being transferred from the birth suite to the operating theatre.
227.My note is a summary of what I had done and what I found in the period of 23 minutes during which I had been in the birth suite, examining and assessing the Patient and the feuts, and attempting to deliver the fetus.
228.In particular, my note details all my findings upon the vaginal examination.
229.I accept that I did not record in the note the exact time at which I performed the vaginal examination or at what stage of the delivery I performed the vaginal examination.
230.However, I consider that my note otherwise gives a comprehensive account of my involvement in the delivery to that point, and my findings on the vaginal examination.
(Exhibit E pages 45-46)
501Professor Quinlivan has explained the need for notetaking. The Tribunal accepts Professor Quinlivan's evidence. The failure to take notes or cause notes to be taken, or to take adequate notes, is also a breach of section 8.4 of the Code of Conduct.
502The Tribunal therefore finds that Dr Basu's conduct was substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience. Dr Basu engaged in professional misconduct.
503The Progress Notes indicate the following further sequence of events:
18:18 18:25 18:30 18:35
[Syntocinon] off FHR 97 bpm xx pulse 113 bpm 0 sars 100%
Consents signed by Patient for anaesthetist[.]
TF [transferred] to OT [operating theatre]
In theatre. [Patient] on the theatre table now. Paeds [paediatricians] present in theatre[.]
(Exhibit A - Progress Notes page 57)
504Nurse/Midwife Hammond's evidence is that Midwife Wrench prepared the Patient for Theatre and asked her to sign the consent forms (Hammond Exhibit D, page 16 para 51).
In the operating theatre
505Dr Basu's evidence (Exhibit E page 3234 paras 177-186) was that:
177.In the operating theatre, I conducted a vaginal assessment and noted that the top of the fetal head was visible upon parting the labia, which meant that there had been further descent of the fetal head since my attempts at delivering the baby in the birth suite.
178.Hence, I considered that an assisted vaginal birth was still a possibility.
179.I also wanted to assess whether the fetal head would need to be pushed up from below, to make it easier for me to deliver the baby by caesarean section.
180.I instructed the Patient to push, which she did, but no further descent of the fetal head was evident.
181.Accordingly, I decided to proceed with the caesarean section as a 'Category 1 Procedure', which means that there is immediate threat to the life of the mother or the fetus.
182.In the progress notes, the caesarean section is recorded as having commenced at 1843 hours.
183.During the caesarean section, I asked Dr Jose to push the fetal head from below to aid delivery, and he did that.
184.I still had difficulty in delivering the fetal head at caesarean section as the fetal head was jammed in the pelvis, and I used one blade of a set of Wrigley's forceps as an aid to delivery.
185.I delivered the baby and passed him on to the neonatal resuscitation table.
186.In the progress notes, the baby is recorded as having been delivered at 1901 hours.
506The Progress Notes indicate the following further events:
18:48 19:49
FHR 132 bpm
FRH 164 bpm
Dr Basu positioned for delivery - pp [foetal head] visible on parting labia; client encouraged to push.
VE [vaginal examination] by Dr Basu
No descent noted
FHR 85 bpm
(Exhibit A Progress Notes page 58. See also Wrench Exhibit D page 27 para 18)
507The Progress Notes record that the Patient was on the theatre table by 18.35. At 18:48 a note was made in the Progress Notes that the top of the fetal head was visible on parting the labia. This accords with Dr Basu's statement in Exhibit E para 177 above. Dr Basu states that this meant that there had been 'further descent' of the foetal head since he had been attempting to deliver the baby in the delivery suite. It is apparent from this statement that when the Patient was in the delivery suite, delivery of the foetus was never 'imminent'. This further confirms that Dr Basu should have proceeded to theatre rather than attempt to deliver the foetus in the delivery suite.
Conclusion
508Dr Basu's conduct in the delivery suite as described above and when considered as a whole, demonstrates a series of errors. Fortunately the baby was safely delivered and to date, there have been no adverse consequences for the child. In addition to the individual incidences of professional misconduct as set out above, Dr Basu's conduct as a whole, constitutes professional misconduct.
Orders
1.The Tribunal finds that Dr Abhijit Basu behaved in a way that constitutes professional misconduct for the purposes of the Health Practitioner Regulation National Law (WA) Act 2010 and that Dr Abhijit Basu's conduct was substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience in that Dr Abhijit Basu:
1.1.failed to obtain sufficient information about the Patient and the Patient's treatment to enable continuing care of the Patient;
1.2.failed to ascertain, listen to or correctly interpret information about the Patient and the Patient's treatment that was recorded on the CTG Trace and provided to him by other health practitioners;
1.3.failed to make a handover note in the Patient's clinical notes of information provided to him about the Patient and the Patient's treatment as required by section 8.4 of the Code of Conduct for Doctors in Australia;
1.4.failed to make any attempt to resuscitate the Patient's foetus;
1.5.failed to record or adequately record his findings on the vaginal examination in the Patient's clinical notes as required by section 8.4 of the Code of Conduct for Doctors in Australia;
1.6.failed to explain to the Patient the vacuum extraction procedure that he proposed to perform;
1.7.failed to advise the Patient of alternative procedures to vacuum extraction including a trial of assisted vaginal delivery in theatre or caesarean section;
1.8.failed to obtain the Patient's informed consent to vacuum extraction before attempting vacuum extraction;
1.9.performed the Eighth Traction Pull, Ninth Traction Pull, Tenth Traction Pull, Eleventh Traction Pull and Twelfth Traction Pull when he knew, or ought to have known, that each of those traction pulls should not be performed because:
(a)there had been minimal descent despite seven previous traction pulls made by Dr Jose;
(b)delivery was not imminent despite seven previous traction pulls made by Dr Jose; and/or
(c)it was unsafe to perform any traction pulls because seven traction pulls had already been performed by Dr Jose;
1.10.in the alternative to 1.9, caused a vacuum cup to be applied to the foetal head for longer than five minutes when he knew or ought to have known that a vacuum cup had already been applied to the fetal head for at least 15 minutes;
1.11.in the further alternative to 1.9, despite Midwife Wrench or alternatively Nurse/Midwife Hammond calling out 'Seventh pull, first by Dr Basu' during the Eight Traction Pull:
1.12.in the further alternative to 1.9, after the Tenth Traction Pull failed to discuss with the Patient alternatives to further attempts at vacuum extraction in the delivery suite including a trial of assisted vaginal delivery in theatre or direct recourse to caesarean section;
1.13.in the further alternative to 1.9, performed the Eighth Traction Pull, Ninth Traction Pull, Tenth Traction, Eleventh Traction Pull and Twelfth Traction Pull when there was minimal descent with each pull and when delivery was not imminent after the first three traction pulls;
1.14.performed the Tenth Traction Pull, Eleventh Traction Pull and Twelfth Traction Pull when he knew or ought to have known that it was unsafe to perform those traction pulls because a vacuum cup had been applied to the foetal head for more than 20 minutes;
1.15.prior to attempting forceps delivery, failed to interpret vaginal examination findings correctly in that he did not identify the asynclitic position of the foetal head and wrongly concluded that forceps delivery would be possible when it was not;
1.16.prior to attempting forceps delivery, failed to record or adequately record his findings on vaginal examination in the Patient's clinical notes as required by section 8.4 of the Code of Conduct;
1.17.applied or attempted to apply forceps when he knew, or ought to have known, that there were indications for abandonment;
1.18.in the alternative to 1.17, applied or attempted to apply forceps outside of a theatre when he knew or ought to have known that there were indications for abandonment;
1.19.failed to explain to the Patient the forceps delivery procedure that he proposed to perform;
1.20.failed to advise the Patient of alternative procedures to the forceps delivery including a trial of assisted vaginal delivery in theatre or caesarean section; and
1.21.failed to obtain the Patient's informed consent to forceps delivery before attempting forceps delivery.
2.The Medical Board of Australia is to file and serve its written submissions on penalty and costs by 10 September 2018.
3.Dr Abhijit Basu to file and serve his written submissions on penalty and costs by 1 October 2018.
4.Subject to any further order of the Tribunal, the question of penalty and costs is to be dealt with entirely on the documents.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
JUSTICE J CURTHOYS, PRESIDENT
16 AUGUST 2018
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