Mills v Lee & ors - [2006] NSWSC 1031

No judgment structure available for this case.

CITATION: Mills v Lee & ors [2006] NSWSC 1031

HEARING DATE(S): 07/11/2005 - 08/11/2005, 10/11/2005 - 11/11/2005, 14/11/2005 - 18/11/2005, 21/11/2005 - 22/11/2005, 30/11/2005 - 02/12/2005, 05/12/2005 - 06/12/2005, 08/12/2005 - 09/12/2005, 12/12/2005, 14/12/2005 - 15/12/2005

JUDGMENT DATE :
6 October 2006

JUDGMENT OF: Hislop J

DECISION: (1) Verdict and judgment for the first, second and third defendants; (2) The plaintiff to pay the costs of the first, second and third defendants.

CATCHWORDS: Tort law - Medical negligence - Birth injury - No breach of duty - Causative link not established.

CASES CITED: Neindorf v Junkovic (2005) 80 ALJR 341
Rogers v Whittaker (1992) 175 CLR 479 at 483

PARTIES: Plaintiff - Joshua Adam Mills by his tutor Leslie Mills
First Defendant - Effie Marjorie Lee and Philip George Lee, executors of the estate of the late Eric Bruce Lee
Second Defendant - Dr PT Frost
Third Defendant - Hospital Corporation Australia Pty Limited t/as The Hills Private Hospital

FILE NUMBER(S): SC 20176/02

COUNSEL: Plaintiff - Mr R McIlwaine SC with Mr M Eagle
First, Second and Third Defendants - Mr A Sullivan with Mr J Downing

SOLICITORS: Plaintiff - Velleley & Associates Litigation Lawyers
First, Second and Third Defendants - United Medical Protection

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HISLOP J

6 October 2006

20176/02 Joshua Adam Mills by his tutor Leslie Mills v Effie Marjorie Lee and Philip George Lee Executors of the estate of the late Eric Bruce Lee, Dr PT Frost and Hospital Corporation Australia Pty Limited t/as The Hills Private Hospital

JUDGMENT

Introduction

1 The plaintiff was born of 21 July 1983. He suffers from spastic quadriplegia and brain damage. He alleges his condition is the result of the failure by the defendant medical practitioners to afford proper care and treatment to his mother (“KM”) when she was pregnant with him. Essentially he alleges the defendant medical practitioners failed to detect and treat signs of infection in KM, failed to take regular full blood counts, failed to prescribe and administer steroids, and failed to seek specialist advice and/or transfer KM to a tertiary medical institution in a timely manner. He also alleges the second defendant failed to diagnose a high risk of infection and prescribe and administer antibiotics prophylactically.

2 The plaintiff alleges the third defendant (“the hospital”) was negligent in that it “failed to have a protocol that required general practitioner obstetricians with VMO rights at the hospital to consult with or refer patients to qualified obstetricians and/or tertiary maternity units when complications arose during pregnancy.”

3 The defendants deny breach of duty and deny that, if there was any breach, it was causative of the plaintiff’s condition. The issues for determination by the Court are breach of duty, causation and, in the event the plaintiff is entitled to a verdict, the amount of damages recoverable.

4 The Western Sydney Area Health Service, which had the control and management of Westmead Hospital, was originally named as the fourth defendant in the proceedings. The plaintiff has consented to a verdict and judgment in favour of the fourth defendant.

Liability

Background

5 The following facts, which I accept, were either common ground or not the subject of serious dispute.

6 The second defendant was born in 1926. He graduated MBBS (Syd) in 1950. He did not obtain specialist qualifications as an obstetrician and gynaecologist but for many years conducted an increasingly busy practice which he confined to obstetrics and gynaecology. Over the years he delivered thousands of babies and had had quite a few patients with antepartum haemorrhage. He was appointed an honorary medical officer in obstetrics at Parramatta Hospital in 1954, Fairfield Hospital in 1956 and Auburn Hospital in 1960. He was appointed an honorary medical officer in obstetrics at the hospital in 1970. In 1977 he was recognised by the Specialist Recognition Committee of the Commonwealth Health Department in New South Wales as a “Specialist (Obstetrics and Gynaecology)” for the purposes of the Health Insurance Act. He was appointed an affiliate obstetrician at Westmead Hospital in 1979 and in 1985 was granted full accreditation in obstetrics at that Hospital as a result of which he had rights equivalent to those of a visiting medical officer. He held himself out as specialising in obstetrics and gynaecology and accepted the duty of care owed by him to his patients was that of a specialist obstetrician and gynaecologist. He retired from obstetric practice in 1991 and in 1994 retired from medical practice completely. He gave evidence in the proceedings but had no memory of KM or the circumstances independently of the hospital notes and his antenatal card.

7 Dr Lee (“the first defendant”) possessed qualifications and experience similar to the second defendant. He too held an appointment as an honorary medical officer in obstetrics at the hospital, was recognised by the Health Department as a Specialist (Obstetrician and Gynaecologist) and had similar appointments to that of the second defendant at Westmead Hospital. He died prior to the commencement of the proceedings. It was accepted the duty of care owed by him to patients was that of a specialist obstetrician and gynaecologist.

8 The first and second defendants lived in the same street. Though they conducted independent practices they covered for each other in the event one was ill, on vacation, or otherwise absent. The second defendant gave evidence that when going on holidays “I would take all my folders, three big folders of history notes, to his place and explain to him who was in hospital and what their state was, if there were any complications and so forth”.

9 The hospital was a large private one. Although it provided an appropriately staffed and equipped obstetric unit it lacked a neonatal intensive care unit.

10 It was desirable, by reason of the absence of a neonatal intensive care unit at the hospital, that any pre-term birth, or a birth where possible difficulties for the newborn were foreseen, should take place at a tertiary medical institution (which would have a neonatal intensive care unit) rather than at the hospital. The nearest tertiary medical institution was Westmead Hospital. It was located 10 to 15 minutes by road ambulance from the hospital.

11 KM was born on 12 October 1958. She fell pregnant with the plaintiff in December 1982. Her last menstrual period commenced on 15 December 1982. Her expected date of confinement, based on that date and calculated on the formula then used, was 25 September 1983.

12 KM consulted the second defendant who undertook the management of her pregnancy. KM did not give evidence at the hearing. The plaintiff’s father gave evidence he and KM had separated in 1986 and subsequently divorced and that he was unaware of her current whereabouts.

13 On 16 June 1983 KM was admitted to the hospital because of vaginal bleeding. The second defendant attended her on that admission. The bleeding stopped and KM was discharged on 18 June 1983. No allegation of negligence is made in respect of the treatment afforded on that occasion.

14 On 24 June 1983 KM suffered further vaginal bleeding. She was readmitted to the hospital. The admission was for the management of the antepartum haemorrhage. KM remained in the hospital until 21 July 1983. She was initially under the care of the second defendant but on 8 July 1983 he went on vacation, handing over her care to the first defendant. KM remained under the care of the first defendant at the hospital until 21 July 1983.

15 During the period KM was in the hospital from 24 June 1983 she suffered episodes of intermittent vaginal bleeding. The hospital notes record intermittent bright [fresh] bleeding on a number of occasions and on others brownish mild loss [old blood]. The fresh blood was usually associated with intermittent contractions. These were managed by bed rest, sedation and some tocolytic agents [drugs administered to stop contractions]. The pregnancy was high risk by reason of the potential for worsening bleeding and separation of the placenta. There was a likely prospect the plaintiff would be born prematurely. This was recognised by the first and second defendants. The intent of their treatment was to prolong the period the plaintiff remained in utero in order to reduce the dangers associated with prematurity.

16 An ultrasound taken on 30 June 1983 following a fresh bleed on that day was reported to show:

placenta – bi-lobed, one anterior, one posterior lateral, presentation vertex, liquor normal. Other findings active movements are present. We were unable to detect any abnormality in heart, head, spine, limbs or umbilical cord. Baby is growing appropriately. The cause of her haemorrhage remains a mystery. No separation or tracts of haemorrhage can be seen. However, a couple of areas were identified which would be worthwhile following for evidence of change of appearance. One of these is at the junction of the two lobes where a clear area can be seen behind the membranes. The other is behind the right posterior lobe where there appear to be quite large sinuses on the maternal surface of the placenta.

… we feel that the bleeding is “coming from junction of 2 lobes and is tracking down beneath the membrane on the left side.”

17 Normally in pregnancy a mucous plug forms at the entrance to the cervix providing a barrier between the uterus and the vagina. The vaginal bleeding evidenced that the cervical plug was no longer acting as an effective barrier.

18 There is no record that KM received any treatment with antibiotics nor did she receive any blood transfusions during this admission. There was no record of a full blood count being taken. A haemoglobin result dated 30 June 1983 was noted in the hospital records.

19 At about 10:30am on 21 July 1983 KM was transferred to Westmead Hospital where she was admitted at 1100 under the care of Professor Trudinger. The presenting problem was noted at Westmead Hospital as antepartum haemorrhage and the principal diagnosis “confinement”.

20 On admission to Westmead Hospital KM’s pulse was 108 and her temperature 37.3. The foetal heart rate was 162. These findings were marginally above the normal range. A full blood count revealed normal red cells and platelets. Under a heading “Leucocytes – Differential Count” was written:

21 A nursing entry at 1200 stated that KM appeared to have ruptured her membranes with “PV loss Pink large amount of fluid”. At 1345 arrangements were made for KM to undergo an ultrasound. This was performed at 1415. The ultrasound report stated no obvious foetal abnormality was readily apparent, minimal liquor was seen in keeping with the diagnosis of ruptured membranes. At 1520 Professor Trudinger performed a vaginal examination. He found the cervix to be one centimetre dilated, effaced and thin with the membranes apparently not ruptured.

22 At 1730 Professor Trudinger made arrangements for a caesarean section to be performed later that evening. At 1813 the operation commenced and the plaintiff was delivered at 1824 by lower segment caesarean section. The operation report noted:

30 weeks

fetal tachycardia

maternal pyrexia.

There was no reference to the result of the full blood count in this note.

23 KM had a temperature of 38.7C at midnight after this surgery but her temperature steadily fell over the next 24 hours and she was afebrile from 23 July onwards. She was not given antibiotics at any stage following her admission to Westmead Hospital.

24 The plaintiff was intubated in the operating theatre and transferred to the neonatal intensive care unit. He developed respiratory distress syndrome which progressed to bronchopulmonary dysplasia (BPD) and periventricular leukoencephalopathy (PVLE). The latter involved damage to the periventricular white matter resulting in cerebral palsy with spastic quadriplegia and severe intellectual impairment.

25 A pathology report dated 27 July 1983 stated:

Clinical

Macroscopic examination

Microscopic diagnosis

The villous architecture is consistent with early third trimester of pregnancy.

26 The chorion is the outermost of the two membranes that enclose the foetus. The amnion is the inner most membrane. These membranes fuse during pregnancy and form a fluid filled sac for the protection of the foetus. Chorioamnionitis is an inflammatory or infectious process which involves, inter alia, the chorion and amnion.

27 In 1983 a clinical diagnosis of chorioamnionitis was usually based upon the presence of two or more of the following:

maternal fever (most clinicians required a temperature of 38 degrees for more than four hours);

maternal tachycardia;

foetal tachycardia;

uterine tenderness;

rupture of membranes;

foul odour of the amniotic fluid;

28 The dominant cause of the plaintiff’s PVLE and BPD was the chorioamnionitis established by the pathology findings reported on 27 July 1983. (In this regard I have accepted the evidence of Dr McPhee, the only neonatologist whose evidence was placed before the Court).

29 Although multiple cultures were taken from the plaintiff and KM following the plaintiff’s birth none was positive for infection. They failed to demonstrate a known neonatal pathogen. No coliforms were seen or cultured from the plaintiff.

Liability – the first and second defendants

30 In Rogers v Whittaker (1992) 175 CLR 479 at 483, Mason CJ, Brennan, Dawson, Toohey and McHugh JJ held:

The law imposes on a medical practitioner a duty to exercise reasonable care and skill in the provision of professional advice and treatment. That duty is a "single comprehensive duty covering all the ways in which a doctor is called upon to exercise his skill and judgment"; it extends to the examination, diagnosis and treatment of the patient and the provision of information in an appropriate case. It is of course necessary to give content to the duty in the given case.

31 The enquiry as to what was reasonable care and skill is not to be undertaken in hindsight – Neindorf v Junkovic (2005) 80 ALJR 341 at [93].

32 The plaintiff qualified, for the purposes of his case on liability, the specialist obstetricians/gynaecologists Dr McMaster-Fay, Dr Molloy and Professor Mackay and an immunologist, Dr Moaven. The reports of these doctors were tendered and the obstetricians gave oral evidence. No evidence of a neonatologist was adduced in the plaintiff’s case.

33 The reports of specialist obstetricians/gynaecologists Drs Child, Lyneham and Hinde, an immunologist, Dr Taylor, and a neonatologist Dr McPhee were tendered by the defendants and they (save for Dr Hinde who was deceased by the date of hearing) were called to give evidence on behalf of the defendants. The second defendant and Professor Trudinger were also called in the defendants’ liability case. Various journal and text book articles were tendered by the parties.

34 Reports were obtained from Professor Haslam and Dr O’Loughlin by the defendants but not tendered. Copies of those reports had been served on the plaintiff’s legal representatives. The plaintiff could have re-served the reports and called the doctors to give evidence if he had wished. Accordingly I do not draw any Jones v Dunkel inference against the defendants in respect of that material.

35 The plaintiff’s principal case was that coliform bacteria tracked up from the vagina into the uterine cavity by a tract of old blood that was being discharged from the uterine cavity past the cervical mucous plug. This caused an ongoing disease process which commenced with an intrauterine infection between the lining of the uterus and the chorion, spread into an intra amniotic infection [infection that had spread across the membranes into the foetus] and then “fulminated” in chorioamnionitis.

36 The heads of negligence which were ultimately in contest as between the plaintiff and the first and/or second defendant can be particularised as follows:

a) the second defendant should have recognised as and from 30 June 1983 that there was a high risk of infection and prescribed and administered antibiotics.

b) failure to consult with a specialist obstetrician when the first or second defendant knew or ought to have known KM was experiencing complications with her pregnancy.

c) failure to refer KM to a tertiary medical institution in a timely manner, when the first or second defendant knew or ought to have known that KM was at risk of a pre-term delivery.

d) failure to prescribe and administer steroids as and from 8 July 1983.

e) failure to take a full blood count of KM on admission to the hospital and thereafter twice weekly as bleeding continued.

These heads of negligence are considered separately hereunder.

37 A number of additional heads of negligence of the second defendant were particularised in the Sixth Further Amended Statement of Claim (particulars h – n). In essence they allege the second defendant did not appropriately hand over management of KM’s pregnancy to the first defendant, did not follow up the results of a swab taken on 6 July 1983, did not on and before 8 July 1983 instruct, adequately instruct or ensure the first defendant administered antibiotics or steroids to KM and did not instruct or adequately instruct or ensure the hospital administered antibiotics or steroids to KM. I apprehend these particulars were not ultimately pressed by the plaintiff but in the event I am wrong in that regard I make the following comments:

a) The second defendant gave evidence that, in accordance with his practice (see paragraph [8] hereof), he would have told the first defendant at the hand over he had had a swab taken and why. If he had had the result of the swab he would have informed the first defendant of that result. However he had no recollection as to whether he had the swab result at the time of the hand over. The hospital evening report for 8 July 1983 contained an entry which concluded:

S/B Dr Frost NFO [no further orders].

The note was signed by the nursing sister. It was followed by another entry by the same sister. This entry reads:

Pathology results re vaginal swab – containing coliform – sensitive to ampicillin. Please inform Dr Lee in am.

That entry was also signed by the sister. These entries were not made by the second defendant. They suggest he was unaware of the swab result when he handed over to the first defendant.

b) I accept the evidence of the second defendant as to his practice when handing over the care of his patients to the first defendant. I do not accept that the hand over in the case of KM did not conform to his established practice and or that it was not adequate or appropriate.

c) In my opinion it was appropriate for the second defendant to hand over the care of KM to the first defendant, a doctor of similar qualifications and experience in whose professional skill and judgment the second defendant had faith based upon years of professional association. It was not incumbent on the second defendant to chase up the pathology report before handing over the care of KM to the first defendant or to instruct or ensure the first defendant administered antibiotics or steroids to KM. He was entitled, having put the first defendant on notice of the swab, to leave it to the first defendant to use his clinical judgment to determine what further treatment, if any, was appropriate and for the first defendant to supply such instructions or directions to the third defendant as were appropriate.

Failure to recognise as and from the 30 June 1983 that there was a high risk of infection and to prescribe and administer antibiotics

38 It was submitted on behalf of the plaintiff that a recurrent antepartum haemorrhage carried with it a significant risk of infection. Accordingly it was appropriate to administer antibiotics prophylactically to a pregnant woman who was suffering recurrent antepartum haemorrhage for that reason alone. Accordingly antibiotics should have been administered to KM no later than 30 June 1983.

39 Dr Molloy gave evidence supportive of that submission. He, however was unable to take the Court to any text or other literature which confirmed his evidence.

40 Professor MacKay did not give evidence supporting Dr Molloy on this issue whilst Dr McMaster-Fay stated it was not clinical practice or policy in 1983 or now to administer antibiotics prophylactically for antepartum haemorrhage.

41 Dr McPhee gave evidence there was no recognised association between antepartum haemorrhage and perinatal infection and that he had never seen any textbook or literature advocating the use of antibiotics in the context of recurrent antepartum haemorrhage. He alluded to the potential harm of indiscriminate use of antibiotics. Drs Hinde and Lyneham confirmed the absence of data supporting the submission whilst Professor Trudinger confirmed that it was not his practice to routinely give antibiotics if membranes were intact.

42 The weight of medical opinion adduced is contrary to that of Dr Molloy. In my opinion it has not been established that in 1983 reasonable care required that antibiotics be administered prophylactically to women suffering from recurrent antepartum haemorrhage. No breach of duty by the first or second defendant in this regard has been demonstrated.

Failure to consult with a specialist obstetrician when the first and/or second defendant knew or ought to have known KM was experiencing complications with her pregnancy

43 There was no evidence the first and/or second defendant consulted with a specialist obstetrician as to the management of KM’s pregnancy. There was evidence, and I find, that the first and/or second defendant could have sought the opinion of specialist obstetricians at Westmead Hospital as to the management of KM had they wished, and that had either of them done so appropriate advice would have been forthcoming.

44 The plaintiff’s experts gave evidence that, in their opinion, the failure to consult manifested a lack of reasonable care on the part of the first and second defendants and that the opinion which would have been obtained on such consultation would have resulted in a significantly different outcome for the plaintiff.

45 I do not agree. The first and second defendants were required to attend a patient suffering antepartum haemorrhage with, as a result, a threat of premature labour. As Dr Lyneham said in evidence, the clinical picture of recurrent minor to moderate antepartum haemorrhage associated with a tendency to threaten premature labour, which always settled in response to conservative treatment, was relatively common. The first and second defendants had long experience in the discipline of obstetrics which experience, as Dr Hinde observed, would have been demonstrated in order to obtain recognition for the purposes of the Health Insurance Act. In my opinion it was within the experience and capacity of the first and second defendants to attend and manage the treatment of KM. They did so in a hospital which was appropriately equipped and staffed. The circumstances, as they appeared at the time, were not such as to require either the first or second defendant to seek consultation with a specialist obstetrician.

46 In any event I am not satisfied that had the first and/or second defendants consulted a specialist obstetrician the treatment of KM would have been any different. Professor Trudinger, under whose care KM was placed by the first defendant, (and who presumably was the most likely obstetrician to have been consulted by the first and/or second defendant) gave evidence:

Had she been transferred into my care at Westmead Hospital at any time earlier than she was in fact transferred, or had she been admitted to Westmead Hospital under my care from the outset, instead of Baulkham Hills Private Hospital, her overall management would have been essentially the same in that I would have followed a conservative path seeking to prolong the pregnancy and gain foetal maturity.

47 When KM was admitted to Westmead Hospital Professor Trudinger did not make a clinical diagnosis of chorioamnionitis nor did he treat KM with antibiotics. He did have a full blood count taken and may, if consulted, have advised that course be taken. However he regarded the full blood count taken following admission as normal. In my opinion it is improbable that had the first or second defendant consulted with an obstetric specialist this would have resulted in any different outcome for the plaintiff.

Failure to refer KM to a tertiary medical institution in a timely manner, when the first or second defendant knew or ought to have known that KM was at risk of a pre-term delivery.

48 The plaintiff submitted, based particularly on the evidence of Drs McMaster-Fay, Molloy and Professor MacKay that KM should have been transferred to Westmead Hospital earlier than 21 July 1983, at least from 6 July 1983 onwards, because her pregnancy had reached a point where there was a very high risk that she could go into labour and deliver.

49 It was recognised by the first and second defendants that the plaintiff’s birth would probably be premature and that the neonatal intensive care facilities which existed at Westmead Hospital should be availed of in order to increase the plaintiff’s prospects of a favourable outcome. It was known that Westmead Hospital was 10 – 15 minutes from the hospital by road ambulance and that the birth process would take a number of hours to develop.

50 Professor Trudinger, into whose care KM came when transferred to Westmead Hospital, gave evidence labour would last 6 – 10 hours and the transfer should occur when the clinician was convinced the patient was in labour and that delivery was going to occur in the near future. It was a matter for the clinical judgment of the attending doctor to determine when the transfer should be made. Some competent doctors may have made the transfer earlier than it was made, others would have done as the first defendant did.

51 Drs Hinde, Lyneham and Child were of the opinion that KM had been referred in a timely manner to Westmead Hospital. The second defendant acknowledged he would have made the transfer during the course of 20 July 1983. Dr McPhee, the paediatrician, considered the transfer should have been made earlier but acknowledged what had occurred was common practice in the 1980’s and 1990’s and that the timing in this case had not caused any problems.

52 The duty in this regard was to make certain that the transfer took place in ample time to ensure the neonatal intensive care facilities were available. This was achieved. The plaintiff was transferred to Westmead Hospital some seven hours before birth. He was attended by highly skilled specialists at his birth and the full neonatal intensive care facilities of a major teaching hospital were available to him at that time. I find there was no breach of duty in this regard.

53 It was submitted that had KM been transferred earlier this would have resulted in a full blood count being taken which probably would have resulted in the detection and treatment of infection. KM would also then have come under the care of a highly qualified obstetrician and gynaecologist such as Professor Trudinger.

54 Even if there was the alleged breach of duty no loss resulted. As previously mentioned, Professor Trudinger gave evidence that had KM been transferred to Westmead Hospital earlier, he would not have managed her treatment any differently and he would not have administered antibiotics. He would have taken a full blood count on admission. However as Professor Trudinger regarded the white cell and neutrophilia counts obtained following the admission to Westmead Hospital as normal the taking of a full blood count would not have led to the detection and treatment of infection.

Failure to prescribe and administer steroids

55 Respiratory distress syndrome in pre term infants may arise from the inability of the immature lungs to produce pulmonary surfactant. It is currently accepted that the production of surfactant may be aided by the administration of corticosteroids to the mother prior to the birth of a preterm infant. The steroids assist in the maturing of the foetal lungs and their ability to produce surfactant.

56 On 17 July 1983 the first defendant ordered the administration of dexamethosone, a corticosteroid, 10mg intramuscularly.

57 The plaintiff submitted that the administration of steroids should have been commenced at an earlier time and the first defendant was negligent in not prescribing two injections within 24 hours on a weekly basis. Dr McMaster-Fay said, in a report, that it was most likely that steroid treatment would have resulted in a significantly better outcome and a probable virtually normal outcome if antibiotics and steroids were administered in appropriate amounts at appropriate times. Dr Molloy gave evidence the administration of one dose of corticosteroid was suboptimal but said he would defer to a paediatrician as to the outcome if KM had been correctly treated.

58 There was considerable evidence before the Court that in 1983 it was not standard practice to prescribe corticosteroids for the purpose of maturing infant lungs though there were many practitioners who did so. There was at that time debate about the benefits of administering corticosteroids, its side effects, whether there should be one or two injections on a weekly basis and their timing.

59 Dr McPhee gave evidence he did not believe the failure to administer a complete course of antenatal steroids was likely to have significantly contributed to the plaintiff’s outcome.

60 Dr McMaster-Fay conceded in cross examination that there was no study to prove that if the steroids were started earlier the outcome would have improved. He said he would defer to a neonatologist in this regard. He also said that these days only one injection is used and there is no difference in clinical outcome whether one or two injections is used. He accepted that in 1983 there had been debate as to the side effects of administering steroids and doubts as to the benefits although it had been the practice in 1983 of a number of doctors to use steroids. He conceded his argument in regard to the administration of steroids was “weak”.

61 In my opinion the evidence does not establish that, in the state of medical knowledge available in 1983, a failure to administer steroids to a mother prior to the birth of a pre-term infant constituted a breach of the duty of care. Nor in my opinion does the evidence establish that the administration of one injection of corticosteroid rather than two was of any significance. I am not satisfied that the failure to commence the administration of corticosteroids to KM prior to 17 July 1983 affected the outcome for the plaintiff in any way. In my opinion no breach of duty has been demonstrated, nor has any damage been shown to result from the alleged breach.

62 I note that senior counsel for the plaintiff, whilst not abandoning it, did not seek to support this allegation of negligence in his closing address.

Failure to take a full blood count on admission to the hospital and thereafter to do so regularly twice weekly as bleeding continued

63 In 1983 there was a practice in the maternity unit at Westmead Hospital to take a full blood count on admission of a patient suffering antepartum haemorrhage and thereafter to repeat the full blood count weekly or twice weekly if bleeding persisted. The second defendant was aware of this practice in 1983. The full blood count provided information as to haemoglobin, white blood cells and platelets.

64 The plaintiff submitted a full blood count should have been taken upon the admission of KM to the hospital on 24 June 1983 and thereafter repeat full blood counts should have been taken weekly or twice weekly as bleeding persisted and, if this course had been followed, the white cell count would have revealed evidence of infection.

65 The second defendant gave evidence he did not have a full blood count taken on KM’s admission to the hospital as she was no longer bleeding at the time. No full blood count was taken by either the first or second defendant during KM’s stay in the hospital. The only evidence of blood tests on KM whilst at the hospital was a cross-match on 30 June 1983 when a haemoglobin level was recorded.

66 The hospital had “its own in-house pathology service” and it would have been a simple and relatively inexpensive matter to arrange for a full blood count to be taken if required.

67 There was considerable evidence that it would have been reasonable practice to take a full blood count upon admission so as to provide a baseline reading. Senior counsel for the defendants acknowledged in his final address that a full blood count should have been done at the time of KM’s admission to the hospital. However senior counsel for the plaintiff did not submit a full blood count at that time would have disclosed any infection.

68 Dr Child gave evidence that in a public hospital where there are multiple care providers it would not be unusual to have protocols suggesting weekly or twice weekly blood counts be taken. The reason for such protocols is that there are different shifts of doctors coming on all the time to provide care for a patient whereas in a private hospital setting care is provided generally by one doctor who has a very clear picture of the patient’s condition and blood loss as he or she would visit each day.

69 There was an issue as to whether the first and second defendant attended KM each day. The second defendant gave evidence that his practice was to attend his patients daily whilst they were in hospital except perhaps on Sundays. I formed a favourable impression of the second defendant and I accept that his practice was as stated and that he did conform to that practice notwithstanding the hospital records do not record him seeing KM on each day of her stay.

70 I also accept that the second defendant’s antenatal card contains an entry by the first defendant that he attended KM daily whereas the hospital records do not record each visit. I accept the entry on the antenatal card as evidence the first defendant did attend KM daily. I note KM did not give evidence and that her absence was not adequately explained. I draw a Jones v Dunkel inference in this regard. In my opinion the plaintiff has not established the first defendant did not attend KM daily whilst she was under his care.

71 Dr Child gave evidence that the frequency of taking blood tests in the case of a single care provider should be left to his or her discretion. It is the haemoglobin that is of concern in the management of a patient with antepartum haemorrhage.

72 Dr Lyneham gave evidence it was appropriate to perform haemoglobin estimates only if a woman was experiencing heavy recurrent episodes of bleeding and there was concern about whether her blood loss may be enough to cause anaemia. The bleeding in this case was not of such a degree and KM’s haemoglobin level, when taken on 21 July 1983 at Westmead Hospital, was within normal limits.

73 I accept the evidence of Drs Child and Lyneham. In my opinion no duty was cast upon the first or second defendant to require full blood counts be taken weekly as a matter of routine following KM’s admission.

74 However situations could arise where there would be present clinical circumstances which would make it appropriate to order a full blood count. The second defendant gave evidence that, in retrospect, he should have arranged for a full blood count to be taken on 6 July 1983 by reason of the circumstances which arose on that day.

75 Whether there was evidence of breach of duty in not ordering full blood counts on specific occasions during the course of KM’s stay in the hospital and whether such would, on the balance of probabilities, have provided evidence of infection leading to effective treatment, is considered later in this judgment.

Failure to diagnose intrauterine infection on and from 6 July 1983 and treat it by administering antibiotics

76 The plaintiff has submitted that during the course of KM’s stay at the hospital there was evidence of infection which should have been detected by the first and/or second defendant and should have given rise to treatment by antibiotics which “probably would have improved the outcome dramatically”.

77 This particular of negligence assumes the existence of infection and raises three distinct questions namely:

(a) should the first and/or second defendant have diagnosed infection on the available evidence?;

(b) if so, what treatment, if any, should have been given to KM?;

(c) what effect, if any, would such treatment have had on the outcome for the plaintiff?

78 In considering each of these matters it must be borne in mind that the standard of care resting on the defendants was one of reasonableness, not perfection; the standard of reasonable care was to be judged against the state of medical knowledge and practice in June / July 1983; that chorioamnionitis is very difficult to diagnose prior to birth because its clinical criteria are neither specific nor sensitive and could equally be the product of other conditions and that the first and second defendants did not have available to them the pathology results which were available to the experts who have given evidence in this case.

79 The plaintiff submitted, in particular, that there were four occasions during KM’s stay in the hospital when her signs and/or symptoms were such that they should have led the first and/or second defendant to diagnose infection. These are considered in turn.

Evidence of infection
6th and 8th July 1983

80 The hospital notes record that on 6 July 1983 KM had a moderate dark red blood loss which was “very offensive.”

81 The second defendant ordered a vaginal swab be taken. The swab, which, I find, was of the lower vagina, was taken and forwarded to the Pathology Department on 6 July 1983.

82 On 8 July 1983 the Pathology Department reported the following results of the swab:

Gram stain Culture Sensitivities

polymorphs … culture coliform +++ ampicillin S

gram pos cocci ++ staph albus - scanty tetracycline S

gram pos bacilli ++ chloramphenicol S

gram negative bacilli … gentamicin S

epithelial cells +

83 Dr McMaster-Fay gave evidence that in his opinion KM had an infection in the uterine cavity around the membranes on 6 July 1983, with a very real possibility infection had spread into the amniotic fluid. The bacterial agent for the infection was E-coli. The existence of the infection should have been apparent to the first and second defendants because of the combination of antepartum haemorrhage, the swab showing a growth of coliform +++ and the offensive vaginal discharge.

84 Dr Molloy considered there was evidence of infection. He said it was not common place for there to be offensive odours and discharges in women without any infection at all. In his opinion an offensive odour always equated to an infection.

85 The plaintiff’s experts gave evidence they would have treated KM with the antibiotic, ampicillin. This, they said, would have stopped the infection proceeding to full blown chorioamnionitis.

86 The defendants’ doctors did not accept that the antepartum haemorrhage was associated with infection. They were of the opinion that the finding of coliform +++ on the swab merely reflected the existence of normal vaginal flora. Such a finding was not uncommon in perfectly healthy women. It was noted there were no pus cells [polymorphs] on the swab. It was more likely than not that such would have been present if there was infected fluid or pus coming from the uterus.

87 Professor Trudinger said:

I am now aware that a low vaginal swab taken at Baulkham Hills Hospital revealed a heavy growth of E coli organisms. However this swab result also indicates that there were no polymorphs (white pus cells) in the swab and the likely presence of lactobacilli. This suggests that the E coli were present as colonising organisms rather than an infection.

88 There was evidence from the doctors retained for the defendants that old blood retained in the vagina may have an unpleasant odour as a result of the breaking down of blood products by the normal vaginal bacteria rather than being indicative of an intrauterine infection.

89 Professor MacKay gave evidence that the presence of E-coli was evidence of colonisation not intra uterine infection. He considered that a very offensive odour was an alert that infection may be present. He accepted there can be vaginal odour in many normal women.

90 Dr McMaster-Fay agreed in cross examination that the antepartum haemorrhage was not itself a direct indicator of infection though it was a predisposing factor. The presence of E-coli does not indicate infection as the female lower genital tract has many pathogenic organisms being part of the normal vaginal flora. Thirty three per cent of women show a presence of E-coli in the vagina. A low vaginal swab is more likely to be contaminated with E-coli because of the proximity of the swab site to the perineum. The presence of lactobacillus on the swab is normally indicative of a healthy balance of micro organisms in the vagina. However the heavy growth of coliforms noted on the pathology report may suggest error in the pathology report in relation to the presence of lactobacilli. The very offensive brown discharge may be caused by a number of conditions other than chorioamnionitis or inter uterine infection. The discharge was, he believed, not amniotic fluid rather it was old blood. It could have been old blood colonised with bacteria from the vaginal flora without any infection at all. A very offensive vaginal odour can occur in normal healthy women.

91 There was evidence from Drs Hinde and Lyneham that no intrauterine infection existed in early July 1983. As Dr Hinde’s report explained such an infection, once established, is progressive, most often rapidly provoking onset of labour. The onset of labour 2.5 weeks after the first week of July was completely incompatible with the existence of an intra uterine infection.

92 In my opinion, the evidence relied upon by the plaintiff’s medical specialists did not establish the existence of an infection in the uterine cavity on 6 or 8 July 1983.

93 The second defendant gave evidence that in 1983 it was his practice, if there was a very offensive vaginal discharge, to order a vaginal swab to determine the cause of the discharge. He gave evidence, that if he had been aware of the results of the swab taken on 6 July 1983:

I wouldn’t have done anything straight off … I would have watched her for the next few days to see if there was a raise in temperature or pulse or if there was any inflammation of the vulva and vagina. If there was I would have given the appropriate antibiotic. It is very common in vaginal swabs to get coliform bacilli.

94 In my opinion the course which the second defendant advocated was appropriate. It is apparent from a note on the second defendant’s antenatal card dated 8 July 1983 that the first defendant was aware of the result of the vaginal swab. There is no record that he administered ampicillin or any antibiotic to KM at that time. However the offensive discharge did not continue, KM was afebrile, there was no tachycardia and there was no infection of the vulva or vagina. In my opinion, the fact that the first defendant did not administer an antibiotic to KM at that time does not evidence any lack of reasonable care on his part.

95 The second defendant agreed that, in retrospect, he should have ordered a full blood count on 6 July 1983. Professor Trudinger would also have ordered a full blood count at that time. For reasons which appear later in this judgment I am not satisfied a full blood count taken on 6 July 1983 would have provided any evidence of infection.

10th July 1983

96 The hospital report on 10 July 1983 indicated:

Brown loss, urine offensive.

97 The second defendant gave evidence that the fact the urine was said to be offensive but had no growth did not indicate to him that some investigation should be made to see whether the brown loss indicated any infection.

98 The plaintiff in final submissions did not place any significant weight upon this report. In my opinion it has not been established that the first defendant was in breach of duty in not further investigating the possibility of infection at that time.

18th July 1983

99 The hospital notes recorded that on 18th July 1983 KM’s urine was heavily bloodstained and there were “streaky pieces of membrane in urine, one piece size of ten cents.” KM was not contracting and she was given oral valium and ventolin. It was noted “pads becoming offensive.”

100 The plaintiff submitted the “pads becoming offensive” was indicative of infection, and there was no record the first defendant took any steps to determine if the “pads becoming offensive” indicated the presence of infection. If he had taken appropriate steps the presence of infection would have been revealed and it should have been promptly treated.

101 The argument put in support of the plaintiff’s submission was essentially as follows:

a) the pathology report dated 27 July 1983 established there was infection when delivery took place;

b) the process which led to the pathology revealed in that report was an evolving process. Therefore there must have been a period of evolution before the acute or full condition occurred;

c) there was evolving evidence of chorioamnionitis on the night of 20 July 1983;

d) the full blood count taken shortly after admission to Westmead Hospital demonstrated infection at that time;

e) the above evidence leads to the conclusion there was infection in the period of at least days before KM was transferred to Westmead Hospital;

f) “By the time we get to the morning of the 17th (sic 18th) when one brings all this material together in our respectful submission the finding available on this evidence and the finding that should be made because it is the most probable, the most likely, is that there was evidence available to Dr Lee which indicated to him that there was a need to investigate the cause of this foul odour or the pad becoming offensive and that was to do a full blood count”.

102 I have difficulty in accepting such an argument. It relies almost entirely upon events which occurred subsequent to 18 July 1983 when the first defendant would have been called upon to determine the appropriate course of action.

103 As at 18 July 1983 the first defendant knew nothing of the events which were yet to come. He would have known the report was of the pads “becoming offensive” rather than of a very offensive discharge. He would have known that the observation of offensive pads, especially if they have been in place for some time is not uncommon nor diagnostic of infection. He would have known KM was afebrile, and that the signs generally were contraindicative of infection.

104 In my opinion it would not have been unreasonable for the first defendant, in his then state of knowledge, to adopt a wait-and-see approach. The pad which was becoming offensive presumably was removed, there was no further report of offensive discharge or pads and KM’s condition appears from the hospital notes to have been stable and satisfactory on 19 July 1983 and during the day on 20 July 1983. Senior counsel for the plaintiff accepted there was no development on 19 July 1983 which advanced his case.

105 The plaintiff submitted that a full blood count should have been taken on 18 July 1983. That is the only investigation which was suggested. I do not consider the circumstances were such that the failure to obtain a full blood count on 18 July 1983 constituted a breach of the duty of care owed by the first defendant. In any event, for reasons which appear below, it has not been established that a full blood count on 18 July 1983 would have disclosed the existence of an infection in KM. In the absence of infection there would have been no basis to treat KM with antibiotics.

106 The full blood count taken on admission to Westmead Hospital revealed neutrophils 89% and white blood cells 14.6.

107 There was a conflict in the evidence as to the significance of such results in a pregnant woman at KM’s stage of pregnancy and whether any conclusions could be drawn from them as to what a white cell count taken at an earlier time may have revealed.

108 Dr McMaster-Fay gave evidence that the neutrophil count of KM showed a gross elevation over the normal neutrophil count in the third trimester of pregnancy and meant that infection had been going on for many days if not weeks. The latter conclusion, he said, was based on clinical experience and extrapolating backward.

109 Dr Molloy considered the white blood count was not significant and there was no difference other than perhaps minimal difference whether the woman was pregnant or not. He agreed that the leucocyte count, without any other signs or symptoms, was not a useful predictor of chorioamnionitis with prematurely ruptured membranes. He said KM’s neutrophil count showed a rise which indicated infection that could have been present for two or three days if not longer. He was unable to find any support for this opinion in the literature and agreed it was speculation on his part. He agreed that with steroid injections a patient’s white cell count could rise to at least 15,000 in the absence of infection. KM had a corticosteroid injection on 17 July 1983.

110 Professor Trudinger and Dr Taylor gave evidence the neutrophil and white cell counts were within the normal range for a woman at that stage of her pregnancy. Dr Lyneham was of the opinion the readings were only slightly elevated, perhaps not at all, for a woman in labour. This evidence was supported by reference to relevant literature.

111 Dr Taylor gave evidence there was nothing in the full blood count to indicate the length of time infection had been present and that a rise in the white cell and neutrophil counts may occur within a few hours.

112 Dr Lyneham gave evidence:

There is no evidentiary or scientific basis for Dr Molloy’s opinion that the mother’s slightly elevated white cell count indicates that an infection “would have been there for at least two to three days beforehand and this could have been even longer.” On the contrary, in my view it is consistent with any infection being of very recent origin.

Dr Molloy’s opinion that because there was a neutrophilia on 21 July 1983, such a neutrophilia “may well have been present” one, two, three or even four weeks earlier is also without evidentiary or scientific basis. In my view a neutrophilia probably would not have been present on those earlier dates. There was no evidence of clinical infection at these times and a neutrophilia can develop within a short time of a clinical infection becoming apparent.

113 In my opinion it would have been reasonably open to a clinician to conclude the white cell and neutrophil counts were within the normal range, albeit at the higher end thereof.

114 In any event the relevant full blood count was taken after admission of KM to Westmead Hospital. I accept the evidence of the defendants that one could not extrapolate backwards from those findings to conclude a full blood count taken at the hospital on or prior to 20 July 1983 would have produced the same or similar counts, or otherwise disclosed abnormality particularly in circumstances where the condition was progressive and reached, on Dr McMaster-Fay’s evidence, its end stage on 21 July 1983.

Evening 20 July 1983 to morning 21 July 1983

115 On the evening of 20 July 1983 KM developed contractions associated with moderate bright vaginal bleeding. Sedation was administered without effect. The first defendant attended at 2300 and performed a speculum vaginal examination and found the cervix to be long, posterior and closed. KM was now complaining of slight nausea and of frequent sweats but she was afebrile.

116 On 21 July 1983 KM had a large bright vaginal loss at 0700 with regular contractions. She was nauseated ++ and shaking but observations were otherwise satisfactory, she had a pulse rate of 95/minute and a temperature of 36.8C. The foetal heart rate was 132/minute. KM was seen by Dr Lee and a transfer to Westmead Hospital was arranged.

117 There was no clinical evidence of chorioamnionitis or an intrauterine infection on the evening of 20 July 1983 or early on 21 July 1983. I accept the evidence that the clinical signs first manifested themselves on and after KM’s arrival at Westmead Hospital. I do not accept that KM’s presentation on the evening of 20 July 1983 should have alerted the first defendant, exercising reasonable care, to the possible presence of chorioamnionitis or intrauterine infection. It is only with the benefit of hindsight that such can be suggested, if at all.

118 Even if the signs of chorioamnionitis or intrauterine infection appeared shortly before transfer to Westmead Hospital this would not have required action by the first defendant as the care of KM was being transferred to Westmead Hospital at that stage. It is not without significance that Professor Trudinger, into whose care KM was transferred, did not diagnose chorioamnionitis or treat KM for any infection.

119 Furthermore even if the first defendant had concluded the plaintiff had chorioamnionitis on the evening of 20 July or morning of 21 July 1983 and did not administer antibiotics this would not constitute a breach of duty as it would be reasonable for him to proceed on the view held by many competent medical practitioners in 1983 that in the absence of ruptured membranes the administration of antibiotics would be ineffective.

Causation

120 The plaintiff submitted the first and second defendants were in breach of duty in failing to treat KM with a broad based antibiotic, ampicillin.

121 The first and second defendants submit that had KM been treated with the antibiotic at any time during her period in the hospital it would have made no difference to the outcome for the plaintiff. Thus, irrespective of the other issues in the case, the plaintiff’s claim must fail as the necessary causative link is absent. The onus of establishing the causative link is upon the plaintiff.

122 The only neonatologist who gave evidence at the hearing was Dr McPhee. Generally speaking, the other medical witnesses said they would defer to a neonatologist as to matters within his speciality. The plaintiff relied upon his evidence to establish a causal link between the chorioamnionitis and the conditions of BPD and PVLE. Senior counsel for the plaintiff said in his address:

It is important to recognise that Dr McPhee is the only neonatal specialist to have given evidence in this case. This area is his field. What he does, on pages 6 and 8 of the report, is he explains the pathogenesis of PVLE and BPD. Then, on page 13, at the top of the page, he concludes that chorioamnionitis was the dominant factor, or the causal factor, in respect of both the PVLE and the BPD.

123 The evidence of Dr McPhee on this aspect was, in brief, as follows:

(a) Joshua’s neonatal course was dominated by the development of hyaline membrane disease [also known as respiratory distress syndrome] that progressed to severe chronic lung disease (also known as bronchopulmonary dysplasia – BPD), with the latter requiring prolonged positive pressure support. Although Joshua’s early cranial ultrasound studies were reassuring, he progressed to develop significant neurodevelopmental difficulties which are now evident as spastic quadriplegic cerebral palsy, with epilepsy and cognitive impairment. Late neuroimaging studies have revealed features of injury to the periventricular white matter of the brain with associated cerebral atrophy. This pattern of brain injury, which is known as periventricular leucoencephalopathy – PVLE, is a well-established complication of very preterm birth, and explains well Joshua’s current problems.

(b) The other clinical factor that is strongly linked with PVLE is perinatal infection/inflammation, with chorioamnionitis being associated with a particularly high risk. The mechanism of this pattern of injury is thought to involve inflammatory mediators or cytokines, released by the placenta and/or fetus in response to infection/inflammation. These molecules appear to be capable of damaging the oligodendroglial cells, via either direct neurotoxic effects, the production of free radicals (mainly reactive oxygen species), and/or via adversely affecting local perfusion.

(c) Overall, our current understanding of PVLE is that the major contributory factors are an immature brain (mainly between 24-34 weeks’ gestation), focal ischemia/hypoperfusion, subsequent reperfusion injury due to reactive oxygen species, and inflammatory mediators released during fetal-maternal infection. It should be emphasised that our understanding of PVLE is incomplete, and that very little was known about this pattern of brain injury in 1983.

(d) It is difficult to quantify the relative contributions of these various factors in this case. However, given the strong epidemiologic evidence in favour of chorioamnionitis as a causal factor in the pathogenesis of both PVLE and BPD, it is my opinion that this, in conjunction with Joshua’s prematurity, is the dominant factor.

124 Dr McPhee also gave evidence:

(a) Multiple cultures were taken (surface swabs, blood [cord and arterial specimens], and gastric aspirate), and treatment with penicillin and gentamicin (plus metronidazole from day 2) was initiated. Subsequently, apart from a culture of gram positive rods (probably anaerobes) in the gastric aspirate, the results of the perinatal cultures were negative, as was the result of an endotracheal aspirate done on day 2.

(b) … the pathophysiologic process does not necessarily involve infection of the fetus, but simply exposure of the fetus to inflammatory mediators (or cytokines) produced within the infected/inflamed chorioamniotic tissues … but that the deleterious effects on the fetus are mediated by the release of inflammatory mediators that cross into the fetal compartment and injure the immature brain.

(c) Q. Translating that to lay language, is the situation that chorioamnionitis was one where the foetus doesn't get infected as such; is that right?
A. Correct.

Q. But what happens is that there is infection or inflamed tissues elsewhere and they release something called "inflammatory mediators"; is that right?
A. Correct.

125 Dr McPhee concluded:

(a) … evidence for a role of infection and inflammation in a range of perinatal and preterm neonatal conditions has generated much interest in the use of perinatal antibiotics to avert these problems. To date however, apart from the use of intrapartum antibiotics to prevent group B streptococcal infection in the newborn, and antibiotics in the presence of preterm rupture of the membranes, the results of these strategies have been generally disappointing.

(b) … the use of broad spectrum antibiotics in the setting of preterm labour with intact membranes, based on a potential causal role of infection in the genesis of preterm labour, has been shown to be of no benefit, and possibly of some harm.

(c) I do not believe that there is any evidence that antibiotics at this time [i.e. on 6 July 1983], or even later when there was threatened preterm labour associated with antepartum bleeding, would have influenced the outcome.

(d) … given that there was no evidence of bacterial infection in Joshua, any discussion as to the potential of intrapartum antibiotics to have prevented same seems illogical.

(e) I do not believe … that there is any evidence to suggest that the use of pre- or intrapartum antibiotics in this case would have favourably influenced the outcome.

(f) Q. … And "generally disappointing", does that mean that those studies reflect the fact that there is no evidence that outcomes are improved in the absence of ruptured membranes?
A. In - other than with group B strep, yes.

126 All of the experts accepted the membranes did not rupture until after transfer to Westmead Hospital save for Dr McMaster-Fay. In his report dated the 19 September 2005 Dr McMaster-Fay said “It was most likely the membranes ruptured at the hospital”. However in cross-examination he said “It is uncertain but I am not sure when she ruptured her membranes. It may be in the day before”.

127 The defendants submit that Dr McPhee’s evidence was essentially unchallenged and that, accepting that evidence, there was no causal link between the failure to administer antibiotics and the harm sustained by the plaintiff. I accept the defendants’ submission insofar as it relates to the situation once the cytokines had been released.

128 Dr McMaster-Fay accepted that the only clinical situation in which antibiotics had been shown to reduce the incidence of chorioamnionitis was where there was pre term rupture of the membranes. He agreed there was no study of antibiotics having any effect on chorioamnionitis other than where the membranes had ruptured.

129 Professor MacKay gave evidence that he did not accept there was no evidence chorioamnionitis would be beneficially treated by the use of antibiotics where the membranes were intact. He stated he would attempt to show chapter and verse. He did not do so.

130 However the plaintiff’s submission was that harm to the plaintiff could have been avoided if the initial infection had been cured by the administration of antibiotics before the plaintiff had been affected.

131 This submission appears logical and has some support from the doctors who gave evidence for the plaintiff though they do not go so far as to say the plaintiff would have been totally unharmed if antibiotics had been administered.

132 However, even accepting the plaintiff’s general proposition, it would be necessary for him, if he was to succeed on the causation aspect, to establish, and the onus is upon him, that the first and/or second defendant, acting with reasonable care, should have administered antibiotics to KM at a time before the cytokines had been released.

133 Senior counsel for the plaintiff accepted, properly in my opinion, that he could not say when the bacteria ascended into the uterine cavity and “turned into infection”. Arguments were put that the infection could have occurred as early as before 6 July 1983 or as late as 21 July 1983 the latter as the pathology report dated 27 September 1983 described the condition as acute and clinical symptoms appeared whilst at Westmead Hospital. In my opinion the evidence does not establish when, on the balance of probabilities, the cytokines were released and, as a consequence, the necessary causative link is absent from the plaintiff’s case.

134 Additionally the bacteria which caused the infection was not identified on the cultures taken after the birth. If it had been coliform then some trace would have been expected to be found.

135 Dr Molloy sought to implicate streptococcus B as the cause of the chorioamnionitis. He was the only expert who sought to do so. There was no evidence in any of the material to corroborate that conclusion. I do not accept it. The cause of the chorioamnionitis is not known and the plaintiff has not established the antibiotics that would have been administered to KM would have addressed the organism that was causative of the infection.

136 It was further submitted for the defendants that the medical evidence for the plaintiff did not go beyond suggesting the plaintiff’s condition would have been better or considerably better if antibiotics had been administered and that in the absence of evidence as to how much better, in what respects better or why it would have been better the plaintiff had not established the damage which resulted from the breach. In the light of my earlier conclusions it is unnecessary to determine this issue.

137 In my opinion the plaintiff has not established that the harm suffered by him was caused by the failure of the first or second defendant to administer antibiotics to KM.

Conclusion - liability of first and second defendants

138 In my opinion, the plaintiff has failed to establish negligence on the part of the first or second defendant.

Liability - the third defendant

139 The plaintiff ultimately particularised the case against the third defendant in the following terms:

The third defendant failed to have a protocol that required GP obstetricians with VMO rights at the hospital to consult with or refer patients to qualified obstetricians and/or tertiary institutions when complications arose during pregnancy.

140 Whilst both Dr McMaster-Fay and Dr Molloy expressed opinions in reports that the third defendant was in breach of a duty as particularised above neither doctor was able to give any satisfactory evidence that he had knowledge of any private or public hospitals in New South Wales where any such protocols were or had been in force. No other doctor attempted to give evidence in support of such a submission. There was no evidence from any hospital administrator to such effect.

141 On the evidence before me it would be neither reasonable nor practicable for a duty to be imposed on a private hospital to direct its visiting medical officers as to the manner in which they should treat their private patients.

142 In my opinion, it has not been established the third defendant owed any duty as alleged. Even if there was such a duty it has not been established its breach would have resulted in any harm to the plaintiff. The plaintiff has failed to establish negligence on the part of the third defendant.

Damages

143 As I have found in favour of the defendants it is unnecessary to assess damages. However, against the possibility the matter may not conclude with my decision, I make the following further comments.

144 The parties reached agreement as to the damages recoverable in the event the plaintiff succeeded in his claim subject to the determination by the court of three heads of damage. The agreed items are:

HEAD OF DAMAGE	AGREED
Non-Economic Loss	$416,000
Past Damages:
Care	$651,914
Out of Pocket Expenses	$77,340
Loss of Earnings	$143,123
Superannuation	$15,743
Interest	$35,431
Future Damages:
Handyman/Gardener	$15,000
Case Management	$108,623
Equipment: Capital Costs Recurrent Costs:	$40,000 $207,046
Accommodation: Modifications – live in carer OR rotating shift of carers Maintenance - house Spa Pool Maintenance – spa pool	$150,000 $100,000 $21,725 $64,454 $15,099
Transport	$79,294
Holidays	$95,000
Computer	$10,000
Loss of Earnings	$591,140
Superannuation	$65,237
Occupational Therapy	$13,575
Physiotherapy	$19,552
Counselling	$6,608
Out of Pocket Expenses: Hamstring surgery Medical visits Medication	$4,896 $24,300 $13,462
Funds Management	TBA
TOTAL	$1,944.259 (+ difference in funds management).

145 The three disputed items are considered hereunder.

Future care

146 The plaintiff finished school in 2002. Since that time he has attended the Sunnyfield Association at Charmhaven. There he fills in his day doing activities, learning life skills, socialising and things of that nature which activities he loves. He attends the Sunnyfield Association three days a week, Monday, Tuesday and Thursday. He leaves home for the Sunnyfield Association at approximately 9.30am and returns home between 2.30pm and 3pm. He also attends a community centre on Wednesdays, on average, once per month from 12 noon until 3pm.

147 The plaintiff proposes to continue to live with his father and other family members.

148 It is accepted by the defendants that the plaintiff will require care 24 hours a day 7 days per week and that this should be provided on a commercial basis in lieu of the present regime of care being provided essentially by the plaintiff’s father with the assistance of his partner.

149 The issue between the parties is whether commercial care should be provided on the basis of three 8 hour shifts per day as the plaintiff contends or, as the defendants contend, by full time 24 hour live-in carers who would work 2-3 days at a time together with assistance provided by a second carer who would work an hour and a half in the morning and an hour and a half in the evening assisting with the physical care of showering, toileting, dressing and the like. The relevant costs for the three 8 hour shifts per day is $5,310,437.00 and for the full time carer arrangement $3,484,008.

150 A relevant consideration in determining this issue is the extent to which a carer would be called upon to attend the plaintiff during the night. The plaintiffs’ father gave evidence the plaintiff goes to bed between 8.30pm and 9pm. He does not immediately settle down and may spend the best part of the next hour seeking attention. During the night he may twist himself in his bedclothes. If for any reason he is awoken during the night he may climb out of the bed and crawl to other parts of the house. The father gave evidence he had resigned himself to being up to at least 3am or 3.30am every morning by which time the plaintiff is usually pretty well settled. The father has an opportunity for further sleep when the plaintiff goes to Sunnyfield or out with his leisure buddy.

151 Dr Bowers recorded in May 2004 that he was told the plaintiff, on average, slept three to four nights out of seven though his sleeping was worse in winter. The plaintiff’s father gave evidence the plaintiff was very much a creature of habit and that once he gets into a regime of things happening he does settle down. It is likely that a carer may be able to establish a regime with the plaintiff which does not result in the type of demands which are made on the plaintiff’s father and which he feels he must meet.

152 It was submitted the three-shift basis would enable a carer who had a disturbed night with the plaintiff to rest before his next shift whereas a full time carer would have to continue to care for the plaintiff in a fatigued state.

153 Dr Buckley, a rehabilitation specialist qualified for the plaintiff, preferred the provision of live in care by two carers to rotating shifts. However he expressed concern that a single live-in carer would become stressed by the close and continuing requirements of the plaintiff if he worked four days per week and this would lead to a reduced capacity to provide good care.

154 Evidence was called by the defendants from Dr Henke, a rehabilitation specialist qualified by them. Dr Henke concluded that the preferable option was a full time 24 hour a day carer working 2-3 days per week (plus the additional assistant three hours per day).

155 The medical evidence indicates there are considerable perceived benefits in a live in care regime as compared to a shift care arrangement. The concern as to fatigue due to interruption at night can be addressed by working 2 – 3 days per week at a time rather than for longer periods and by resting during the course of the day whilst the plaintiff is at Sunnyfield or in the care of other persons.

156 I would allow this head of claim on the basis put forward by the defendants. There may however be occasions when the plaintiff will disturb the carer on more than two occasions at night and thus an additional fee would be payable. Accordingly it would be appropriate to include an added charge for four hours per week to meet that eventuality.

Air conditioning

157 The plaintiff claims the cost of air conditioning at $14,400 and maintenance thereof at $60,231. This claim is “agreed subject to need”.

158 The defendants accept the plaintiff has an injury created need for heating. They submit this need could be met by the provision of heaters; the plaintiff would have had heaters even if uninjured; there is no injury created need for cooling; accordingly the claim for air conditioning should be refused.

159 The plaintiff’s father gave evidence that the plaintiff cannot control his body temperature and that, if outside a temperature controlled environment and the temperature drops too low, the plaintiff goes into uncontrollable spasm. The plaintiff is not exposed to too much hot weather but he handles it a lot better than the cold. The plaintiff’s present home has air conditioning in some of the rooms.

160 Dr Buckley concluded there should be provision for air conditioning as:

… the person who is largely confined to a wheelchair, or the seated position, loses about 20 per cent of their body surface area as available for cooling during hot weather. That means that there is excessive sweating over the rest of the body, a tendency to develop therefore, fungal infections and so forth in the groins, and the person who is unable to simply stand up and wander around and, therefore, enable better air circulation around their body is, therefore, considerably discomforted and at risk of minor medical complications by not being in a cool environment.

Secondarily, in Joshua Mills’ case, is the question of more difficult behaviours when the person is stressed by heat. I think that the carers would be likely to find more difficulty in caring for Joshua when he is particularly hot and uncomfortable.

161 Dr Henke concluded it would be reasonable to have a controlled temperature environment for the plaintiff.

162 In my opinion the plaintiff has an injury caused need for the provision of an evenly controlled temperature environment. It is reasonable in my opinion that this need be met by the provision of air conditioning. Accordingly I would allow this head of claim.

Leisure buddy

163 The plaintiff claims $248,530 being the future cost of employing a “leisure buddy” for three hours per week. The defendant submits there is no need for the provision of a leisure buddy and this claim should be rejected.

164 At the present time the plaintiff goes on outings such as ten pin bowling, window shopping etc. on Friday afternoons with a “leisure buddy”. The leisure buddy is a male in his thirties who is provided through a nursing agency. The plaintiff’s father gave evidence the plaintiff really enjoys these outings and gets great benefit from them.

165 There is evidence in the plaintiff’s occupational therapist’s report recommending the employment of a leisure buddy.

166 There was evidence from the plaintiff’s father that if commercial carers took care of the plaintiff’s day to day care he would still like to interact with his son and spend as much time with him as possible. The plaintiff enjoys his father’s company more than anyone else’s and in the additional time which would be available to the father he would take the plaintiff to the shops and on other outings.

167 If the father was not available the regular carer could take the plaintiff on outings. Contrary to the plaintiff’s submission, it is not necessary that the person who provides the outings on Friday afternoon stand outside the care regime. Indeed, as Dr Henke observed, there is a need to provide some care for the plaintiff whilst on outings and the carer in any event does develop a bond with the plaintiff.

168 In my opinion the leisure needs on Friday afternoons could be adequately met by the plaintiff’s father or as part of the duties required of the regular carers. In my opinion it would not be reasonable to allow the cost of a leisure buddy and I would reject this claim.

Orders

(1) Verdict and judgment for the first, second and third defendants.

(2) The plaintiff to pay the costs of the first, second and third defendants.

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Citations

Mills v Lee [2006] NSWSC 1031

Most Recent Citation

Mills v Lee [2007] NSWCA 332

Cases Citing This Decision

1

Mills v Lee & Ors [2007] NSWCA 332

Cases Cited

3

Statutory Material Cited

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Astley v AusTrust Ltd [1999] HCA 6

State of Queensland v Stephenson [2006] HCA 20

CITATION:	Mills v Lee & ors [2006] NSWSC 1031
HEARING DATE(S):	07/11/2005 - 08/11/2005, 10/11/2005 - 11/11/2005, 14/11/2005 - 18/11/2005, 21/11/2005 - 22/11/2005, 30/11/2005 - 02/12/2005, 05/12/2005 - 06/12/2005, 08/12/2005 - 09/12/2005, 12/12/2005, 14/12/2005 - 15/12/2005
JUDGMENT DATE :	6 October 2006
JUDGMENT OF:	Hislop J
DECISION:	(1) Verdict and judgment for the first, second and third defendants; (2) The plaintiff to pay the costs of the first, second and third defendants.
CATCHWORDS:	Tort law - Medical negligence - Birth injury - No breach of duty - Causative link not established.
CASES CITED:	Neindorf v Junkovic (2005) 80 ALJR 341 Rogers v Whittaker (1992) 175 CLR 479 at 483
PARTIES:	Plaintiff - Joshua Adam Mills by his tutor Leslie Mills First Defendant - Effie Marjorie Lee and Philip George Lee, executors of the estate of the late Eric Bruce Lee Second Defendant - Dr PT Frost Third Defendant - Hospital Corporation Australia Pty Limited t/as The Hills Private Hospital
FILE NUMBER(S):	SC 20176/02
COUNSEL:	Plaintiff - Mr R McIlwaine SC with Mr M Eagle First, Second and Third Defendants - Mr A Sullivan with Mr J Downing
SOLICITORS:	Plaintiff - Velleley & Associates Litigation Lawyers First, Second and Third Defendants - United Medical Protection

Gram stain	Culture	Sensitivities
polymorphs …	culture coliform +++	ampicillin S
gram pos cocci ++	staph albus - scanty	tetracycline S
gram pos bacilli ++	chloramphenicol S
gram negative bacilli …	gentamicin S
epithelial cells +