Sheppard v Swan
[2003] WADC 82
•14 APRIL 2003
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: SHEPPARD -v- SWAN [2003] WADC 82
CORAM: HH JACKSON DCJ
HEARD: 18-22 NOVEMBER 2002
DELIVERED : 14 APRIL 2003
FILE NO/S: CIV 677 of 2001
BETWEEN: TAMMY MICHELLE SHEPPARD
Plaintiff
AND
PAULINE JOY SWAN
Defendant
Catchwords:
Negligence - Medical - Claim by maternity patient against practitioner following vaginal delivery
Legislation:
Nil
Result:
Claim dismissed
Representation:
Counsel:
Plaintiff: Mr J R Johnson
Defendant: Mr P D Quinlan
Solicitors:
Plaintiff: Julian Johnson Lawyers
Defendant: Clayton Utz
Case(s) referred to in judgment(s):
Chappel v Hart (1998) 195 CLR 232; 72 ALJR 1344
Rogers v Whitaker (1992) 175 CLR 479
Rosenberg v Percival (2001) 75 ALJR 734
Case(s) also cited:
Nil
HH JACKSON DCJ: The plaintiff was born on 5 August 1972. In or about October 1997, having been married in 1994, she became pregnant for the first time. On 16 December 1997, she consulted the defendant who is a general medical practitioner and to whom she had been recommended by another general practitioner. The child was born by vaginal delivery on 9 August 1998, weighing 11 pounds 13 ounces or 5.3 kilograms. All the evidence is that the child was born normal and healthy, and no complaint is made concerning the child. Dr B S Clements, a paediatrician and paediatric respiratory physician, attended the baby about 30 minutes after birth and for a period thereafter. He gave oral evidence essentially confirming his written reports. The reports dated 31 August 1998 and 29 September 1998, Exhibit 11 and Exhibit 12, are to the effect that after a difficult delivery, the baby had suffered no adverse consequences whatsoever. (I will mention later a suggestion given in evidence that the child's development might be checked upon in some years time.)
However, the plaintiff brings these proceedings against the defendant for damages said to arise to her from events during pregnancy, and during and following delivery. The trial was heard over five extended days of hearing.
Pleadings - Claim
It is necessary, I think, to set out fully the relevant pleadings between the parties as the background to the evidence given and submissions made.
The statement of claim, relevantly, pleads as follows:
"4.As from 15 January 1998 until 8 August 1998 the plaintiff routinely attended upon the Defendant in relation to her antenatal care and assessment, attending upon the Defendant on 10 occasions over such period ('the antenatal visits').
5.During the course of the antenatal visits it was evident that the Plaintiff experienced abnormally great weight gain during the course of her pregnancy. Her weight was recorded at 59kg on 15 January 1998 and 81kg on 13 July 1998 (when she was 37 weeks pregnant), a weight gain of 22kg.
6.On 8 August 1998 the Plaintiff was admitted to St John of God Hospital, Murdoch ('the Hospital'), under the care of the Defendant for assessment and if appropriate for induction delivery of the Plaintiff's baby.
7.The Plaintiff commenced experiencing contractions at about 2345 hours on 8 August 1998 initially 15 to 20 minutes apart but increasing to 4 to 8 minutes apart.
8.At or about 07:30 hours on 9 August 1998 the Plaintiff's labour was augmented by the Defendant by means of:
a)The Defendant's artificial rupture of the Plaintiff's membrane;
b)commencement of the Plaintiff on a Syntocinon drip at the rate of 30mls per hour.
9.At or about 07:30 hours on 9 August 1998 the Plaintiff was two to three centimetres cervically dilated and fully effaced.
10.At or about 0800 hours on 9 August 1998 after being advised of the facts pleaded in paragraph 9 herein the Defendant ordered that the rate of the Plaintiff's Syntocinon drip be increased to a rate of 60mls per hour.
11.By about 0920 hours on 9 August 1998:
a)the Plaintiff's contractions had become stronger and were occurring every 2 ‑ 3 minutes;
b)the Plaintiff's cervical dilation remained as pleaded in paragraph 9 herein;
c)the Plaintiff's baby's head was at station ‑1;
12.At about 1030 hours on 9 August 1998 after being advised of the facts pleaded in paragraph 11 herein the Defendant ordered that the rate of the Plaintiff's Syntocinon drip be increased to a rate of 90mls per hour.
13.At about 1100 hours on 9 August 1998 the Defendant ordered that the rate of the Plaintiff's Syntocinon drip be increased to a rate of 120mls per hour.
14.As at 1110 the Plaintiff's contractions, cervical dilation and the position of the Plaintiff's baby's head remained as pleaded in paragraph 11 herein.
15.At about 1130 hours on 9 August 1998 after being advised of the facts pleaded in paragraph 14 herein the Defendant ordered that the rate of the Plaintiff's Syntocinon drip be increased to a rate of 150mls per hour.
16.At about 1200 hours on 9 August 1998:
a)the Defendant ordered that the rate of the Plaintiff's Syntocinon drip be increased to a rate of 180mls per hour;
b)following such increase in the Plaintiff's Syntocinon the Plaintiff's contractions became hypertonic (and continued from that time to be so at all material times up until delivery of the Plaintiff's baby as pleaded later herein).
17.As at 1320 hours on 9 August 1998 the station of the Plaintiff's baby's head remained as pleaded in paragraph 11 and 14 herein.
18.As at 1430 hours on 9 August 1998:
a)The Plaintiff's cervical dilation had increased to 9cm;
b)There had been (relative to the position referred to in paragraph 17) a small progress of the Plaintiff's baby's head to 'spines;'
19.Thereafter, between about 1430 hours and about 1800 hours on 9 August 1998, despite continuation of the administration to the Plaintiff of Syntocinon at the rate pleaded in paragraphs 16(a):
a)the Plaintiff's baby's head remained at 'spines' and had only just progressed to 'below spines' by 1800;
b)The Plaintiff slowly progressed from nine centimetres cervically dilated to full dilation;
c)The Plaintiff was in significant and unrelenting pain.
20.the Defendant was advised of the facts pleaded in paragraphs 16(b), 17, 18 and 19 herein on an ongoing basis over the period from 1200 to 1630 hours on 9 August 1998 by the Hospital's nursing staff.
21.At about 1630 hours on 9 August 1998:
a)the Defendant was advised by a nurse employed by the Hospital (as were facts) that:
i)the Plaintiff was in considerable pain, exhausted and not coping well;
ii)the Plaintiff's blood pressure had risen;
iii)the Plaintiff's face, hands and feet were swollen;
iv)the Plaintiff had requested an epidural top up;
v)there was foetal tachycardia which had been present from on or about 1600 hours.
b)The Defendant authorised that the Plaintiff have an epidural top‑up.
22.At or about 1810 hours on 9 August 1998 the Defendant:
a)arrived at the birthing suite and examined the Plaintiff;
b)advised the Plaintiff that the epidural was not to be topped up again.
23.At 1915 hours on 9 August 1998:
a)the Defendant examined the Plaintiff;
b)the Defendant advised the Plaintiff (as was fact) that there had been no descent of the head despite the Plaintiff pushing;
c)the Defendant requested that the Plaintiff continue to push;
d)the Plaintiff requested a top up of her epidural and this was refused by the Defendant.
24.At 1930 hours on 9 August 1998:
a)the Defendant advised the Plaintiff that she was going to perform an assisted delivery by using vacuum suction;
b)the Defendant did not explain to the Plaintiff what an assisted delivery would entail;
c)the Plaintiff requested that the Defendant provide her with an epidural top up prior to commencing the assisted delivery;
d)the Defendant refused the Plaintiff's request for an epidural top‑up;
e)The Defendant inserted the steel vacuum suction device into the Plaintiff's vagina;
f)The Defendant placed the vacuum suction device to the baby's head and began to pull the baby's head as the Plaintiff pushed;
g)The baby's heart rate started to drop suddenly;
h)The Defendant injected the Plaintiff's perineum with local anaesthetic;
i)Immediately following the injection the Defendant using a pair of scissors cut the Plaintiff's perineum and continued to pull vigorously on the vacuum suction;
j)The baby's head came out but the shoulders were stuck;
k)The Defendant obtained assistance from the midwife in order to pull the baby out.
25.At 19:47 hours the Plaintiff's baby was born and at birth weighed 11 pounds 13 ounces. The baby had shoulder dystocia and cephalhaematoma.
26.By reason of the matters pleaded in paragraphs 17 to 24, herein the Plaintiff sustained personal injuries.
Particulars of Plaintiff's Personal Injuries
a)incision to perineum;
b)pelvic floor injury;
c)nerve damage;
d)bladder dysfunction causing urinary incontinence;
e)blood loss and associated anaemia;
f)post‑traumatic stress disorder and nervous shock.
27.The Plaintiff's injuries pleaded in paragraph 26 herein were caused by the breach by the Defendant of the duty of care owed by her to the Plaintiff pleaded in paragraph 2(d) herein in that she:
a)Failed to identify the presence of cephalopelvic disproportion prior to 1430 hours on 9 August 1998, when the same or its possibility was, or ought to have been obvious to the Defendant due to:
i)the Plaintiff's abnormal weight gain during the course of her pregnancy pleaded in paragraph 5 herein;
ii)the unusual arrested nature of the foetus' descent during the course of labour pleaded in paragraphs 11(c), 14, 17, 19, 19 and 23 herein;
b)failed during the course of the antenatal visits to complete or arrange the completion of any or any appropriate pelvic examination or ultrasound examination of the Plaintiff and her foetus. Had this occurred it would have reinforced the potential for cephalopelvic disproportion during the course of labour;
c)Failed to identify and appropriately address the abnormal lack of progress/descent of the Plaintiff's baby through the Plaintiff's birth canal referred to in paragraphs 11, 14 and 17 herein by 1320 hours;
d)Failed to obtain consultant advice in relation to the abnormal lack of progress/descent of the Plaintiff's baby through the Plaintiff's birth canal referred to in paragraphs 11, 14 and 17 herein;
e)Failed to identify and appropriately address the abnormal lack of progress/descent of the Plaintiff's baby through the Plaintiff's birth canal referred to in paragraphs 18 and 19 herein;
f)Failed to obtain consultant advice in relation to the abnormal lack of progress/descent of the Plaintiff's baby through the Plaintiff's birth canal referred to in paragraphs 18 and 19 herein;
g)Failed to identify and appreciate the significance of the progress abnormalities in the Plaintiff's cervical dilation over the periods referred to in paragraphs 9 ‑ 14 and 18 ‑ 19 herein;
h)As a consequence of her lack of appreciation of the Plaintiff's cervical dilation abnormalities and the abnormal arrest of the baby's progress and the resultant likelihood of cephalopelvic disproportion, she failed to recommend, as she should, that the Plaintiff undergo elective caesarean section at or about 1430 hours or alternatively 1630 hours on 9 August 1998;
i)Failed to immediately recommend that the Plaintiff undergo caesarean section delivery upon her notification of the Plaintiff's baby's tachycardia pleaded in paragraph 21(a)(v) or at least upon her attendance thereafter at 1810 on 9 August 1998;
j)Failed to arrange immediate consultant obstetric assistance and assessment of the Plaintiff upon notification of the baby's tachycardia pleaded in paragraph 21(a)(v);
k)Failed to attend upon the Plaintiff immediately following the telephone conversation at about 1630 hours pleaded in paragraph 21 and to at that time:
i)Inspect the Plaintiff's CTG trace, which at that time clearly indicated that she was contracting at an excessive rate and there was clear evidence of tachycardia (as she was advised by the midwife, as alleged in paragraph 21 herein);
ii)Order suspension of the Syntocinon drip and arrange immediate specialist obstetric assessment of the Plaintiff; and
iii)offer the Plaintiff the option of undergoing caesarean section as an alternative at such time to her continuing to labour. Had she done so, the Plaintiff would at that time have elected to undergo such caesarean delivery.
l)Kept the Plaintiff's Syntocinon drip at a rate of 180mls per hour for over seven hours, which was excessive and caused uterine hyperstimulation;
m)Incised the Plaintiff's perineum without first waiting for the local anaesthetic to take effect;
n)Refused the plaintiff's epidural top‑up pleaded in paragraph 24(c) and (d) which refusal was unreasonable and against the plaintiff's expressed wishes.
28.Further and in the alternative, the Defendant was negligent in her care of the Plaintiff pleaded herein.
Particulars of Negligence
The Plaintiff repeats subparagraphs (a) ‑ (n) to paragraph 27 herein
29.As a result of the Defendant's breach of duty of care and/or negligence the Plaintiff has suffered injury, loss and expense, required treatment and has suffered and will in the future incur medical, travel and other expenses.
30.As a result of the breach by the Defendant of her duty of care owed to the Plaintiff and/or the Defendant's negligence the Plaintiff has suffered pain and suffer, loss of enjoyment of life and is left with residual disabilities.
Particulars Of Loss Of Enjoyment Of Life
And Residual Disabilitiesa)Urinary incontinence;
b)Marital strain and depression;
c)Dyspareunia and consequent diminished enjoyment of sexual intercourse;
d)Inability to bond with her child immediately after his birth;
e)As a consequence of her pelvic floor weakness it is possible that in future she will experience difficulties in vaginal delivery of any children. As such it is likely she will have to deliver any further children by caesarean section;
f)The Plaintiff has suffered loss of enjoyment of life in that her family, household, social and recreational activities, all of which she enjoyed before the events surrounding the delivery of her child pleaded herein have been restricted. Her quality of life has greatly and generally deteriorated.
31.As a result of the Defendant's breach of her duty of care owed to the Plaintiff and/or her negligence, the Plaintiff has needed assistance with household and domestic duties."
Defence
In response, the defence is pleaded thus:
"1.The Defendant admits paragraphs 1, 2, 8(b), 9, 10, 11, 12, 13, 14, 15, 16(a), 17, 18(a), 19(b), 20, 22(a), 22(b), 23, 24(a), 24(c), 24(d), 24(e), 24(f), 24(g), 24(h), 24(i), 24(j), 24(k) and 25 of the Statement of Claim.
2.Save to say that the date the Plaintiff saw Dr Jones was 24 November 1997, the Defendant admits paragraph 3 of the Statement of Claim.
3.Save to say that there were 13 antenatal visits between 15 June 1998 and 7 August 1998, the Defendant admits paragraph 4 of the Statement of Claim.
4.As to paragraph 5 of the Statement of Claim, the Defendant:
a)does not admit that the Plaintiff's weight gain was abnormal;
b)says that the Plaintiff's weight on 15 January 1998 was 60 kg;
c)says that the Plaintiff's weight gain during the antenatal period was 20 kg;
d)otherwise does not admit paragraph 5.
5.As to paragraph 6 of the Statement of Claim, the Defendant says that the Plaintiff was admitted to hospital because she had spontaneous rupture of membranes and induction was medically indicated.
5A.The Defendant says further that:
a)immediately prior to the admission of the Plaintiff to the Hospital on 8 August 1998, the Plaintiff expressed a desire to return home;
b)the Defendant advised the Plaintiff that if she did not agree to be admitted to Hospital it would be necessary to transfer the Plaintiff's care to a specialist obstetrician;
c)the Defendant advised the Plaintiff she could be transferred to the care of a specialist obstetrician if she wished; and
d)the Plaintiff chose to remain under the care of the Defendant.
6.The Defendant does not admit paragraph 7, 16(b), 19(a), 19(c), 21, 24(b) and 26 of the Statement of Claim.
7.The Defendant denies paragraph 8(a) of the Statement of Claim.
8.Save to disagree that the progress was small, the Defendant admits paragraph 18(b) of the Statement of Claim.
9.The Defendant denies that she was in breach of her duty to the Plaintiff as alleged in paragraph 27 of the Statement of Claim and denies the particulars set out in paragraph (a) ‑ (n) therein.
9A.The Defendant says further that on 4 August 1998:
a)the Defendant arranged for the Plaintiff to be reviewed by a specialist obstetrician, Dr Peter Hugo;
b)the Defendant sought Dr Hugo's opinion as to the appropriateness of the Plaintiff undertaking a vaginal delivery;
c)Dr Hugo examined the Plaintiff;
d)Dr Hugo advised the Plaintiff and the Defendant that a vaginal delivery was appropriate;
e)the Plaintiff confirmed that she wished to proceed to a spontaneous vaginal delivery under the care of the Defendant.
10A.The Defendant says further that, following a telephone conversation with a nurse employed by the Hospital at about 1630 hours on 9 August 1998, the Defendant:
a)attended at the Hospital at approximately 1700 hours;
b)observed that the Plaintiff was resting in the birthing suite;
c)examined the Plaintiff's CTG trace;
d)instructed the attending nurse to advise the Defendant if there were any decelerations in the foetal heart rate; and
e)remained at the Hospital until the attendance on the Plaintiff pleaded at paragraph 22 of the Amended Statement of Claim.
10.The Defendant denies that she was negligent as alleged in paragraph 28 of the Statement of Claim or at all.
11.If, which is not admitted, the Plaintiff has suffered injury, loss and expense and required treatment and has suffered and will in the future incur medical, travel and other expenses as alleged in paragraph 29 of the Statement of Claim, the Defendant denies that these arose out of any breach of duty of care owed by her to the Plaintiff or out of any negligent treatment of the Plaintiff by her.
12.If, which is not admitted, the Plaintiff has suffered pain and suffering, loss of enjoyment of life and is left with residual disabilities as alleged in paragraph 30 of the Statement of Claim and particularised therein, the Defendant denies that these arose out of any breach of a duty of care to the Plaintiff or out of any negligent treatment of the Plaintiff by her.
13.If, which is not admitted, the Plaintiff has needed assistance with household and domestic duties as alleged in paragraph 31 of the Statement of Claim, the Defendant denies that these were required as a consequence of any breach of her duty of care owed to the Plaintiff or as a consequence of any negligent treatment of the Plaintiff by her."
Law
To succeed, the plaintiff must not only, of course, establish a duty of care. She must give content to it in the particular circumstances. She must show its breach. She must show that its breach is causative of loss or injury.
In the present case, the plaintiff complains of both breach of the defendant's duty of care in the areas of lack of information and advice and in the areas of diagnosis and treatment, in each case on more than one occasion or situation.
In summary, the plaintiff's case in opening raised a number of matters of which she complains. One is that as events unfolded during pregnancy and delivery, problems were encountered which should have, but did not, result in the defendant seeking specialist obstetric intervention.
One of these was the plaintiff's abnormal weight gain during the first 34 weeks of pregnancy.
Another, related, matter is alleged to be that the plaintiff told the defendant during pregnancy that if the baby was to weigh in excess of nine pounds the plaintiff elected to have a caesarean section birth, and that as the defendant did not perform such births, that would necessarily involve another medical practitioner.
Given these matters, it was said that ultrasound tests should have been conducted to establish likely birth weight.
Even in the event of the plaintiff deciding against an elective caesarean section birth, the plaintiff should not have been permitted to go past full term before labour, but birth should have been induced earlier. Further, during and after birth, a number of measures should have been handled differently. The plaintiff's management during delivery should have been conducted "very differently" from the way it was. This proposition includes a number of different components.
In Australia, the High Court of Australia has made it clear that except in the case of an emergency or where disclosure would prove damaging to the patient, a medical practitioner has a duty to warn the patient of a material risk inherent in proposed treatment. In Rogers v Whitaker (1992) 175 CLR 479, the High Court described the duty as being one of disclosure, rejecting use of the concept of informed consent as amorphous and apt to mislead. A risk is material if, in the circumstances of the particular case, a reasonable person in the patient's position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it. The fact that a body of reputable medical practitioners would have given the same advice as the medical practitioner gave does not preclude a finding of negligence. Generally speaking, whether the patient has been given all the relevant information to choose between undergoing and not undergoing the proposed treatment is not a question the answer to which depends upon medical standards or practice: Rogers v Whitaker (supra).
A distinction is clearly drawn between the provision of advice and information and non‑disclosure of risk on the one hand and diagnosis and treatment on the other:
"In Australia, it has been accepted that the standard of care to be observed by a person with some special skill or competence is that of the ordinary skilled person exercising and professing to have that special skill. But, that standard is not determined solely or even primarily by reference to the practice followed or supported by a responsible body of opinion in the relevant profession or trade. ... Further, and more importantly, particularly in the field of non‑disclosure of risk and the provision of advice and information, ... the courts have adopted the principle that, while evidence of acceptable medical practice is a useful guide for the courts, it is for the courts to adjudicate on what is the appropriate standard of care after giving weight to 'the paramount consideration that a person is entitled to make his own decisions about his life'.
...
Acceptance of this approach does not entail an artificial division or itemization of specific, individual duties, carved out of the overall duty of care. The duty of a medical practitioner to exercise reasonable care and skill in the provision of professional advice and treatment is a single comprehensive duty. However, the factors according to which a court determines whether a medical practitioner is in breach of the requisite standard of care will vary according to whether it is a case involving diagnosis, treatment or the provision of information or advice; the different cases raise varying difficulties which require consideration of different factors. Examination of the nature of a doctor‑patient relationship compels this conclusion. There is a fundamental difference between, on the one hand, diagnosis and treatment and, on the other hand, the provision of advice or information to a patient. In diagnosis and treatment, the patient's contribution is limited to the narration of symptoms and relevant history; the medical practitioner provides diagnosis and treatment according to his or her level of skill. However, except in cases of emergency or necessity, all medical treatment is preceded by the patient's choice to undergo it. In legal terms, the patient's consent to the treatment may be valid once he or she is informed in broad terms of the nature of the procedure which is intended. But the choice is, in reality, meaningless unless it is made on the basis of relevant information and advice. Because the choice to be made calls for a decision by the patient on information known to the medical practitioner but not to the patient, it would be illogical to hold that the amount of information to be provided by the medical practitioner can be determined from the perspective of the practitioner alone or, for that matter, of the medical profession. Whether a medical practitioner carries out a particular form of treatment in accordance with the appropriate standard of care is a question in the resolution of which responsible professional opinion will have an influential, often a decisive, role to play; whether the patient has been given all the relevant information to choose between undergoing and not undergoing the treatment is a question of a different order. Generally speaking, it is not a question the answer to which depends upon medical standards or practices. Except in those cases where there is a particular danger that the provision of all relevant information will harm an unusually nervous, disturbed or volatile patient, no special medical skill is involved in disclosing the information, including the risks attending the proposed treatment. Rather, the skill is in communicating the relevant information to the patient in terms which are reasonably adequate for that purpose having regard to the patient's apprehended capacity to understand that information. ... The law should recognize that a doctor has a duty to warn a patient of a material risk inherent in the proposed treatment; a risk is material if, in the circumstances of the particular case, a reasonable person in the patient's position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it. This duty is subject to the therapeutic privilege.": Rogers v Whitaker (supra)
The concept of causation also is necessarily somewhat different in focus in the area of information and advice from that in the area of diagnosis and treatment. Rogers v Whitaker (supra) is a decision in the area of information. Because the plaintiff was not warned of the risk, she underwent surgery she would have forgone had she been warned. Physical injury directly followed. So the plaintiff claimed, albeit unsuccessfully, in Rosenberg v Percival (2001) 75 ALJR 734. So also in Chappel v Hart (1998) 72 ALJR 1344.
In that case, the plaintiff had forgone the opportunity to have the surgery carried out by a more experienced surgeon or to have it deferred. The plaintiff had specifically expressed concern as to the risk of certain results occurring as a result of the surgery. There was no warning and the risk eventuated. The plaintiff relies heavily on that decision. In that case, the condition, like pregnancy, was progressive so that surgery was "inevitable" at some time. It is important to note that if the harm was shown as probably occurring no matter when or by whom the surgery was performed, questions of causation arise. Even when that test is satisfied, allowance is to be made when assessing damages for that probability.
Unlike the factual situation in, for example, Rogers v Whitaker (supra) or Rosenberg v Percival (supra), pregnancy differs from elective surgery. Some choices between medical treatments and procedures are necessarily involved (excluding the possibility, for present purposes, of entirely medically unaided vaginal delivery). The alternative choices each involve various risk factors to be balanced against both what might be regarded as medically beneficial or safeguarding factors and what might be as psychological and emotional factors.
Plaintiff's evidence
The evidence upon which the plaintiff's case to an extent rests requires examination of her initial and subsequent consultations with the defendant.
Asked about her introduction to the defendant and their initial discussions, the plaintiff said:
"I went in and saw Dr Jones. He took a urine test and confirmed the pregnancy. ... I didn't know who could deliver my baby. I asked Dr Jones if he delivered babies. He ... doesn't ... any more and ... went on to say that Dr Swan in the medical group of Kardinya performed deliveries, was an obstetrician.
Did you at this time consider seeking a specialist obstetrician?‑‑‑I didn't really. ... It was my first baby. I didn't know you saw specialists. ... I really didn't know a lot about gynaecologist specialists. He referred me to Dr Swan, so I was happy with that.
...
What was discussed at your first meeting with Dr Swan?‑‑‑The first meeting was probably the longest. My husband came as well. We discussed really everything, my family history, medical history ... We discussed I would be going monthly first up, then fortnightly, then weekly. She discussed that she would be taking my urine and blood pressure and weight every visit. She told me that she doesn't perform caesareans, that she can deliver babies naturally, and we also discussed the usual weight gain of a pregnancy. ... 12 to 13 kilos as the average. ... she said if there were any problems along the way, no matter how small, she would refer me to a specialist. So my husband and I were quite happy about that."
Her health was good and she was an active, sporting type of person. She weighed 59 kilograms.
No issue is taken as to the 13 visits by the plaintiff to the defendant which occurred thereafter prior to delivery, save that the plaintiff says she was reassured from time to time by the defendant about her weight gain and the likely weight of the baby. The defendant told her initially that she should gain about 13 kilograms in weight, a normal gain, but her weight gain, which the defendant regularly recorded, was some 19 kilograms by 34 weeks into pregnancy. Otherwise, the pregnancy went normally. She was careful about her diet and became concerned about her weight gain, which was all in the abdominal area.
She said on each visit from that time, she asked the defendant how big the baby was likely to be and was reassured:
"She told me roughly 7 to 7 and a half pound. She didn't expect the baby to be large at all. I know I remember saying, I mean, I kept stressing that I didn't want a large baby. My boss at work's wife had just had a baby over 9 pound - I think it was 9 and a half - and she had had a lot of stitching. ... I do know it was quite a horrendous ordeal for her. That worried me and from then I started discussing with Dr Swan, I didn't want to have - the thought of having an episiotomy or being torn petrified me, so that was why I was worried. If this baby is this big, I thought I was going to be cut down there or be torn and I was petrified of having an episiotomy or being cut down there.
Did you ever mention to her a limit in terms of what you were prepared to - - -?---Yes, like I just said, I mean, I said I didn't want it to be a large baby. Anything over 9 pound, I was concerned and I said I didn't want to deliver a large baby over - I mean, I considered a large baby to be over 9 pound and Dr Swan was aware of that.
At these antenatal visits that you were having with Dr Swan, was she doing anything to assess the size of the baby?---I didn't have any internals until the very end. ... I would say probably from halfway through my pregnancy towards the end I used to go and lie on the bed and she would just, I am not sure what she was doing, I don't know, I mean she pushed sort of round the sides and feel the baby and she also had this device. I gather it was for listening to the baby's heartbeat. She would listen, so she would do that, but the internals, they didn't start till the last month."
Two or three weeks before the baby was due, she was examined by the defendant who told her she should prepare for a caesarean:
"Every time she would examine me, she asked me to sit up and the baby's head would engage but as soon as I lay down, the baby's head popped back out so she had said at that stage that, you know, 'You might have a trial labour but if things don't progress we will call in a specialist for a caesarean. We won't keep you labouring all day."
The baby was due at the end of July or early August. On 3 August, the defendant told her she would arrange a further CT scan, then induce the baby on the following Saturday.
The plaintiff had a CT scan on 4 August. The defendant examined her. The baby's head was engaged. The CT scan had not reacted:
"We discussed that the CT scan hadn't reacted and at that point Dr Hugo walked past. ... and because we were discussing the CT scan, I remember Dr Swan saying, 'Here's Dr Hugo. Shall we get his opinion?'"
The defendant had previously arranged that Dr Hugo perform an ultrasound and the plaintiff had agreed that "if there were any problems Dr Hugo would be the specialist that we would refer to". The defendant asked him about the CT scan not reacting and whether he agreed the plaintiff should be induced the following day. After a "really rough" vaginal examination, Dr Hugo advised the defendant to arrange for her to be given food and drink and if the scan reacted, for her to be induced the following Monday. Dr Hugo said the plaintiff would probably go into labour naturally soon after his examination and left. Later, scans were taken and reacted, so the plaintiff returned home.
The plaintiff said that the defendant had never suggested an ultrasound to predict the baby's weight. If she had, the plaintiff would have wanted this:
"I definitely would have done it. I was already concerned about the large size of my baby and ... every time Dr Swan ... said, 'No, it's fine, it's average,' and, I mean, I'm not the expert, ... You know, you trust their advice. ... I mean, at least the ultrasound, if it wasn't big would have put my mind at rest, but if it was big, I wouldn't have even considered having a vaginal delivery.
Would you have done that even if you were told that ultrasounds are not 100 per cent reliable and there is a big margin for error?---Yes."
After losing some fluid on Friday night, the plaintiff was admitted to the hospital on Saturday, 8 August. Contractions commenced overnight. About 7 am on 9 August, the defendant visited the plaintiff:
"When Dr Swan came in, ... I said I had had a discussion with the midwife the night before who had actually tested me for two heartbeats. She believed that that's how big I was. Up to that stage, Dr Swan assured me, 'Tammy, this isn't going to be - I am not expecting this to be a large baby. 8 to 8 and a half at the max.' I had also discussed with the midwife the night before having an epidural because up to that stage I had sort of said with Dr Swan, 'Look, we'll try and do this naturally, so we'll try and do without an epidural.' But the midwife the night before said, 'You are up for a big day, a big labour,' so I sort of said, 'If things get bad, Dr Swan, we're thinking about having the epidural.' Dr Swan made a comment that St John of God Hospital had an 85 per cent epidural rate which was ridiculous. I just said, 'We'll see how we go, I'll see how I go.'"
The plaintiff's evidence then traversed in great detail, the course of the next hours as she perceives them. There is no doubt that she endured a long, painful and distressing labour before giving birth, assisted with the use of the vacuum extraction technique. In my view, it is unnecessary to detail all the evidence given about those hours by the plaintiff, some of the other medical staff and the defendant, for the reasons I set out below.
At the end, after birth was achieved, the plaintiff was further distressed by the fact that the baby did not cry or move. She says she briefly thought the child was dead. She was also distressed at what she thought was happening to herself and by what she perceived as lack of care from the defendant following the birth in terms of pain relief. It is not necessary either to set out here the various complaints that she makes about this period. She had lost a lot of blood. She was told by another medical practitioner that the baby had had a difficult birth. She decided to not allow Dr Swan to treat her any longer.
She told Dr Swan the next morning.
It is clear that, especially during the early part of this time but even after discharge from hospital, the plaintiff suffered some pain and discomfort and disability. She says she suffered dizziness from loss of blood, had breastfeeding difficulties and feared bathing the baby in case she fainted.
Much of the pleadings and a very great deal of the evidence was concerned with the activities or lack of activity of the defendant during these hours. Indeed, much of the factual pleading of events was not in issue. The plaintiff says that during these hours in numerous ways, spelled out in subpar (a) to subpar (n) of par 27 of the statement of claim, the defendant breached her unchallenged duty of care to the plaintiff. As a result, she says, she suffered the particularised personal injuries, incision to perineum, pelvic floor injury; nerve damage, bladder dysfunction causing urinary incontinence, blood loss and associated anaemia, and post‑traumatic stress disorder and nervous shock.
The plaintiff was in the hospital for nine days including the days of admission and discharge. A complaint is made that that was an unusually long time but, apart from her own statement of belief, there is no evidence of that. Although a number of persons of relevant knowledge gave evidence of other matters, they were not asked on the point. Her conclusion that this was excessive was explained thus:
"Which for a normal vaginal delivery you're usually only in hospital for a few days.
QUINLAN, MR: Well, how many deliveries had you been to before this one?---Well, just from friends you visit or - I mean, well, even by what the magazines, the antenatal visits, what the midwives say, you're not expected to be in hospital a week.
I suggest to you that in a private hospital like St John of God Murdoch a stay of a week is not an excessive stay in hospital?‑‑‑Well, that's your opinion, and that's mine.
Certainly you realise that with a caesarean section you would be in hospital for at least that length of time?---That's correct, yep."
About six weeks after discharge, she started to suffer bad incontinence problems. Over time, bedwetting reduced from weekly bedwetting to once in two months after four to six months. However, she had problems daily with incontinence. When the first child was 20 months, she became pregnant with a second. Before and after that child was born, the incontinence issue still remained and she consulted Mr Tim Jeffrey. She had attempted various exercises to strengthen her pelvic floor without success. In January 2002, she underwent a posterior vaginal repair with a minimally invasive vaginal sling procedure. She was in hospital for eight or nine days, suffered post‑operative infections and consulted Mr Jeffrey on a number of further occasions, having various tests and taking various antibiotics. Eventually, in September 2002, Mr Jeffrey made an alteration which involved overnight hospitalisation. This much reduced the problem, although a small loss of continence remains.
She said the vaginal stitching and scarring had made intercourse painful and that, to an extent, that problem also continued.
She continued:
"I don't have a very good self‑image of myself at all really. I have a lot of scarring from stretch marks right across my abdomen, round my back. Obviously he was a huge baby. I stretched an unbelievable amount. I have got scars all over my belly. I won't be seen dead in a pair of bathers or bikini or short tops. I hate my husband looking at it. I will make sure that if I have a shower or get undressed, he is not in the room when I do it. I hate it. I hate looking at myself in the mirror with those scars so I won't - I hate it. I hate him looking at it or anyone else. I don't want anyone else to see the scars.
Did this cause issues in relation to your marriage since Shane's birth?---Mark always tells me I shouldn't worry about it. It doesn't worry him, but it worries me. If I don't like it on me, I don't want anyone else to see it. It frustrates him and he, sort of, gets angry at me about it, but I can't help it.
You have had two children now. Do you think that your relationship with the two children is different because of the manner in which Shane was born?---I love both of my kids, but I know the difference between having Mitchell and having Shane. Mitchell was there instantly. The minute he was born he was on me. He was on me while I was stitched. He never left my side. You know, I could breastfeed him, I could do his nappies. I could do everything. And Shane, I wasn't given a chance. I used to have to send someone in to the nursery to ask about him or buzz someone else to look after him. The bonding between Mitchell and I was so different to Shane. I wasn't given a chance with Shane. The only other thing is that I have always felt bad about putting Shane in that position. I mean, I always kick myself for not acting on my instinct, you know. I in myself knew that something was wrong. I kept saying, 'This baby is huge. Is it big?' and Dr Swan kept assuring me that it wasn't and if I had only done something, you know, kicked up more of a fuss. You believe the doctor. You think, well maybe I am just whingeing about some crap. Maybe, you know, you are a bit over‑exaggerated or whatever but I will never forgive myself for not - I knew something was wrong. I should have done something, you know, but I wasn't to know. I was being reassured by Dr Swan and he nearly died because of that."
Cross‑examined, the plaintiff agreed she had attended ante‑natal classes conducted by midwives as well as consulting Dr Swan, and was aware of matters such as ante‑natal exercises and the various methods of delivery and of the types of painkilling approach used in childbirth. She agreed that both with Dr Swan and with a midwife at the hospital prior to birth, she had expressed her preference for natural birth with as little use of painkillers as possible. Dr Swan had discussed with her in great detail her great fear of either an episiotomy or a tearing naturally:
"Yes, and you understood the difference between an episiotomy and a tear that occurred naturally?---Yes. I had discussed this in great detail with Dr Swan because it petrified me, the idea of either - Dr Swan had informed me that through careful breathing, listening to her instructions, if I breathe instead of pushing, it could be avoided. We discussed it in great detail and she actually wrote a letter to the hospital stating that, you know, 'Episiotomy to be avoided,' but she knew I was petrified about being cut down there.
... Dr Swan informed me that it was better to have a tear than episiotomy, a small tear.
... The whole conversation was that I wanted to avoid being cut there. That was what my whole concern was. That's why we had a whole conversation about it and a letter was written to the hospital, for her to recall, for her memory."
She agreed the defendant had explained that she was a general practitioner, not a specialist obstetrician, and did not perform caesarean section deliveries, but that if there were any problems, however slight, a specialist would be brought in. She said she did not recall the defendant saying that if at any time she wanted to transfer to a specialist, the defendant would not be offended.
She said that getting closer to term, she started to think of having a caesarean section and that the defendant told her it was a possibility. Then she said:
"I suggested to Dr Swan that if this was going to be a large baby, I wanted a caesarean. I didn't think I could give birth. I didn't want to give birth naturally to a big baby. I was petrified of being cut and having stitches down there and if it was going to be a big baby, I wanted a caesarean. My husband was even present at this.
...
It's the case, isn't it, that Dr Swan in fact agreed with you that she did think that the baby was going to be a large baby but that what was important was whether or not you had an adequate pelvic size to be able to deliver the baby?---Dr Swan never agreed that my baby was large. I don't know what Dr Swan classifies as a large baby. Up to my last visit at surgery, 7 to 7 and a half pounds, and the day I expressed my concerns in the hospital, I said, 'That's the midwife that has confirmed - now as well expressed a concern about the size of my baby,' and it was, '8, 8 and a half at the maximum, Tammy. I assure you.' That was the day Shane was born."
She denied that the defendant reassured her that what was important was the pelvic size and the baby would fit through the pelvis.
Nor did the plaintiff ask for a caesarean section. She denied that the defendant discussed the possibility of seeing a specialist to confirm that everything was in order for a vaginal delivery.
The only consultation with a specialist took place with Dr Hugo at St John of God, Murdoch, and that was by chance, as he happened to be walking past.
Before that, the defendant had never indicated that it might be a good idea to see a specialist to confirm that everything was okay:
"She never discussed - she never accepted the fact that I was large and if she had, she wouldn't have let me go over a week overdue. If she thought that I was large and that baby was large, why would you let me go over date, past the due date if that is the case?"
Nor did she discuss vaginal delivery or the weight of the baby with Dr Hugo. She denied that Dr Hugo had said that the head of the baby was well down and would "fall out". Dr Hugo discussed awaiting a CT scan and possibly inducing her after making a vaginal examination. She agreed that she understood that he was saying that as a result the birth of the baby might be six days later and by vaginal delivery but denied that Dr Hugo reassured her she could deliver the baby vaginally. Dr Hugo's concern was for the safe delivery of the baby.
She agreed she had little memory of the appointment with the defendant on 7 August. She was asked:
"Do you recall then Dr Swan discussing that, yes, this would be a big baby, that Dr Hugo had seen you and that that shouldn't be a problem?---Dr Swan never, ever told me that my baby was going to be a big baby. I would never have progressed to a natural delivery if I knew my baby was going to be a big baby.
What you mean is not a big baby but a baby of such a size that it was going to cause you problems?---Anything over 9 pound to me was a big baby. Dr Swan knew that. We had discussed this because we had talked about, you know, the biggest thing, the reason why it kept coming up was because of the episiotomies and the tears and I didn't want any of that.
I suggest that that's a reconstruction that you have made after the event, the importance that you are placing on the figure of 9 pounds, that in fact it was discussed that it was a big baby and that it would be a long labour?---It was never discussed and I know because it was my biggest concern the whole way through the last 2 months of my pregnancy, and every time I was reassured.
Do you remember discussing epidurals towards the end of July with Dr Swan?---I remember discussing epidurals but I don't recall at what particular time. I have spoken to her about them.
I suggest to you that at the appointment on 27 July, the appointment at the end of July, Dr Swan indicated that you should consider ... having an epidural because this was going to be a long labour?---Never. The only time that Dr Swan requested an epidural was the time when the head wasn't engaging and ... when I would sit up on her examination, the baby's head ... go into the correct place but when I lay down, he would pop out of place. Dr Swan then actually asked me or told me that we might be in for a caesarean if the baby's head is not going to engage properly. We discussed the epidural then because I actually said, 'Can I be knocked out for the caesarean or do I actually have to be awake?' That's when we discussed the epidural then at full length, that it's safer for the baby to have an epidural through caesarean. Dr Swan never recommended me to have an epidural during the natural delivery because of the big baby."
The defendant never suggested the baby would be more than 8‑1/2 pounds, although the defendant knew that was the plaintiff's biggest concern. At the hospital, the defendant reassured her, saying the baby would be between 8 pounds and 8‑1/2 pounds, the latter being the maximum.
The plaintiff also denied that, after confirmation that the membranes had ruptured, she had wished to go home overnight and that the defendant had told her this was inadvisable and that if the plaintiff did return home, then the plaintiff's care would be transferred to a specialist.
She agreed in cross‑examination that she understood vaginal delivery, if possible, to be better for the health of the baby than caesarean section and that caesarean sections are major procedures carrying significantly higher risks usually than vaginal delivery. She was, however, she said, unaware of some of the details of those risks. Notwithstanding that, and the fact that she chose vaginal delivery for the second birth, she says that had she known of the facts, she would, during the day of birth, have chosen caesarean section because of her own pains and difficulties.
"If I had have been offered a caesarean earlier I would have taken it.
Why didn't you ask for one?---Dr Swan wasn't around then when I was in the, I mean - - -
You didn't raise it with anyone, though, in the afternoon?---No. I can't say why I didn't ask for one.
Because it wasn't even entering your mind?---I wanted that baby out. I wanted an end to it all.
Of course you did. You are in the middle of a labour and you want to get to the end of the labour, but - - -?---And I was already worried about the size of that baby. I mean, if I had had a caesarean offered to me then, I would have, I mean, I would have jumped at the chance. I already had the worst concerns in my mind about the size of this baby and Dr Swan keeps reassuring me. I have got a midwife that believes it's a big baby. I mean, I was unsure of myself being able to deliver that baby. It's only that you have got a doctor that you believe is competent telling you that, 'Yes, you are going to be able to deliver this baby fine.'
But now you say you are sure that you would have had a caesarean?---If somebody had offered me a caesarean, I would have definitely considered a caesarean.
If somebody could take away the traumatic delivery it was at the end, that's what you would have wanted, isn't it?---I wish I had never had the delivery I had at the end. Yes, for sure, but, I mean - - -
It's taking away the traumatic delivery that you experienced at the end which is what your decision is based on?---I am not basing my decision on what has happened as an after‑effect, no.
Nothing that you did in the afternoon indicates that there was any contemplation from you. Nothing that you said to the midwives is there anything that suggests that you were contemplating a caesarean section in the afternoon, is there?‑‑‑No, but they never offered it to me either."
In re‑examination, the plaintiff agreed that in discussing pain relief issues prior to her admission to hospital, she had discussed with the defendant the possibility of a caesarean section being necessary because of the baby's head not being positioned correctly:
"I sort've said, 'Well, do I go under a general?' and we'd gone into great detail, that generals are dangerous for the baby and, you know, a greater risk with a general. Yes, need a caesarean, 'I would strongly recommend the epidural. I don't recommend the general anaesthetic at all,' so, yes, we discussed the epidural then."
Asked about her concerns about bodily stretch marks, she said:
"I've got severe stretch marks. They only occurred in the last few weeks of my pregnancy.
Can I take it that you don't think that those stretch marks wouldn't be there if you'd had a caesarean section on 9 August?‑‑‑By that time they would've but I shouldn't have got to the stage where he was that big.
Well, stretch marks were certainly evident a couple of weeks before?---That's correct.\
And you don't attribute the stretch marks to the fact that you had a vaginal delivery rather than - - -?---No. I contributed it to the weight gain and the size the baby got to, which it should never have got to."
The plaintiff's claim on that issue must relate to negligence alleged against the defendant prior to or at a point of time when she alleges stretch marks had not appeared and to consist of not having arranged a caesarean section at that point of time.
She said she had bedwetting problems six or eight times over eight months until she finally resolved them by visiting the toilet two or three times each night. The problem was worst shortly after her first birth. She agreed they had resolved to a degree before her second pregnancy when they again worsened. The plaintiff saw Dr Gunnell concerning urinary incontinence in October and November 1998. He referred her for physiotherapy, advising that until she had completed her family, surgery should be delayed. She saw Mr Jeffrey about it almost a year after her second delivery. When she saw Mr Jeffrey, they were as they had been following the first birth.
She says she was still deciding on her family size and denies that this was because her problem had largely resolved. She was told that another vaginal delivery could worsen the problem, although Dr Gunnell said the damage was already done. She said that prior to the second birth, she had a "full‑on" incontinence problem which could not get worse and she was, in any event, already planning corrective surgery.
The plaintiff was also cross‑examined as to what she had told Dr de Felice, a psychiatrist, as to advice she had been given concerning the questions whether her first child had suffered any long term damage at birth and of her relationship with the child and also as to whether her second son suffered asthma. Strictly, the first and last of these issues are outside the scope of these proceedings. They are all relevant, however, but only as to issues as to her state of mind. There is also an issue as to what she told Dr de Felice about the defendant having sutured the episiotomy before the placenta was delivered. It is not possible to make findings as to what she said exactly to Dr de Felice. In each case, though, it can be said that the plaintiff has apparently taken a "worst case" view and has relied on third hand "knowledge". Her complaint in respect to the second matter really is that she was unable to have adequate time with the baby during the week or so after birth.
Plaintiff's husband
The plaintiff's husband, Mr M A Sheppard, gave evidence that at an early appointment, the defendant had told his wife to expect weight gain of 12 or 13 kilograms. After the plaintiff had gained 16 kilograms after about seven months of pregnancy, they expressed concern to the defendant but were reassured the baby would weigh seven pounds or 7‑1/2 pounds. The possibility of caesarean section was not raised by the defendant. The plaintiff had said that if the baby was going to be big, she would rather have a caesarean delivery.
Cross‑examined about his recollection of discussions with the plaintiff prior to the plaintiff's admission to hospital, he agreed that the defendant had initially informed the plaintiff that she did not perform caesarean sections and that if there were any problems, a specialist would become involved. At seven months, when the plaintiff had added 16 kilograms, they "knew that something was not right". His wife was paranoid about her weight. The defendant assured them the baby would weigh seven pounds or 7‑1/2 pounds, which the plaintiff agreed was acceptable. The question was raised constantly thereafter and they were reassured. On the day of induction, the defendant assured the plaintiff in his presence that the weight of the baby would be eight pounds to 8‑1/2 pounds.
It was put to him that he was reconstructing matters after the event:
"I suggest that this is more the result of what you can remember from your discussions with your wife than it is about what happened on 9 August 1998?---No. That morning when Dr Swan told us it was going to be 8, 8 and a half - because if it was going to be any bigger, like, around 9, 9 and a half, we would've opted for a caesar because my wife was petrified of being cut down there."
He denied that the plaintiff had said words to the effect that whilst the plaintiff had a large baby, large babies can be delivered if the pelvis is adequate:
"The question of a caesarean section delivery was not something which your wife specifically referred to Dr Swan?‑‑‑When, during the birth or - - -
During the antenatal visits?---It didn't really come up, although if she was going to have a big baby then she would prefer to have a caesarean.
She didn't say, 'If I'm going to have a big baby I want a caesarean section,' did she?---That's what Tammy did.
That's what, no doubt, you would like to have happened after the traumatic experience of your son's birth, but at the time there was no mention of a caesarean section if it was going to be a big baby?---Yes, there was because Tammy didn't - Tammy was petrified of having a big baby. She didn't want a big baby ‑ ‑ ‑
You knew that Dr Swan didn't perform caesarean section procedures?---Yes, that's right. She told us that.
I suggest to you that if there was a suggestion that you wanted a caesarean section baby, you would have been referred to a doctor who would do one?---Yes, that's right.
There wasn't a suggestion - - -?---We'd spoken about if Tammy got - if the baby was going to be big that we would want a caesar but, I mean, after that it never - that was, you know, in the first few visits and it didn't come up after that.
...
If you could turn back the clock you would like to think that something had been said earlier about having a caesar?---Yes, but nothing had been said.
No. Nothing had been said by Dr Swan. Nothing had been said by your wife?---Only at the beginning. We discussed that right when Tammy first became pregnant.
Nothing was said about, 'I want a caesar if the baby is big'?‑‑‑That's what Tammy asked. That's what we've said in the beginning. We said, 'If the baby looks like it's going to get big we'd rather have a caesarean.'
You said that at the beginning?---Yes, when we first met Dr Swan.
So that wasn't said when the weight gain went on?---No, because the baby didn't appear to be that big.
Sorry. At the very beginning of the antenatal visits you're saying it was then that your wife said - - -?---I mean, Tammy said, 'If it looks like I'm going to have a big baby, I'd rather have a caesarean than be torn and cut.'
Why would she - - -?---Because she was paranoid about being cut. It only came up maybe that one time to try and like - she just said, 'I don't want a big baby. If it looks like I'm going to have a big baby, you know, I'd rather go down that road.'
It only came up one or two times, did it?---About having a caesarean?
Yes?---Yes, in the beginning; yes, that's all I - - -
In the very beginning?---Yes. Well, the first 2 or 3 months.
Not in the last month before birth?---Not that I can recall.
No?---Because Dr Swan reassured us that - - -
So not at the time when you say your wife has put the weight on?---I can't recall, no.
In fact never?---Maybe never. I don't recall.
Never in the antenatal visits was it said - - -?---Only at the beginning.
- - - 'If it's a big baby I want a caesarean section'?---Yes, Dr Swan knew that. She knew that. It was quite clear.
It was quite clear?---Dr Swan agreed with us, 'If it looks like it's going to be a big baby - if there are any problems she wouldn't hesitate to get a specialist.'
Yes. That's what she said, that she would get a specialist if she thought it was necessary?---That's right.
There wasn't discussion where it was specifically said, 'I want a caesarean section if it's a big baby'?---That's what I just said that's what - we just said, 'If it's going to be' - like, at the same time if it looks like it's going to get big we'd rather have a caesar than being cut or torn.
This was right at the beginning?---Yes, the first few visits."
After the plaintiff's admission to hospital, she had mentioned to him that Dr Hugo had come in and that "everything seemed to be okay". On the morning of 9 August, the defendant had indicated that she thought the baby would weigh eight pounds or 8‑1/2 pounds. Mr Sheppard said that if she had said nine pounds or 9‑1/2 pounds, the plaintiff and he would have wanted a caesarean section and had assumed that that would have occurred. It was put to him that he would not have taken particular note of whether a nine pound or 9‑1/2 pound baby was particularly large and call for a caesarean section. He replied that, as a father for the first time, "you sort of, by listening to different people when they've had their kids you say 'That's so big and that's so big' and you get to know, sort of, what a big baby is".
As with others, I do not intend to summarise his evidence of events during labour and delivery.
It is obvious from his evidence that Mr Sheppard found the labour and delivery extremely distressing and not unnaturally accepted his wife's position. It is also obvious that he has no scientific or medical basis for a number of his beliefs or assumptions and as a young father experiencing the process for the first time in what was a difficult case, was out of his depth in understanding the events which were occurring around him.
Defendant's evidence
The defendant was admitted as a medical practitioner in 1977, and practised as a general practitioner but with a practice in obstetrics. She had held a diploma in obstetrics and gynaecology from the Royal College of Obstetricians and Gynaecologists since about 1981 and, by 1998, had delivered or assisted in the delivery of more than 1,500 babies. She estimated that more than 100 weighed in excess of 10 pounds. By 1998, she was delivering about 130 babies annually. Of these, 80 per cent were vaginal deliveries. In the other 20 per cent, she assisted with caesarean sections. She is also a Fellow of the Royal Australian College of General Practitioners:
"In terms of your own practice, what happened in relation to caesarean section deliveries?---The caesarean section deliveries that I assisted at were - some were elective. If the baby I found was breech, I would have to refer it during its antenatal care to a specialist, because breech deliveries now require usually a caesarean section by a specialist. If there were other problems I would refer them to a specialist and occasionally when they would come to caesarean section the specialist would ring me and say, 'Do you want to come in and do a caesar with me?' because often the obstetrician did like to have a GP like myself with them. I assisted always at the emergency caesarean sections. If I had been looking after a woman in labour, the baby had become distressed or the labour had become obstructed, I would assist at that delivery. I cannot remember not assisting at an emergency caesarean section.
But in terms of doing caesarean sections yourself, was that something that formed part of your practice?---No."
The defendant outlined the general pattern of discussions with pregnant women on first visits and produced the original antenatal card concerning the plaintiff, Exhibit 10. She recalled the plaintiff's first visit. She had told the plaintiff she did not perform caesarean sections and that if at any time the plaintiff wanted a specialist obstetrician, she could ask. The plaintiff wanted a normal vaginal delivery. She did not want an episiotomy and that was noted on Exhibit 10. The plaintiff was later concerned that she would deliver a large baby which might not fit. With first babies, more than 90 per cent of mothers expressed that concern. Her response was to examine the plaintiff. She then said that though the baby was big, it felt as if it would fit through the pelvis. She said she normally confined that pelvic examination to the period from 37 weeks on and explained her method of measuring the suprapubic height to check its correspondence against her clinical impression. On 2 July 1998, they corresponded, which indicated a normal or average size. On 20 July, the internal examination showed the head to be engaged in the sitting position. On 27 July, the note on Exhibit 10 indicated that the defendant had advised the plaintiff that epidural relief may be reasonable during labour, the reason being that the defendant expected a big baby and a long labour:
"QUINLAN, MR: In relation to these discussions you had concerning a big baby and the importance of engagement in the pelvis, can you say whether or not there was any discussion of caesarean section at that time?---No, I would not have brought up caesarean section. The head is engaging. I would be feeling quite confident that we're still - we're looking at a normal delivery.
You said you wouldn't have brought it up. Do you remember whether Mrs Sheppard brought it up?---I have no note that Mrs Sheppard asked for a caesarean section.
Can you say what you would do if there had been a request for a caesarean section?---If Mrs Sheppard had requested a caesarean section on 3 August I would have told her to see a specialist. I would have not done an elective caesarean section. I don't do caesarean sections and I wouldn't have said to her, 'Yes, that's a good idea.' I would have said to her, 'See a specialist and discuss it with him.' Occasionally women do want an elective.
Well, can I ask you this, whether or not you recall - or whether or not there was any discussion in relation to a particular size baby at which Mrs Sheppard would want a caesarean section?‑‑‑If Mrs Sheppard had said that there was a particular size and then she would want to have a caesarean section, I would not continue to manage her. I could not be responsible for the size of the baby. If she said to me, 'If the baby is a certain size I want a caesarean section,' I would very quickly arrange for her to see a specialist who could do a caesarean section, because I would believe at this stage there had been a breakdown in communication. If she said to me, 'I want a caesarean section if the baby is a particular size,' that is a very threatening statement to me, because I am not responsible for the size of the baby. I could not do anything about the size of the baby.
Can you say whether or not that happened in relation to Mrs Sheppard?---That never happened."
On 3 August, the plaintiff was overdue and the defendant arranged a CTG tracing which was non‑reactive. On 4 August, the defendant saw the plaintiff after asking that she remain overnight on 3 August. She examined the plaintiff abdominally and vaginally:
"Did you say anything at that time in relation to the baby or the delivery?---Yes, I did. I said, 'You have got an abnormal CT tracing and a big baby and I think you are better off seeing a specialist rather than have me deliver your baby.'
Did you do anything after that?---Yes.
What did you do?---I went out of the room to arrange for a specialist to come and review her.
...
... And as I was at reception Dr Hugo came.
What did you do?---I said to Dr Hugo that, 'I have got a lady in the room with a big baby, an abnormal CT tracing and I think those shoulders are going to get stuck. Can you come and see her?'"
She and Dr Hugo returned to the labour ward:
"... Dr Hugo put his hand on her suprapubically - no - yes, suprapubically, and then got a pair of gloves on and did a vaginal examination.
What did he say after the vaginal examination?---'It's about 8 pounds 5 and it's just going to fall out. I had one the other week and it will just fall out. I would not induce her. I would repeat the trace and send her home.'
What effect did the advice that you had received from Dr Hugo have on your intentions in relation to the management of the rest of the pregnancy and the delivery?---I felt comfortable that his examination agreed with mine, that the baby was engaged. That was all I felt. ...
And in terms of Mrs Sheppard, what did she indicate, if anything, to you, about the outcome of that examination?---She was delighted, because I had wanted to induce her and Dr Hugo didn't want to induce her, and also he was happy for her to go home."
Dr Hugo advised a repeat CTG tracing. That was normal and the plaintiff went home. After seeing the plaintiff on 7 August, the defendant said she thought the plaintiff would have a vaginal delivery. She saw the plaintiff on 8 August at the hospital. The plaintiff had ruptured membranes but did not want to be induced. She wanted to go home but the defendant wanted her to be admitted and advised her to stay in the hospital and to be induced the following day.
"What did you say in relation to whether she should go home?‑‑‑'Mrs Sheppard, you have now got ruptured membranes. I would be worried about infection and if you elect to go home, that would be bad medicine and I would not continue to look after you. I would transfer you - I would arrange' - I would not use 'transfer' - 'I would arrange for you to see a specialist.'"
The plaintiff remained at the hospital. On arrival at the hospital the following morning, the defendant found the plaintiff distressed because a nursing sister had told her the baby would weigh about 11 pounds. The defendant had then said: "I don't think it's that big. I think it's bigger than what Dr Hugo said of 8‑1/2 pounds. It's probably 9‑1/2, nine to 9‑1/2." She then said something along the lines of, "Let's see how we go in labour, how it progresses." The plaintiff was induced and labour began.
As with other witnesses, I do not summarise the evidence as to the course of labour and delivery. Suffice it to say that I see no reason not to accept the defendant's evidence of those events.
Cross‑examined, the defendant accepted that she was reliant on her ante‑natal card and the other medical records and her usual practice at the time for her memory of these events which had occurred four years before trial but she clearly had some specific memory of her own. She agreed, for example, that the plaintiff had not struck her as a nervous, anxious mother: "She struck me as pretty - a very reasonable lady. It was a planned pregnancy. I noted she was adopted and she was a delightful patient."
She recalled the plaintiff's concern about the baby's size. She said that weight gain in "a normal pregnancy in a white Australian female would be 12 to 15 kilograms." Whilst she could not recall what words she said to the plaintiff, she said that was the normal advice she gave and that she would not have said to the plaintiff that it was 12 or 13 kilograms.
The matter had been raised "at least two or three times". However, she denied any conversation in which it was suggested that if the baby weighed over nine pounds, a caesarean section was to be at least discussed.
"... No, that did not come up. That did not come up, because I would have appreciated that I'm not responsible for the baby's weight and if she had brought up to have a caesar at 9 pounds ... I had no way of doing that for her. I would have to refer her to a specialist and the communication between the two of us is quite serious now. It's almost a threat. ...
Why is it a threat?---Because I'm being pushed into an area that I don't do, a caesarean section. So that if someone said to me, 'Will you do a caesarean section?' and that's fine, I'm feeling I'm being pushed. I'm a little bit conscious of that. I do a lot of obstetrics and I would be very comfortable referring them off. I have a very high referral rate. I do what I call straightforward obstetrics, and I like to pick the easy ones. So as soon as there is even a hint that, 'Come, Dr Swan, what if it is 9 pounds?'
No, look, let me put it to you that Miss Sheppard's evidence is that you had said at the beginning that you didn't perform caesareans?---Yes, I know she said that.
I think the issue is she was saying, 'If I'm going to have a baby that's 9 pounds or over than I want you to tell me and I will be referred to a specialist'?---No, I would have referred her to a specialist in that case. I was doing 130 deliveries a year. I was very fully booked. I would have been very happy for her to see a specialist, yes.
All right?---So, yes, that conversation didn't happen."
She did not recall the presence of the plaintiff's husband. Nor did she recall discussing caesarean deliveries in general:
"In Tammy Sheppard's case with a head that was engaged I would not as a routine bring up a caesarean section, no.
...
Some patients will ask, 'I want to have a caesarean section.' I'm not - I do not find shared care always the best for the patient and I would say to them, 'It is better that you get to know a specialist ... - and also I'm busy - that you should see a specialist. So there is the elective one.
Yes, apart from someone who says, 'I want a caesar,' in what circumstances would you feel it appropriate to refer a patient on?---If the baby was breech - we have excluded previous caesarean sections. If she had had a previous caesarean section. If the head was not engaged at 38 weeks I would seek a specialist opinion with the idea of caesarean section. If the baby is big and the head is not engaged I would refer her to a specialist. If there are signs that the baby is not growing I would refer her to a specialist. If she has complicating factors of heart disease, asthma. If she had twins. If the baby's heart rate was abnormal.
What about in relation to foetal size, if you suspect that you have a very large baby?---If I had a very large baby with an unengaged head I have referred patients like that to a specialist and assisted at the caesarean section without a trial of labour."
Later, she said that a large baby would not be "a daunting factor" for her provided the head was engaged.
She agreed that an average birth weight is about 7‑1/2 pounds and may have said she expected an average weight.
However, she did not agree that there is a connection between maternal weight gain and foetal size. Nor did she agree she had estimated the baby's expected birth weight at seven pounds to 7‑1/2 pounds.
She said she had intended to consult a specialist while the plaintiff was at the hospital on 4 August because the plaintiff was over term and the baby was large. She was concerned about delivery of the shoulders. The fact also was that the CTG trace was non‑reactive. She had told the plaintiff that she wanted her to see a specialist before going home and suggested Dr Blair. The plaintiff had asked for Dr Hugo who had previously performed an ultrasound. She had not mentioned her concerns, because she wanted the plaintiff to remain positive about a vaginal delivery. It was coincidental, however, that Dr Hugo had happened to be at the hospital. He had not limited his advice to repeating the trace and if it was non‑reactive, to have the plaintiff return home for induction the following week. He conducted an examination, estimated birth weight and expressed the opinion that the plaintiff would deliver the baby vaginally without difficulty.
By the end of the pregnancy, she said, she felt the baby would be a big one. Dr Hugo estimated its weight at eight pounds or 8‑1/2 pounds. She thought it bigger than that, although she was not sure she had expressed that to the plaintiff. She knew that difficulties in labour increased with baby size but did not agree that incontinence problems or pelvic floor damage did so. She knew ultrasounds were unreliable for weight and, although she said she suggested one at one stage before Dr Hugo was consulted, she had been dismissive of it. Dr Hugo, a specialist in ultrasound, had not recommended it for large babies. Although the baby was big, the head was going down, which was a positive sign for vaginal delivery even though there was a higher probability of birth difficulties.
The defendant agreed that the plaintiff had expressed concerns as to the size of the baby at the time of the defendant's arrival to induce birth early on 9 August. She said she indicated she believed the baby would be about nine pounds to 9‑1/2 pounds, bigger than Dr Hugo's estimate.
Dr P J Hugo
Dr P J Hugo, an obstetric and gynaecological ultrasonologist but, at the time, a specialist obstetrician and gynaecologist, remembered seeing the plaintiff with the defendant but made no notes and recalled little detail. His evidence, however, is suggestive that he did both an abdominal and vaginal examination, may have used an expression that the baby would "fall out" and would not use ultrasound to determine expected birth weight especially with large babies.
Plaintiff's medical evidence
The plaintiff tendered a book of medical documents, Exhibit 1, by consent. These comprise:
1.the defendant's antenatal record of the plaintiff's care;
2.an ultrasound report by Dr Hugo, 16 January 1998;
3.an ultrasound report by Dr Newnham, 3 March 1998;
4.the defendant's letter to St John of God Hospital, 2 July 1998;
5.the inpatient notes at St John of God Hospital, Murdoch for 4 August 1998;
6.the inpatient notes at St John of God Hospital, Murdoch for 6 August 1998 to 0620 hours, 9 August 1998;
7.the partogram from St John of God Hospital, Murdoch;
8.the inpatient notes at St John of God Hospital, Murdoch for 9 August 1998 from 1810 hours to discharge;
9.the obstetric epidural form;
10.the summary of labour and delivery;
11.the notification of case attending; and
12.the CTG tracing for plaintiff's labour and delivery on 9 August 1998.
Evidence was called from two midwives who were present at the birth, Ms S M Bradshaw and Ms P D McGready. They explained their record keeping process and their observations.
For reasons which I set out below, it is nonetheless not necessary, in my view, for me to recite here their evidence of the day's events. Of course, a large number of particulars of negligence relate to this period of time. Their accounts are, in any event, largely common ground, save that their account of the last minutes before and after delivery differ both as between themselves and with the defendant. It is not necessary for me to make findings as to which account is to be preferred. Given the stresses involved, the passage of time and the different vantage points, some differences are not unexpected. All, I have no doubt, were giving as accurate and truthful account as they could. It is clear that this was a long and distressing delivery. It is important to stress again that in the end (however the exact sequence of events occurred), notwithstanding shoulder dystocia and other issues including the use of a resuscitation trolley, the baby was delivered without damage. Of course, the claim in these proceedings relates to damage alleged by the mother, to which I turn in more detail later.
Thus there are differences between the accounts of the final delivery of the baby as between the plaintiff, the defendant and each of the two midwives, in my view, in the end, nothing really turns on that.
A number of experts gave written reports and oral evidence. The plaintiff called Professor E V Mackay. The defendant called Professor Roger Pepperell and Associate Professor Jan Dickinson. I say, at this point, that I clearly and strongly prefer the evidence of Professor Pepperell and Associate Professor Dickinson. They were extraordinarily impressive witnesses whose evidence was clear, direct and obviously informed by deep and current understanding of the areas involved, both at the theoretical or scientific level and at the level of modern clinical practice.
Professor E V Mackay
Professor Mackay is an obstetrician and gynaecologist with a distinguished history from his graduation in 1948. After retiring from his University position in 1991, he worked as a consultant and wrote in the field. Apart from other writing, he has, in the last 10 years, had a practice in medico‑legal report writing. He has not been active as a primary obstetrician since the early 1980's.
In September 2002, Professor Mackay responded in writing to the report of Associate Professor Dickinson. He maintained his view that, in some respects, there had been a failure to manage the labour appropriately. He stressed what he saw as a greater need to apprise the parents of the risk of shoulder dystocia and to have an informed decision made and what he saw as hyperstimulation through the use of oxytocin, again with lack of appropriate discussion and parental decision making:
"Question 9:
Given that the Plaintiff was carrying a large baby, were there any other clinical indicators that would indicate delivery by caesarean section?Paragraph 1. I do not believe that the plaintiff was accorded a true trial of labour as I understand the term. The statement that because a vaginal delivery was achieved contests (sic) to the capacity of her pelvis represents a major point of difference between us.
In normal circumstances, this can happen - albeit with the possibilities of morbidity to the mother's pelvic floor and the baby. When there is an unacceptable degree of uterine stimulation to the uterus, as in this case, no such conclusion can be drawn. One may be able to squeeze the head through via moulding, only to encounter the unpleasant complication of shoulder dystocia, where there is no opportunity for slow accommodation.
Similarly, no valid conclusions can be drawn as to the normality of the duration of the stages of labour when the uterus is being unnaturally (and unsafely) hyperstimulated.
I do not consider that the satisfactory state of the baby at birth contraindicates the above. A strong baby with good metabolic reserves can survive significant stress during labour.
Paragraph 2. Again, I believe that the influence of the oxytocin infusion has been underestimated.
Question 12:
In your opinion did Dr Swan, a general practitioner, manage the plaintiff's labour and delivery appropriately?I consider, on balance, that the degree of difficulty of the delivery could well have been predicted if there had not been an improper use of oxytocin stimulation. If safe techniques of labour management are in place, there is less need to be concerned regarding fetal size. I do not consider that this labour was managed 'well within the standard of care'. The delivery would not have been unexpectedly difficult, in my opinion, if the labour had been managed appropriately.
Question 13:
Given that the Plaintiff's episiotomy was sutured in three layers, would you expect the plaintiff to suffer with urine incontinence and associated micturition problems?Urinary incontinence is a complication of pregnancy and childbirth. The more severe it is and the more longstanding, the more likely it is that there was trauma to the pelvic floor (muscle and supports) and/or the pudendal nerve."
As with the evidence of Professor Pepperell, I prefer the evidence of Associate Professor Dickinson to that of Professor Mackay where they differ.
Mr Tim Jeffrey
Mr Jeffrey, a urogynaecologist, was called by the plaintiff who first saw him on 14 September 2001 on referral from her general practitioner. His reports are Exhibit 5A to Exhibit 5F.
On 19 December 2001, he reported:
"2.Mrs Sheppard attended complaining of incontinence of urine. This was principally stress incontinence with minor urgency symptoms. She had a sensation of incomplete emptying and couldn't stop the flow of urine and of water trapping in her vagina. She is unable to use tampons as they fall out. ... She claimed her symptoms developed following the birth of her first child, weighing 11lb 13oz. This was a complicated delivery, with some shoulder dystocia.
...
5.These symptoms are common after all forms of childbirth. Mrs Sheppard relates her symptoms to the delivery of her first child on the 9th August, 1998. It is not unusual for patients to develop stress incontinence of urine after a vaginal delivery, regardless of the size of the baby. Detrusor instability may arise de‑novo or as a result of Pudendal nerve trauma."
The plaintiff underwent surgery on 21 January 2002.
On 27 March 2002, Mr Jeffrey saw her for her first post‑operative visit. He reported that, pre‑operatively:
"Mrs Sheppard was counselled regarding the surgery and advised she should consider a minimally invasive vaginal sling procedure to control her stress incontinence of urine. She was also made aware that she may well have persistent detrusor instability type symptoms after the surgical procedure.
Mrs Sheppard was also advised to have a posterior vaginal repair at the time of the sling procedure in view of some posterior vaginal wall laxity.
At her post‑operative review Mrs Sheppard had had persistent urinary tract infections, which are not unusual following any continence surgical procedure. The vagina was healing nicely as a result of the vaginal repair. Bladder function was slowly returning to normal and Mrs Sheppard was given a further course of antibiotics."
On 19 June 2002, he reported:
"She has made an excellent recovery from her posterior vaginal repair and minimally invasive vaginal sling procedure.
Since her last visit, Mrs Sheppard has had no further urinary tract infections. Her residual urine has now diminished to 76ml. She complains of some irregular voiding patterns. She has had no incontinence and no urgency symptoms.
As far as her vaginal repair is concerned, she feels well supported, her bowel function is improving and vaginal function is satisfactory.
From a surgical point of view she has recovered well. If her voiding does not improve to normal in the next 3 months, the minimally invasive vaginal sling will need a central division, which is a simple short stay procedure in hospital, which will not affect the long term outcome of the surgery.
Mrs Sheppard is very happy with the end result of her surgery.
The urinary tract infections experienced by Mrs Sheppard after her initial surgery have now settled with no evidence to suggest these are going to be ongoing."
He reported again on 23 August 2002:
"(a)Pre‑operative urodynamic studies demonstrated a mixed picture of obvious stress incontinence of urine with minor detrusor instability. Mrs Sheppard had pre‑operative detrusor instability.
(b)Detrusor instability can arise de novo or in some cases as a result of pudendal nerve trauma. It is not possible to comment on the aetiology of Mrs Sheppard's detrusor instability. Since her surgery however, there has been very little evidence to suggest that the detrusor instability persists. Without pudendal nerve latency testing, it is not possible to comment on the contribution of the pudendal nerve trauma to the detrusor instability. In view of the changed symptoms since the minimally invasive vaginal sling procedure for her stress incontinence, I do not consider that pudendal nerve latency testing is indicated.
(c)As stated in the answer to question (b), since the surgery performed on the 24th January 2002, there has been no post‑operative evidence of detrusor instability symptoms. There is some evidence to suggest that support of the bladder neck and proximal urethra, as achieved by the minimally invasive vaginal sling procedure, may in fact help minor detrusor instability symptoms.
(d)The posterior vaginal wall weakness repaired at the time of the surgery on the 24th January was a direct result of a vaginal delivery. It is very rare to have posterior vaginal wall weakness in the absence of a previous vaginal delivery.
(e)I would certainly agree with Dr Dickinson, the larger the baby the greater the trauma to the maternal genital tract as a result of the delivery. Antenatal (pre‑labour) foetal size assessment is not accurate with larger babies. Ultrasound and clinical examination of a large baby will give a birth weight with a 10% to 15% error in size assessment. Caesarean section does not reduce the incidence of shoulder dystocia."
Finally, he reported on 5 October 2002:
"Dr Dickinson's report you have quoted, essentially states the obvious. Large babies cause trauma to both mother and baby. It is well accepted however that small babies can also cause trauma to both mother and baby.
...
I cannot say that Tammy Sheppard would not have experienced the same postnatal problems had the baby weighed 3000gms as opposed to over 4000gms.
The only comment I can make however, is had the baby been delivered by elective caesarean section, there being no specific indication, then it is most unlikely that Ms Sheppard would have experienced the same postnatal problems."
Giving oral evidence, Mr Jeffrey said that at her first consultation, the plaintiff provided him with a list of frequency and urgency which was more than average, but not excessive. It was vaginal delivery which damaged the posterior vaginal wall. He confirmed that an elective caesarean section, that is, one performed before the onset of delivery, would have avoided both the bladder and the posterior repair problems. He was asked:
"If we had a situation where a trial of labour had occurred and the decision was made for a caesarean section to be performed before the cervix had fully dilated, so a decision was made for a caesar because of lack of progress before full dilation, would you agree it's more likely than not that the problems would not have occurred?---Pregnancy itself and the labour process itself can cause problems with bladder neck support and there can be stress incontinence of urine developing postnatally even after patients have had no labour at all. The pregnancy itself can influence the function and support of the bladder neck.
...
My question was we accept that these things can happen without labour or with a short labour. Do you accept that it is more than a 50 per cent chance that if this woman had had a caesarean section before she had fully dilated, before the baby had descended below spines, do you accept ... that it is more likely that she would not have the problems she has than that she would? ...---Yes. I'm not prepared to comment on the bladder itself. She wouldn't have required the posterior vaginal repair, but I can't comment on the bladder. I have no record of what the bladder was like before the onset of labour and so I am not prepared to comment on that.
It's too difficult to speculate?---It's much too difficult.
Looking at the surgery that you performed, the sling, was Ms Sheppard an unusually young patient to be having that procedure in your experience?---She is a young patient but her parity, which mean the number of babies she has had, makes her more likely to need surgery compared with someone who hasn't had any children."
Cross‑examined, Mr Jeffrey confirmed that:
"... urinary incontinence ... is a very common phenomenon after ... all pregnancies. Ten per cent of the population has urinary incontinence.
The proportion is greater for women who have delivered vaginally compared with anyone else.
... It can't be a result of the caesarean section delivery but it can be a result of the pregnancy.
It's incredibly difficult to predict in advance which women are going to suffer incontinence following a pregnancy and childbirth and which will not?---Almost impossible.
The prospect of it happening isn't something which dictates or alters management of pregnancy and labour?---Not for first babies. It would for second or subsequent babies."
He agreed that the cause can be in the detrusor muscle, pelvic floor muscles, nerve damage, the sphincter muscles of the urethra or movement of the urethra as a result of the pregnancy itself. He had seen the plaintiff only almost a year after the second pregnancy:
"There would be no way, based on your examination, to determine whether the symptoms that you observed were related to the first pregnancy or the second pregnancy?---True.
Perhaps even more importantly, there would be no way to determine whether the particular physical cause of the symptoms resulted from the first pregnancy or the second pregnancy?---No way at all.
Even if Mrs Sheppard suffered some incontinence symptoms after the delivery of her first child, that tells you nothing about the physical cause that you observed after the second child, unless those tests were done?---No, exactly, other than the history."
He expressed the view that had the first baby "been delivered by caesarean section for some indication, then the second baby probably would have been delivered by caesarean section as well". There can be a caesarean section delivery for the first child and then a vaginal delivery for a second but, in that event, he would be in the same position in terms of not being able to comment.
He agreed that, medically, ultrasound is not a good indicator of foetal size or for elective caesarean section, although it may support a clinical impression.
Dr N De Felice
Dr N De Felice, a consultant psychiatrist, saw the plaintiff for medico‑legal assessment on 31 October 2001. His report is Exhibit 9. It is quite apparent from the history recounted under the heading "Our client's presenting complaints" that there were a number of exaggerations and unproven assumptions in the plaintiff's account to him which she presumably had by then adopted as factual beliefs and which were causing her considerable distress. He diagnosed the plaintiff thus:
"Fortunately for Ms Sheppard, I don't think she has developed a complicating ongoing psychiatric disorder. I note the initial symptoms that she described which I would take to be the level of distress and grief that one would expect given such circumstances. Fortunately, she hasn't developed Post Traumatic Stress Disorder and she did not describe sufficient symptoms to warrant a diagnosis of a complicating depressive or anxiety disorder. This is not to say that the emotional distress that she described was not significant, only that she hasn't had a complicating psychiatric illness.
As I have described above, she has had ongoing distress at various times subsequent to the delivery, including significant anxiety with her second pregnancy, but again I would conclude that these emotional responses fit within the bounds of a 'normal' emotional response to what was a traumatic experience for her.
Now, Ms Sheppard does not have any ongoing psychiatric disorder but does have psychological symptoms in the form of regrets and self recriminations, effects on her self‑image and secondary effects in terms of insecurity regarding her husband, as well as concerns about problems that may arise for her son into the future. I note also the urinary difficulties that Ms Sheppard describes as having occurred subsequent to her delivery, ...
Certainly, they provide limitations that have added to her distress. ...
I think Ms Sheppard should be considered to have an excellent prognosis from the point of view the emotional distress that I have described above. In fact, I think that one should conclude that she has displayed a great deal of resilience in the face of this traumatic experience. There is potential for further improvement in terms of her emotional symptoms. If she were to have an operation to improve the urinary difficulties she is having now, this would be of assistance to her emotional state. Furthermore, and probably more particularly, if there are no complications for her son, Shane, from the effects of the delivery, then this will provide a further relief for Ms Sheppard. Finally, with the passage of time and hopefully an ongoing good marital relationship, some of the issues regarding her self‑image and self‑esteem might improve. Describing the above, I am indicating that this further improvement might occur over the period of a number of years.
Alternatively, should her urinary difficulties not be able to be assisted, or if there are complications in this with further treatment, this could see further distress and a worsening of psychological symptoms. If her son were to develop 'mental problems', which I suspect are delays in his developmental milestones, and if these are attributable to the delivery, I think one could expect that this would be distressing for Ms Sheppard and likely to see a worsening of certain of her emotional symptoms. Finally, if there are interruptions or difficulties in her ongoing marital relationship, this might exacerbate any difficulties she might have with self‑esteem and self‑image, though of course these marital difficulties may or may not be independent of the psychological consequences subsequent upon the delivery. Again, you will understand that the time frame is likely to be extended over a number of years.
Having said this, all being equal and developments occur as Ms Sheppard currently predicts (or hopes), the more likely outcome is of further gradual abatement of her emotional symptoms, albeit over a number of years. ...
I don't consider that Ms Sheppard presently requires any medication or other forms of treatment, nor do I think there will be any particular need for such treatment into the foreseeable future. Of course this is dependent upon the developments I have described ... I think it is impossible to predict exactly what treatment requirements might be in the event of any untoward developments."
Of course, the comments about issues such as urinary problems and her son's development must be seen as arising from the history Dr De Felice took and against the background of the expert evidence in relation thereto.
Conclusions on liability
On certain matters of fact, findings of credibility need to be made.
Dr Swan was subjected to minute, detailed cross‑examination of the course of events during the plaintiff's time under her care. The defendant was both honest and attempted to be painstakingly accurate and fair to others. Where the parties differ, the contemporary records tend to support the defendant. A large number of allegations of negligence are made. She gave very thoughtful and careful attention to the questions and her answers and I was impressed by her honesty and thoroughness. She is a very experienced practitioner in the limited field of obstetrics in which she practices and, obviously, cares deeply for her patients and their babies.
For the commonsense and practical reasons given by the defendant and in light of the expert evidence concerning the predictability of birth weight, evidence of which the defendant was aware, I do not accept the plaintiff's evidence that she told the defendant that if the baby was to weigh nine pounds or more, she was to be transferred to other care for a caesarean section to be performed. Nor do I accept her evidence and submissions that, if offered a caesarean section during labour and was properly advised about that, she would have made an informed decision to do so. The plaintiff never herself raised the issue. Nor do I accept that, on medical grounds, the defendant had a duty to do so. Whilst Mr Johnson argues that the defendant has no memory and no written record of the issue on which the plaintiff is adamant, in my view, the lack of any clinical note of such a matter, in any event, suggests it did not occur.
It is to be noted that no complaint of breach of any such arrangement is made amongst the abundant particulars. Indeed, no pleading alleges such an arrangement, although counsel for the plaintiff addressed it in opening.
That is not to suggest that the plaintiff and her husband did not have concerns about delivery of a large baby. That is entirely natural. It is also entirely natural and, in my view, within the necessary limits of truthfulness and proper care, desirable that the defendant was reassuring to the plaintiff. The questions are whether there was any explicit agreement dealing with the matter and, if not, whether the defendant, in any event, failed in her duty of care in any respect in relation to the fact that the plaintiff delivered a large baby.
Nor do I accept the plaintiff's submissions in closing as to the defendant's consultation with Dr Hugo. I specifically accept the defendant's account of the matters upon which Dr Hugo was consulted. The important issue is not precisely how that consultation came to be organised. In my view, it is entirely reasonable to accept that the records support, or are consistent with, the defendant's account. Neither the plaintiff nor Dr Hugo was able to contradict the evidence. I draw no inference from the lack of any notes made or account rendered by Dr Hugo.
In any event, no suggestion was put to him about that. Rather, he agreed that the phrases remembered by the plaintiff as being ones he used were one he did on occasions use. They suggest that the consultation went beyond concern with a non‑reactive trace, as does the fact that he undoubtedly performed a vaginal and abdominal examination. Whilst a failure to consult a specialist in the circumstances would, it seems, on the expert evidence, have been a failure of care, the question would, in any event, then become whether it was causative of injury or loss. I refer to causation and quantification matters below.
The evidence of Professor Pepperell, which I totally accept, makes his views quite clear - that nothing untoward or negligent took place in the plaintiff's care after admission. Given that and the evidence of Associate Professor Dickinson, I do not intend to deal individually with each of the many allegations of negligence.
On the expert evidence which I accept, I do not think it was negligent of the defendant to fail to offer or advise use of ultrasound to estimate foetal weight, as argued for the plaintiff. The evidence strongly shows, in my view, that the plaintiff's emphasis on maternal weight gain and the use of ultrasound for this purpose to have been misplaced.
Mr Johnson, in closing, as in evidence, also spent considerable effort to criticise the defendant's care on the issue of syntocinon use and on the issue of maternal distress during labour. For the reasons given, I accept the evidence of Professor Pepperell and Associate Professor Dickinson as to those issues. The related issues of syntocinon and epidural use and maternal distress during labour call for experienced judgment. I am not satisfied there was any breach of duty.
Mr Johnson argues that, by 4.30 pm on the day of labour and thereafter, the issues should have been discussed with the plaintiff and a decision left to her, in light of that, to give informed consent as to whether to have a caesarean section. My view of the expert evidence is that it establishes that no such recommendation was called for. In my view, to suppose that informed decision making could, and indeed should, be properly left to the plaintiff in the absence of such a recommendation, is not established. Again, however, questions of causation and loss would arise even if my view on that was to be in error.
I am not satisfied that there was a breach of the duty of care.
Mr Johnson argued strongly in closing that while the events immediately following delivery of the head of the baby give rise to no allegation of negligence or particular of injury or loss, they go to issues of credit so that the various accounts are matters on which I should make findings of fact. I do not agree. As to the evidence of the two midwives, the issues do not arise - they are not parties and, as mentioned, no legal consequence flows from their evidence. In my view, the differences stem probably from misunderstandings and confusion and, given the passage of time, possibly memory issues also. It is not the case, in my view, that the differences of evidence reflect on either the truthfulness or the accuracy of the defendant (both of which, in any event, I accept) or, for that matter, the truthfulness of the plaintiff. The plaintiff could not, in any event, be expected to be accurate in recounting medical matters at such an emotion‑laden moment.
It is clear that the plaintiff felt exhausted, emotional and worried for some time after giving birth and that she felt let down by the defendant's failure to explain matters to her afterwards. She terminated the defendant's appointment as her practitioner and consulted Dr Gunnell.
The events the subject of this trial were clearly deeply traumatic, not only for the plaintiff and her husband, but for the defendant who, it seems, ceased obstetric practice shortly thereafter.
It is inevitable that during this traumatic and difficult process of birth, there will be matters for concern and numerous and varying issues to be considered over a significant period of time. It may be that discussion or consultation afterwards would have avoided a good deal of bitterness. It also may be that the defendant would be well served with a better "bedside manner". These things have, I think, contributed to misunderstandings on the plaintiff's part. In addition though, and much more importantly, the plaintiff seems to have misunderstood or misconstrued a number of matters on which she has little, if any, knowledge or understanding and has taken a "worst case" view of events, which she had, rather naively and optimistically expected to be less difficult than they were. The plaintiff has been taken by surprise and not reassured to the level her personality requires and has drawn unsustainable and over‑dramatic conclusions about her experiences.
Whilst no doubt truthful, the plaintiff, and perhaps her husband, have, to some extent, both misconstrued and reconstructed events, in my view.
No doubt, as a result of this trauma, a number of irrelevant issues started to intrude into the hearing as a consequence - three examples of matters which I refused to allow to be addressed were questions of the defendant's general attitude to epidural use at the hospital in question, a much earlier birth involving a different patient and shoulder dystocia in delivery, and whether the defendant rendered an account to the plaintiff in the present matter. None is capable of assisting in the objective examination of the issues before me. Each was capable of detracting therefrom through the introduction of inappropriate inferential reasoning.
Clearly, in some matters, the plaintiff's understandings of events were deficient as when she thought the episiotomy cut was repaired without taking account of the need to deliver the placenta. On other matters, such as the way in which the baby's shoulders were delivered, the events seem to have been confused and confusing in the minds of those present except the defendant. Certainly, everyone concerned including the defendant found them traumatic. The only important questions for me though are whether the plaintiff has established the defendant's negligence and, if so, whether she has also established that this was causative of injury or loss to the plaintiff.
The defendant's duty was to use the reasonable standards of care and skill to be expected of a general practitioner experienced in obstetrics in the given and dynamic situations with which she was faced. That she did. Hindsight is of little comfort or utility.
Provisional assessment of damages
The assessment of damages in a case such as the present, had liability been established, would not be easy.
There would be a number of complicating factors.
This is not a case like Chappel v Hart (1998) 195 CLR 232; 72 ALJR 1344 in which it can be said that whilst the plaintiff's care was not negligent, failure to warn of the risks meant that the degree of risk of damage was greater than it would have been had a more skilful and experienced practitioner performed the surgery. There is no such evidence here. Rather, it is said both that failure to recommend a caesarean section meant that a vaginal delivery was performed which the plaintiff would have avoided and that this caused various heads of damage which could have been avoided, and that negligent care itself caused damage.
The probability that the plaintiff would have suffered the same damage in any event is a matter which goes to assessment of damages. In the case of a number of heads of damage, that is relevant here. This is not a case in which, in assessing damages, the chance of the plaintiff suffering the same damage given a different course was merely speculative.
Individual heads of claim would need to be considered individually.
In each case, questions would arise as to whether the head of claim concerned is causally established to be the result of the defendant's negligence.
In the case of some areas of complaint, I am not so satisfied, either because the condition complained of is essentially the product of the pregnancy itself, as with stretch marks, or it is not proven that it is the result of the defendant's care, as with incontinence problems. (By consent, the plaintiff tendered a list of her treatments relating to incontinence problems, Exhibit 2. It is agreed that the cost totalled $8,436.60. Treatments on and after 14 September 2001 post‑date the birth of the plaintiff's second child. The defendant both denies that any incontinence is the result of the defendant's negligence (if any) and says that after the second child was born, the plaintiff has an onus to show the problem is not the result of that birth.) The plaintiff's case that she should have been recommended caesarean section prior to labour is supported by Professor Mackay and that she would then have avoided post‑natal pelvic floor and urinary incontinence problems is supported as a possibility in general terms by Mr Jeffrey. However, if caesarean section occurred after a trial of labour, his evidence is that the matter is then speculative.
In the case of others, the question also arises whether an alternative course, such as caesarean section, would have resulted in equal or alternative losses or injuries. Such an issue may be the episiotomy. Caesarean section is, of course, not problem free and the issue of the baby's welfare was, no doubt, paramount.
In other issues, such as that of bonding with the child or the episiotomy also, the question arises whether the claim is not simply an emotional exaggeration out of all proportion to reality.
There is no sufficient evidence that, in respect of these or other matters, any want of skill and care by the defendant, other than the fact of vaginal delivery, caused unnecessary injury or loss or exacerbated injury or loss. The plaintiff's evidence of unrelenting and unendurable pain levels is not substantiated as being exceptional by those medical staff with experience in the area. However much the subjective experience of pain to the plaintiff, the reality of vaginal childbirth and the plaintiff's wish for it must be kept in mind. It is noted that the plaintiff has since had a second vaginal delivery.
As counsel for the defendant argued, the plaintiff has required minimal attention other than for incontinence.
Any assessment of damages would be of very modest proportions.
It should also be said that a number of Professor Mackay's criticisms went to issues where, in fact, no claim of loss or injury to the plaintiff is made - shoulder dystocia, save as to any maternal distress flowing therefrom is one such, foetal tachycardia another. In fact, neither was causative of loss or injury to the child either.
In the circumstances I do not propose to assess damages provisionally in precise money terms.
0
3
1