Written by Sarah Walls
A Victorian court has allowed a medical negligence action against a retired obstetrician to go ahead 27 years after the baby was born. An ultrasound performed three weeks before the birth showed that the baby was in a breech position. The mother had a complicated birth requiring an emergency caesarean section, and the baby was subsequently found to be suffering cerebral palsy and quadriplegia. Would events after the baby’s birth have been different if a no-fault compensation scheme had existed in the 1990s? Please support our petition for no-fault compensation for Australian injured patients.
Why a litigation claim is being pursued after 27 years
The ultrasound performed on 4 July 1996 did not detect any abnormalities but showed that the baby was in a breech position. Its estimated foetal weight was 3888 g, i.e. above the 95th percentile. When the mother went into labour on 27 July 1996, the obstetrician was not present and the baby was delivered by emergency caesarean section by doctors at the hospital.
The mother was shocked to learn of the extent of her baby’s injuries when she saw a neonatologist in August 1997. This was the first time that the possibility of birth asphyxia and cerebral palsy was mentioned to her. The neonatologist suggested that she discuss perinatal management with her obstetrician but she did not do so. She believed something had gone wrong in the delivery. As the obstetrician had not delivered the baby, she did not believe he had done anything wrong. The obstetrician subsequently delivered her two younger children, one in 1998 and one in 2000, and saw her in 2010 for a gynaecological consultation.
In 1998 the mother consulted a solicitor. She was advised that she would need to pay $1000 each for two expert medical reports. She had had to give up work the previous year so she could take care of her son, and she and her husband had had to sell their carpentry business, leaving them in financial stress. She felt that paying this amount was “too much of a gamble” and decided against it. She had the impression from the solicitor that there was “no pressing urgency” to file the claim.
Why the court decided that the claim could go ahead
The Victorian Supreme Court case turned on whether or not it was too late for the mother and her son to pursue their claims. Under current legislation, their claims would have expired in July 2008. But it was not until a chance encounter in 2020 with a stranger who had a child with cerebral palsy that the mother again sought legal advice.
This time expert witness reports were obtained, and based on these reports, the mother was advised that a negligence claim lay against the obstetrician for failing to warn of the risks of vaginal delivery and failing to arrange an elective caesarean section around 15 July 1996. The son had a claim in relation to his alleged birth injuries and the mother had a claim for 10% permanent psychiatric impairment due to the circumstances of her son’s birth.
According to the judgement, the obstetrician argued that a fair trial was no longer possible, as he did not recall the patient and could no longer find her medical records. He argued that he would be unable to obtain an expert opinion, although he said he had acted in a manner widely accepted as competent professional practice, a statutory defence in a claim of medical negligence.
The court held that the claims were not “discoverable” until 2020 when legal advice and expert reports were obtained. It found that the mother had been preoccupied with the care of her son, but had acted promptly once the legal advice based on the expert reports had been provided. The court rejected the obstetrician’s claim that he would be unable to obtain an expert opinion. It recognised that there would be some prejudice given the time that had elapsed but considered that the ultrasound film and report and the hospital records were sufficient documentation to ensure a fair trial.
The mother had shouldered most of the burden of providing care and support for her severely disabled son from the time he was born in 1996 until the National Disability Insurance Scheme (NDIS) rolled out in their area in 2018. As litigation was the only way to obtain compensation, it is not surprising that when advised their claims could succeed, she and her son elected to pursue them. But the news that a retired obstetrician faced a medical negligence claim 27 years after a birth must have sent shivers down the spine of every obstetrician who read about it.
Would events have been different if a no-fault compensation scheme for injured patients had existed in the 1990s?
Yes, it is highly likely. A no-fault compensation scheme for personal injuries, including medical treatment injuries, had been recommended in 1974 but the Whitlam Labor government lost power before it could be implemented. No-fault compensation schemes generally do not involve cost to the injured person for filing a claim. Some schemes allow lawyers to file the claim, others do not. So, if a no-fault compensation scheme had been in existence in the 1990s, the mother would probably have filed her claim in 1997 or 1998. She would not have seen it as a financial gamble, and so would not have delayed.
Furthermore, it is clear from the judgement that the mother had felt anger and frustration at the way doctors responded to her questions. She told the court that “no one […] could explain to me what had happened and why it had happened”. Doctors are understandably anxious to avoid medical negligence claims, and so, when something goes wrong, they frequently do not provide information that might facilitate a claim. Injured patients often file claims not only to gain monetary compensation for their physical and financial losses but also to obtain accurate information and acknowledgement of their injury. Had there been a no-fault compensation scheme in the 1990s, doctors may have informed the mother that she was entitled to claim and assisted her in doing so. No-fault compensation schemes help preserve the trust in the relationship between healthcare providers and patients.
What would happen in such a case now if a no-fault compensation scheme for healthcare injuries is introduced?
In 2011 the Productivity Commission recommended the establishment of two schemes: a National Injury Insurance Scheme (NIIS), a federation of state-based schemes funded partly by insurance premiums, and a National Disability Insurance Scheme (NDIS), funded by federal taxation. Only the NDIS was set up. In 2017 the Council of Australian Governments (COAG) decided not to go ahead with the medical and general injury streams of the NIIS. So, for the second time, a no-fault compensation scheme for healthcare injuries was proposed but not implemented.
The Productivity Commission recommended that the NIIS initially be limited to cases of catastrophic injury. It also proposed that after five years of operation, the NIIS be reviewed and consideration given to extending it to a comprehensive scheme covering other significant injuries as well as economic loss and pain and suffering.
However, the Commission recommended that cases of cerebral palsy be handled by the NDIS, and not the NIIS, because of the difficulty in determining the role of medical care in the condition. The abnormal development of the brain or damage that can lead to cerebral palsy can happen before birth, during birth or in the early years of a child’s life.
This recommendation was adopted and in 2022 the NDIS provided care and support for over 17,000 participants with cerebral palsy. Assuming that the first stage of a medical NIIS was implemented, i.e. long-term care and support for patients with catastrophic medical treatment injuries, if a birth occurred under the circumstances described in the Victorian court case, the baby, once diagnosed, would have care and support provided by the NDIS, not the NIIS. Any claim for economic loss and general damages, including pain and suffering, would still need to be brought through a medical negligence claim.
Birth-related medical negligence claims are among the most complex and expensive of all healthcare injury claims. A comprehensive no-fault compensation scheme for such injuries is in the interests of babies, mothers and all the obstetricians and midwives who provide such vital assistance in bringing babies into the world.
We have called on the ALP to maintain its commitment to the NIIS, and in particular to implement its medical treatment injuries stream. In 2011 the Productivity Commission provided a blueprint for moving to a comprehensive no-fault injury insurance scheme.
Please continue to encourage everyone you know to sign and share our petition. We are very grateful for your continuing support.
Sarah and Vickie
Judgment in the Victorian court case:
http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSC/2023/331.html