ACT Supreme Court awards almost $900,000 to the distraught parents of a stillborn infant: KS & XT v Calvary Health Care ACT & Dr Foote [2018] ACTSC 84.
The expectant mother (KS) was admitted to Calvary Bruce Private Hospital, the first defendant, under the care of obstetrician Dr Andrew Foote, the second defendant. Dr Foote allowed the baby to become one week overdue before he induced KS. Upon admission, KS was attached to a foetal heart rate monitor (CTG) which showed several periods of prolonged abnormality. The Hospital admitted that the midwife attending on KS failed to recognise and act on those abnormalities for approximately 40 minutes. Once notified, Dr Foote did attend KS and, having seen the CTG, ordered a Caesarean section. When delivered an hour later, tragically, KS’ daughter was stillborn.
ACT Supreme Court Justice Burns found both defendants liable, and apportioned damages according to their respective culpability.
The Hospital was liable for 30% of the plaintiffs’ damages due to its delay.
The obstetrician was found liable for 70% of the plaintiffs’ damages as he was ‘significantly more culpable for the damage sustained by the plaintiffs than the hospital’. Dr Foote’s negligence spanned both KS’ antenatal management and the birth complications on 13 January 2011. Dr Foote failed to order an urgent caesarean which should and would have been performed within 30 minutes. Burns J accepted expert evidence that had that occurred the baby would have survived.
In addition, Dr Foote’s antenatal care of KS fell short of the standard of a competent obstetrician in failing to warn of the increased risk of stillbirth. KS’ age, the baby’s conception by IVF and going over term increased the risks of stillbirth. In light of KS’ history of difficulties conceiving and carrying a pregnancy to term, His Honour accepted without question that she would have sought induction earlier than 13 January 2011, the likelihood being that the baby would have been born healthy.
His Honour noted that Dr Foote had both ‘the first, and best, opportunity to avoid damage’ by warning of the risks, and also the ‘last chance to avoid this tragedy’ had he ‘acted with appropriate haste to conduct’ an emergency Caesarean section.1
What you need to know
For treatment providers in the ACT, there is no legislative standard of care on risk warnings, so the courts still turn to Bolam v Friern Hospital Management Committee (1957) 1 WLR 582:
‘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.’
In determining what risks would have been material, the court will take into account all matters relevant to the patient’s treatment. In a private obstetrics setting, it is incumbent on the specialist to obtain a comprehensive medical and fertility history to determine what risks to disclose to the expectant parents.
From a claims perspective, general damages for pain and suffering, particularly psychiatric injuries such as post-traumatic stress disorder, are on the rise in the ACT.
Where appropriate, admissions of liability should be made early to avoid prolonged litigation. These proceedings were not heard until October 2017 – over 6 years after the events in question. The costs of all parties to the proceedings were undoubtedly considerable by the time judgment was handed down.
This article was written by Sarah McJannett, Partner.
1 KS and XT v Calvary Health Care ACT t/as Calvary Hospital and Dr Andrew Foote [2018] ACTSC 84 at [308].