Ghazi by her tutor Sfajalani v Western Sydney Local Health District trading as Auburn Hospital

HIS HONOUR: Ghina Ghazi was born on 22 May 2009. By her amended statement of claim Ghina alleges that the Auburn Hospital breached its duty of care to her in the events surrounding her antenatal care and subsequent birth in the circumstances briefly described in what follows.

Ghina’s mother regularly attended the antenatal clinic at the hospital. She first went there on 20 November 2008 at 13 weeks and 5 days’ gestation. On 21 May 2009, Ghina’s mother attended the clinic for a scheduled visit. She allegedly explained that she had noticed decreased foetal movement for approximately two days. She was reassured that everything was fine and was advised to take Panadol. Ghina’s father asked for an ultrasound to be performed, but he was told that it was not necessary. At the end of the consultation, Ghina’s mother was booked for prostaglandin induction of labour on 28 May 2009.

That same evening, Ghina’s father telephoned the hospital at 11pm reporting that Ghina’s mother had not felt the foetus move since 10am that day and had had a mucus show. They were advised that the show was as a result of the vaginal examination that day and that it was normal. Ghina’s mother was advised to have a glass of water and phone again if the baby did not move in three hours’ time, in which event they should attend at the hospital. Ghina’s mother followed that advice and felt the baby move slightly after about two hours. She then fell asleep.

Ghina’s mother woke at 8am and went to the toilet. She noticed a significant vaginal discharge. She took a sample of this and attended the hospital.

At 11.05am a CTG trace was commenced. The trace was non-reassuring and was terminated at 12.05pm when Ghina’s mother was transferred to the birthing unit and admitted at 12.15pm. CTG monitoring was continued. Ghina was shortly thereafter delivered by emergency Caesarean at 1.58pm. She weighed 2840g and was diagnosed with Grade 2 neonatal encephalopathy due to intra-uterine hypoxia.

The amended statement of claim alleged that the hospital was negligent in that it failed adequately to advise Ghina’s mother to attend for evaluation on 21 May 2009 or to carry out adequate investigations for her well-being on that day. Other cognate contentions are advanced. They include an allegation that the hospital failed to make it clear to Ghina’s mother that the absence of foetal movements was potentially serious and that she should attend the hospital immediately. An allegation of a failure to diagnose placental insufficiency is also made. No complaint is made with respect to Ghina’s care following her birth.

The parties have settled the proceedings in principle, subject to the necessary approval of the Court. The amount of the proposed settlement is said to be a compromise in light of what are perceived to be potential difficulties faced by Ghina with respect to the issue of the hospital’s liability. That difficulty is thought to arise in the following circumstances.

There was some initial confusion concerning when Ghina’s parents first attended the midwifery consultation on 21 May 2009. It was initially suggested, possibly as the result of language difficulties, and confusing hospital notes, that they had attended in the early hours of 22 May 2009 but had not been attended to until late the same morning. Closer examination reveals that this was incorrect.

Although issues such as the size of the foetus relative to age are potentially complicating factors in the case, the principal allegation turns upon whether or not the advice which was given by the midwife at 11pm on 21 May 2009 was correct. Ghina’s expert evidence suggests that it was not. Associate Professor Daniel Challis, who has been qualified by the hospital, suggests that the advice was reasonably normal practice at the time. There is in addition a neonatological issue concerning whether the hypoxic event that caused the damage took place only a short time before birth, in which case it would or might not have been related to the reduced foetal movement on 21 May 2009. Assessment of this timing issue has been further confounded by the fact that Ghina was therapeutically cooled after birth, which has the result that the precise timing of the hypoxic event may erroneously appear to have occurred as much as four to five days prior to delivery.

Professor Colditz is of the opinion that the hypoxic insult occurred in the period from some time on 21 May 2009 until sometime before delivery on 22 May 2009.

The proposed settlement sum of $4M is a significant compromise, having regard to counsel’s assessment of the full value of Ghina’s claim as being in the range up to approximately $11M including funds management. That compromise is based upon the concern that there is no clear evidence available to support the claim on the issue of causation. The hospital’s position, supported by respected expert medical opinion, is that nothing that was done, and nothing that was omitted, contributed in any way to the poor outcome. The success or otherwise of Ghina’s claim depends upon the acceptance of her own medical experts, and an acceptance of her parents’ version about complaints said to have been made on the morning of 21 May 2009, when no investigation was carried out in respect of the absence of foetal movement, as well as the inadequacy of the advice given at 11pm the same day.

Associate Professor Challis provided a report dated 23 April 2016 to the legal representatives of the hospital. That report dealt in part with the particulars of negligence pleaded by Ghina. With respect to the allegation concerning a failure to advise, or adequately to advise, her mother to attend for further evaluation on 21 May 2009, Professor Challis said this:

The hospital also qualified Associate Professor Nick Evans, an expert in neonatal medicine, for an opinion in this case. His report dated 14 November 2015 expresses the following conclusion:

On the issue of the importance and effect of neonatal cooling, Professor Colditz said this in his report dated 20 August 2018:

Professor Sailesh Kumar provided a report to Ghina’s lawyers dated 18 May 2016. He was of the view that the advice of the midwife given to Ghina’s father was “clearly inappropriate”. He was of the view that the parents should have been advised to attend the hospital immediately. He suggested that it is likely that the foetal heart rate trace would have been non-reassuring and that this would have prompted delivery. He considered that there was a missed opportunity on 21 May 2009 to assess foetal wellbeing. However, he considered that it was entirely possible that, given the significant lack of movements “since 10am the preceding day” (by which I take him to mean during the course of the same day since 10am), neurological injury had already occurred.

Dr Kumar was also asked for his opinion as to why Ghina suffered asphyxia and the probable causes which may have been avoided if she was delivered on 21 May 2009. Unfortunately, Dr Kumar answered the first part of the question but did not deal with whether or not the causes of the asphyxia could have been avoided by an earlier delivery.

Dr John Schmidt also provided a report to Ghina’s lawyers dated 13 April 2018. Part of that report dealt with the particulars of alleged negligence as follows:

Finally for present purposes, Registered Nurse Miriam Guttman provided a report dated 19 August 2015 in which she expressed the following conclusions:

I am not aware whether there have been conclaves of experts in relevant specialties or disciplines in this matter or whether joint reports have been prepared. Having regard to what I consider to be the burden of competing opinions, I would have expected this to have occurred by now and to be greatly assisted by such material if it were available, quite apart from its likely significance at the hearing.

I am aware that Ghina’s parents have expressed the not unreasonable and perfectly understandable view that they wish to have an end to the uncertainty of the present litigation. Although that is a consideration of obvious force, it cannot in my view be unduly influential in assessing the present application, far less determinative of it, in which the best interests of Ghina are paramount.

I accept that there are competing views in this case concerning both the issue of breach of duty and causation. There may well be others. However, I do not think that the proposed compromise accurately reflects the difficulties that are said to be facing Ghina on either issue. I accept that some discount to take account of the prospect that Ghina may not succeed is appropriate, but as presently advised that discount disproportionately favours the hospital when assessed in the light of the competing expert opinions. In so saying, I am not intending to express a concluded, or even a preliminary, view about the likely outcome of this litigation. Importantly, I am not presently satisfied that the proposed settlement accurately or adequately represents the potentially competing strengths of the parties and is not in those circumstances in Ghina’s best interests. Accordingly, I decline to approve it.

I note as well in passing that I am informed by Mr Cranitch SC who appears for Ghina that there is understood to be a current solicitor and client costs liability “not exceeding $500,000”. I should not wish to be taken as accepting that any fund settled upon trust for Ghina following a compromise or a verdict was automatically amenable or susceptible to payment of such costs or that any trustee of such monies would necessarily accede to a request that those costs be paid, in whole or in part, out of the settled fund. To the extent only that there were some potential for such costs ultimately to be paid out of Ghina’s entitlement, I note that that would have the effect of making the proposed settlement correspondingly less favourable to Ghina.

I note that the matter is listed for hearing commencing on 26 November 2018.