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A Perth family has lost a catastrophic birth-injury lawsuit against a major maternity hospital despite a judge finding clinicians were negligent, after a court ruled their daughter’s severe brain damage was legally “inevitable.”
The girl, whom WAtoday has chosen not to name, was born in August 2020 at 38-weeks gestation due to issues picked up during a routine examination at King Edward Memorial Hospital in Subiaco.
An ultrasound had shown growth restriction, reduced amniotic fluid and abnormal cerebral blood flow that pointed to the unborn baby being in distress and doctors advised the parents she should be delivered early.
How the baby would be born was then discussed with hospital staff, and a dispute over whether the parents were offered an induced natural labour or an elective caesarean began.
The parents later told the Supreme Court of WA that they were told an elective caesarean was “not an option in a public hospital”.
However, the court preferred the evidence of the doctors, finding that an elective caesarean was available but the parents declined it by choice.
Court documents showed the mother held a strong preference for a vaginal birth so was later induced, but monitoring of the baby’s heart rate showed she was in distress and needed to be delivered urgently with an emergency caesarean.
Doctors stated that the father spent the next 20 to 30 minutes asking questions about the risks of the surgery.
The baby’s distressed state continued, with medical notes showing her heart rate was deteriorating and her delivery became a category-1 emergency.
Despite the extreme urgency, the father continued questioning the doctors for another five to 10 minutes, the documents claimed.
The mother then gave oral consent, but only after a physical examination confirmed her cervix was not sufficiently dilated and a vaginal birth was no longer possible.
As she was being wheeled into the operating theatre after signing the consent form, doctors told the court that the father kept the form, edited it and crossed out two deletions of standard clauses that included consent for clinical photographs and vaginal examinations by supervised medical students under anaesthesia.
Surgical staff were then under pressure to find the consent form without knowing the father still had it, with allegations that the surgeon declared he had to go ahead without the form because it was an emergency.
Doctors told the court that this delayed carrying out the caesarean, but the father disputed the evidence and said he handed it over the first time it was asked.
The delay in obtaining consent proved fatal to the family’s legal case.
The family argued that the hospital was negligent in failing to recognise the earlier need for a caesarean.
However, the judge ruled that because a doctor cannot legally perform surgery without consent, and because the parents’ pattern of questioning took approximately 30 minutes to resolve, recommending a caesarean earlier would not have resulted in an earlier delivery.
The court concluded that the mother would not have consented any earlier than she did, meaning the baby’s injuries were legally “inevitable” and not caused by the hospital’s prior negligence.
Despite this, the judge still ruled that the hospital was legally negligent because it breached its duty of care when a midwife paged the registrar to review a highly concerning heart trace.
The court found that the doctor did not review the CTG history, did not speak to the midwife, and did not ask why she had been paged.
Instead, she did no more than “glance” at the screen and left the room.
The judge ruled that this complete failure to undertake an interpretation of the CTG fell short of the precautions a reasonable hospital would have taken to mitigate the risk of oxygen deprivation.
However, the claim was dismissed because the judge ultimately found the baby’s hypoxic-ischaemic brain injury was unavoidable and not caused by the hospital’s actions.
The little girl, now five years- old, survived a prolonged resuscitation but was left with grade-three brain damage, cerebral palsy, functional blindness, and impaired hearing.
Her parents pursued legal action in order to secure financial compensation to help support their daughter, who has ongoing impairments likely to persist for the rest of her life.
The judge closed his remarks by acknowledging his findings would be “of little consolation” to a family left wondering how their daughter suffered profound injuries while in the hospital’s care.
A GoFundMe page has raised almost $7000 of a $55,000 target for the girl to have “breakthrough treatment” overseas to stimulate her brain and potentially offer improvements in her quality of life.
Her father wrote that she “continues to show strength, awareness and joy”, adding that “her resilience is beyond words”.
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