Nemes v South Eastern Sydney Local Health District

1. [1]

   HIS HONOUR: Bendeguz Nemes (“Benny”) was born at the Royal Hospital for Women at Randwick at 11.38 on 2 April 2016. These proceedings are concerned with the question of whether the disabilities from which Benny was later found to be suffering, including infantile seizures and Global Developmental Delay, are the result of an alleged negligent failure by the hospital to deliver him earlier or whether they are alternatively unrelated to the timeliness of his delivery, which description must be taken to include the hospital’s management of his antenatal care.

2. [2]

   By amended statement of claim filed on 10 July 2020, it is alleged against the hospital, for which the defendant is responsible, that it was negligent by failing to:

3. [3]

   An additional issue was identified in a further amended statement of claim filed after the close of evidence. That issue was framed as a failure to:

4. [4]

   These allegations are denied. There is no separate claim made against the midwives.

5. [5]

   On 12 April 2024 the Court ordered the separate determination of the following questions:

   1. (1)

      Did the defendant breach its duty of care by not proceeding to earlier delivery?

   2. (2)

      Was any purported delay in (1) causative of the plaintiff’s disability?

   3. (3)

      Did the defendant breach its duty of care by not prescribing prophylactic antibiotics?

   4. (4)

      Was any purported failure to prescribe antibiotics in (3) causative of the plaintiff’s subsequent disability?

   5. (5)

      Did the defendant breach its duty of care in the manner in which it augmented the mother’s labour with Syntocinon?

   6. (6)

      Was the purported manner of administration of Syntocinon in (5) causative of the plaintiff’s subsequent disability?

6. [6]

   Having regard to the further amended statement of claim, I will treat the issue of the alleged failure to administer a foetal scalp test during labour as an additional question for determination. Despite the specificity of the separate questions, each falls to be considered under the broadly contested issue of whether or not Benny’s problems were avoidable, in the sense that they were caused by the defendant’s failure to deliver him sooner, or were never preventable in the sense that they were congenital and unavoidable. In either case, the defendant relies upon s 5O of the Civil Liability Act 2002 as a complete answer to the claim.

7. [7]

   In my opinion, each of these questions must be answered “No”. My reasons for coming to that conclusion are set out at length in what follows. However, separate questions (3) and (4) can be dealt with quickly. Erika Nemes did not at any stage suffer from an infection of the type to which antibiotics would be expected to respond. On the question of whether it was reasonable not to administer prophylactic antibiotics to Ms Nemes, only Dr Schmidt considered that they should have been administered. None of the other obstetric experts agreed with that opinion. These experts all agreed that, on the balance of probabilities, Ms Nemes did not develop chorioamnionitis or any other infective process. Moreover, these experts also all agreed that the absence of prophylactic antibiotics had no impact on foetal outcome.

8. [8]

   Despite the order for the determination of the separate questions, the various joint reports and other expert opinions deal with matters going beyond these separate issues that I am required to determine. For example, the obstetric experts were asked a question concerning disposal of the placenta. Joint Question 6 asked the obstetricians to comment on whether it was reasonable not to retain the placenta following birth. The experts agreed that it would have been preferable for the placenta to be retained. However, there is no evidence before me in the proceedings that suggests any such failure was the cause of any injury or disability from which Benny has been found to suffer. The reasonableness or otherwise of the failure to retain and examine the placenta in this case is unrelated to Benny’s claims.

Background

1. [9]

   In the nature of things, the parties have provided me with their respective introductions to this case. For reasons that will become apparent, each party’s take on how to explain their respective cases is understandably replete with emphasis and references that favour their contentions. An understanding and comparison of these differences helps to inform a resolution of the matters in dispute.

Plaintiff’s introduction

1. [10]

   Ms Nemes is Benny’s mother. She was 37 years of age and in her 5th pregnancy when she presented for antenatal care. Ms Nemes was born in Hungary in 1978. She married George (Zsolt) Nemes in 2006 and moved to Australia in 2009. She became an Australian Citizen in June 2020. George Nemes was born in 1973 in Hungary. He owns a building construction company and carries out residential and commercial building work in Sydney. Benny is their only child.

2. [11]

   Ms Nemes had a termination of pregnancy at age 19, followed by three miscarriages, at 7 weeks in 2006, 6 weeks in 2010 and 6 weeks in 2014. She initially consulted Dr Bitsis whom she had seen following her last miscarriage and was allocated to the Midwifery Group Practice model at Royal Hospital for Women for management of her pregnancy with Benny.

3. [12]

   Scanning revealed normal foetal growth but also uterine fibroids. She was also treated for thyroid issues. Ms Nemes presented on 29 March 2016 to the midwives’ clinic as she was in pain and had been feeling unwell. Bloods were ordered and CTG monitoring commenced. Dr Bitsis was contacted. Following a reassuring CTG and normal bloods, she was discharged noting that she was to be assessed antenatally on 31 March 2016. According to the antenatal attendance record, Ms Nemes presented to the delivery suite on 31 March 2016 “following possible bradycardia in clinic”. The entry suggests there were notes prepared for this visit, but none has been located within defendant’s Clinical Records. Ms Nemes was discharged.

4. [13]

   After a spontaneous rupture of membranes at 01.40 on 1 April 2016 and the commencement of contractions at 04.00, Ms Nemes presented to the hospital. She says she saw a midwife named Tammy who suggested she did not need to be admitted but that she could go home until her contractions became more painful and closer together. Ms Nemes was then seen by three obstetricians (Lee, Kernan and McIntosh) who noted the bradycardia the previous day and also said “CTG this a.m. suspicious – decreased variability”. As a result, Ms Nemes was admitted, nil by mouth at present, and was to have continued foetal CTG monitoring. During the remainder of labour, the defendant assumed care of Ms Nemes, including monitoring the health of both her and the foetus. Benny was ultimately born with the assistance of forceps at 11.38 on 2 April 2016 in a poor state.

5. [14]

   The plaintiffs allege that the defendant was negligent in failing to deliver Benny earlier and that if it had done so he would, on the balance of probabilities, have avoided his injuries, including infantile seizures and Global Developmental Delay.

Defendant’s introduction

1. [15]

   When Benny was five months old, he was admitted to the Sydney Children’s Hospital on 27 September 2016 under Dr Andrews, a paediatric neurologist, with a six day history of seizures. Following EEGs and MRI imaging, Dr Andrews suspected a left sided brain malformation as the cause of his seizure activity. His seizures evolved into infantile spasms. Benny developed an intractable seizure disorder and Global Developmental Delay. Good seizure control was eventually obtained with Vigabatrin therapy.

2. [16]

   Between 2018 and 2020, Benny resided in Queensland and Hungary. He returned to Dr Andrews’ care in April 2020. Dr Andrews documented a history of left posterior cortical malformation on MRI on 18 April 2017 and MRI on 28 September 2017, as well as a recurrence of focal seizures with altered awareness and subtle clinical features to suggest left hemisphere onset from June 2019. Dr Andrews diagnosed ongoing focal seizures. He strongly suspected a left cerebral malformation in the left posterior quadrant of the brain, with concordant semiology of the initial spasms and current partial seizures. Dr Andrews engaged Dr Lawson, a neurologist and Dr Erica Jacobsen, a neurosurgeon, for input. Dr Lawson reported a clear left-sided extensive parieto-occipital cortical dysplasia, a condition where the top layer of the brain does not form properly. The only path to being seizure free was epilepsy surgery in order to remove the abnormal cells.

3. [17]

   It is the defendant’s case that Benny was born with a congenital-structural abnormality in the left hemisphere which manifested in a seizure disorder at five months of age with subsequent Global Developmental Delay. The defendants maintain that this dysplasia is an in-utero developmental condition which entirely explains Benny’s condition, and that Benny’s seizure activity is not the result of a perinatal hypoxic brain injury.

4. [18]

   As noted earlier, Benny was born at 11.38 hours on 2 April 2016. The Plaintiffs allege that had he been delivered at 9.30 hours, he would have avoided brain injury and his global development disorder.

5. [19]

   The defendant’s first response to the allegations is to maintain that it acted at all times in accordance with competent professional practice as contemplated by s 5O of the Civil Liability Act. In short, the defendant contends that in providing the professional services impugned in these proceedings, it acted in a manner that, at the time the services were provided, was widely accepted in Australia by peer professional opinion as competent professional practice. If that is established, the defendant incurs no liability in negligence, and it is unnecessary for the Court to undertake any analysis pursuant to ss 5B and 5C of the Act.

6. [20]

   Nevertheless, but in addition, the defendant submits that the plaintiffs’ case fails on both breach of duty and causation.

7. [21]

   With respect to breach, Ms Nemes’ labour was managed to a standard consistent with peer professional care in 2016. Augmenting her slow labour with Syntocinon was appropriate: there is no suggestion of uterine hyperstimulation. As Ms Nemes was Group B Streptococcus negative and afebrile, prophylactic antibiotics were not indicated. There is no suggestion that she developed an infective process. The defendant maintains that the CTG trace was adequately monitored and that prior to the second stage of labour there was no clinical indication to expedite Benny’s delivery. When the trace became non-reassuring, Ms Nemes’ care was appropriately escalated with a prompt forceps delivery performed in a competent manner. The decision not to take a foetal blood scalp sample was reasonable. Professor Chapman and Associate Professor Keogh, both obstetricians, are supportive of the care and management provided to Ms Nemes.

8. [22]

   With respect to causation, whilst Benny was born in poor condition, it was promptly managed. He improved quickly. There is no evidence of postnatal encephalopathy. Postnatal encephalopathy is not a subtle diagnosis. Professor Nick Evans, a neonatologist and Associate Professor John Keogh, an obstetrician well published in matters of newborn encephalopathy, make plain that, absent newborn encephalopathy, there is no possibility intrapartum hypoxia resulted in Benny’s epilepsy or Global Developmental Delay. Professor Monique Ryan, a paediatric neurologist, also agreed there were no symptoms or signs suggestive of hypoxic brain injury. Consistently with the treater, Dr Andrews, Dr Ryan considered that cortical dysplasia is the cause of Benny’s epilepsy syndrome and cognitive deficits. This cortical malformation occurred during in utero development.

9. [23]

   The defendant maintains that any perceived abnormality in Benny’s history is both legally and factually unconnected to the cause of his condition. In short, whereas Professor O’Connor and Dr Schmidt, both obstetricians, attempt to elevate a single feature of the CTG trace from time to time to advance an argument in favour of urgent intervention or delivery, their approach ignores the limited predictive power of CTGs. The weight of the evidence is to the effect that the CTG trace was largely reassuring and that the clinical judgments made by the obstetric team caring for Ms Nemes from time to time were competent, considered and appropriate.

10. [24]

    Moreover, whereas Dr Harbord, a paediatric neurologist, would elevate “poor feeding” in the neonatal period to evidence of encephalopathy, this ignores the fact that neonatal encephalopathy is neither a subtle diagnosis nor established solely by the feeding pattern of a newborn. The weight of the evidence is to the effect that Benny was well, had an active suck function, fed from a bottle and gained weight in the neonatal period. Any attachment issues are adequately explained by Ms Nemes’ large breasts and inverted nipples.

11. [25]

    Finally, whereas Dr Keenan, a paediatric neuroradiologist, would elevate microbleeds and gliosis seen on Benny’s MRI imaging to evidence of a possible perinatal insult, this ignores the fact that none of Benny’s images contains features compatible with either a mild, moderate, severe or profound hypoxic ischaemic insult. The weight of the evidence is to the effect that microbleeds are often found coincidentally without significance. Likewise, the cause of any gliosis is speculative. It is entirely plausible (if not more likely) that any gliosis seen in later scans is the product of Benny’s well known seizure activity on and from five months of age.

12. [26]

    In summary, the defendant contended that it has not been established that Benny suffered any perinatal brain injury which could have materially contributed to his disabilities, namely, irretractable seizures and Global Developmental Delay consequent on known cortical malformation.

Civil Liability Act 2002 (NSW): s 5O

1. [27]

   The question posed by s 5O is whether the professional acted in a “manner” that at the time the service was provided was widely accepted in Australia by peer professional opinion as competent professional practice. This requires identifying the manner in which the professional acted and asking whether those actions were at the time widely accepted as competent professional practice. The “manner” refers to what the professional did and the issue is whether what the professional did is what a wide body of that professional's peers would have done in that circumstance: Dean v Pope (2022) 110 NSWLR 398; [2022] NSWCA 260 at [236] per Ward P; at [314] per Brereton JA; at [266] per White JA.

2. [28]

   The evidence of Professor Chapman and Dr Keogh, corroborated further by Dr Stamatopoulos and Dr McCormack, bears out that in its management of Benny’s delivery, the hospital staff acted at all times in a manner that was widely accepted in Australia by peer professional opinion in 2016 (and today) as competent professional practice. Closely read, neither Dr Schmidt nor Professor O'Connor advances a proposition to the effect that the management of the delivery here fell short of what was widely accepted by obstetric peers in 2016 as competent professional practice. In short:

3. [29]

   The “defence” based on s 5O is made out. The defendant submitted that I should find that it does not incur a liability in negligence.

4. [30]

   In Makaroff v Nepean Blue Mountains Local Health District [2021] NSWCA 107 Simpson AJA made the following observations as to the applicability of s 5O to a Local Health District (at 237):

5. [31]

   The plaintiffs submitted that, as a matter of statutory construction, s 5O does not apply in these proceedings as the defendant was not practising a profession.

6. [32]

   In any event, the negligence alleged against the hospital is framed in a general sense as a failure to deliver Benny at an earlier time. These allegations encompass the totality of the obstetric care, including antenatal management, management during labour and the decisions of the accoucheur. Undoubtedly the care provided to the mother and her baby during this period came from doctors and midwives who may have been practising a profession. However, they do not incur a liability in negligence in their professional capacity as they are covered by their employer pursuant to the principles of vicarious liability.

7. [33]

   The defendant's submissions highlight the problems that the hospital has in raising a s 5O “defence”. The only evidence that was led which identified the manner in which the professional acted was obstetric evidence. This, it is suggested "bears out that in its management of Bendeguz' delivery, the hospital staff acted in a manner that was widely accepted in Australia by peer professional opinion in 2016 (and today) as competent professional practice". [emphasis added]

8. [34]

   In short, the plaintiffs submitted that obstetric evidence cannot bear upon the efforts of the midwifery team who oversaw Ms Nemes’ observations and would bring in the doctors when they thought it was necessary. It was conceded by Dr Innes that the midwives were the experts in interpreting a CTG, yet the defendant called none of the midwives in charge of the care of the mother and baby.

9. [35]

   In these circumstances, the plaintiffs submitted that the defendant is unable to establish a defence under s 5O and the matter should be determined according to the principles of negligence.

Consideration

1. [36]

   Paragraph 29 of the defence dated 25 March 2020 is in the following terms:

2. [37]

   By reason of the view I have formed concerning the separate questions, and the way that my answers dispose of the proceedings, the issue of whether or not the hospital is a professional and as such entitled to raise the s 5O response, and whether if it is, it has established that it operated in accordance with widely accepted practice, achieve less significance than might otherwise have been the case. Moreover, there was no evidence from either party specifically tailored to the question of whether what the hospital did at the time of Benny’s birth accorded with such a widely accepted practice. Rather, the experts directed attention to the different issue of whether what was done in specific ways concerning foetal scalp monitoring, the administration of Syntocinon, retention of the placenta and the administration of prophylactic antibiotics was appropriate. Opinions about these and other specific activities performed in the course of the antenatal care and ultimate delivery were always not unanimous.

3. [38]

   However, if the issue is limited to the more general question of whether the hospital acted in accordance with widely accepted peer professional practice in delivering Benny in the manner and at the time that it did, I consider that the hospital acted in accordance with such a practice. It must go without saying that the course of the birth of every infant is potentially different from any other. The decisions about whether to deliver vaginally or to intervene surgically before that occurs are inevitably informed by changing circumstances in a dynamic situation. There is not always or necessarily only one course that must be followed. The exercise of professional judgment by equally qualified professionals may legitimately lead to different approaches.

4. [39]

   Section 5O does not require the establishment of a universally accepted practice. Nor does the expression of a different opinion negate the defendant’s ability to rely upon the provision. Section 5O understandably emphasises the importance of a widely accepted practice, acknowledging the possibility that more than one solution to the same problem may qualify. In the present case, I am satisfied on the evidence that the defendant’s approach to Benny’s delivery accorded with what was widely accepted in Australia by peer professional opinion as competent professional practice at the time.

5. [40]

   This is an obstetric issue.

6. [41]

   The obstetric experts produced a report following a joint session on 18 January 2023. The several matters to which their expert attention was directed included whether Benny’s delivery was negligently delayed. The experts present were Dr John Schmidt, Professor Mike O’Connor, Professor John Keogh and Professor Michael Chapman. The Joint Report deals with a series of sub-issues, some of which are referable to one or more of the other questions, such as prophylactic antibiotics and placenta disposal. However, with respect to the present issue, the experts’ opinions may be gleaned from their answers to Joint Question 1, dealing with interpretation of the CTG trace. The obvious significance and relevance of this trace emerges from the uncontroversial fact that all experts express opinions upon the basis of records assembled from or at the time of Ms Nemes’ labour and not from any observations that they were able to make themselves at the time.

7. [42]

   Joint Question 1(a) is as follows:

8. [43]

   Professor Chapman considered that the trace “was never pathological” although it was “occasionally non-reassuring”. He thought it was “consistent with the majority of CTGs we see during labour”. Dr Schmidt, in contrast, was of the view that the tracing at 01:50 on 2 April 2016 “showed features with significant foetal compromise which required immediate attention”. It was his view that “urgent action” was required at 01:40 hours.

9. [44]

   Professor Keogh provided a more expansive answer, parts of which it is helpful to record at length:

10. [45]

    Professor O’Connor did not respond directly to this question in terms. However, his appended table at page 367 of the Court Book suggests that from 1:40-4:40 on 2 April 2016, the decelerations were either pathological or non-reassuring. His table also noted periods of non-reassuring variability from 21:00-21:50 on 1 April 2016, and from 01:50-2:30 and 09:40-10:10 on 2 April 2016. His table also indicated pathological variability on 2 April 2016 from 04:00-05:20. Professors Chapman and Keogh expressly disagreed with Professor O’Connor’s table, consistently with the views earlier recorded. Moreover, Professor Chapman said he “would totally concur with Dr Keogh’s comments re Prof O’Connor’s interpretation of the trace”.

11. [46]

    Joint Question 1(b) is as follows:

12. [47]

    All experts agreed that the answer to this question was “No”. However, the following answer by Dr Schmidt should also be noted. He said this:

13. [48]

    Professor Chapman immediately responded, saying “Dr Schmidt’s views are not consistent with the majority of peers or most hospital protocols”. Dr Keogh also observed that “we have all four agreed that there were no features of the trace that required earlier augmentation.”

14. [49]

    Joint Question 1(c) is as follows:

15. [50]

    It is convenient to record what each doctor said in response to this question as follows:

16. [51]

    Joint Question 1(d) is as follows:

17. [52]

    Professor O’Connor said it did. Dr Schmidt agreed, indicating his opinion that foetal sampling was necessary shortly after deceleration at 01:40. He said this:

18. [53]

    Professor Keogh disagreed. He reasoned as follows:

19. [54]

    Professor Chapman was of the following view:

20. [55]

    Joint Question 1(e) is as follows:

21. [56]

    The unstated but accepted context in which this issue achieves relevance is that when labour contractions come too close together or last too long in the earlier stages of labour, the supply of blood and oxygen to the foetus will or may diminish, and foetal distress can occur when the unborn baby becomes oxygen-deprived. This can cause harm to the foetus, including hypoxia, ischaemia and acidosis.

22. [57]

    Professor O’Connor answered yes to this question. None of the other experts shared his view.

23. [58]

    Professor Chapman said no. He thought that the CTG trace never met any definition of hyperstimulation. Professor Keogh was of the same view. He said that “There is absolutely no evidence of hyperstimulation in this trace, at all. At all”. Dr Schmidt indicated that he also could not see hyperstimulation.

24. [59]

    Joint Question 4(a) asked of the obstetricians was also concerned with the timeliness of Benny’s delivery and is as follows:

25. [60]

    With the exception of Dr Schmidt, who did not in terms offer an answer to the question, all experts agreed that there was no indication for more urgent intervention. Professor Keogh’s answer was the most detailed, as follows:

26. [61]

    Joint Question 4(b) is as follows:

27. [62]

    The experts were unanimous in answering this question yes.

Consideration: Separate Question 1

1. [63]

   The defendant did not breach its duty by failing to deliver Benny at an earlier stage.

2. [64]

   In my opinion, the overwhelming tone of the expert obstetric opinion is that Ms Nemes’ labour with Benny proceeded normally. Normally does not mean without incident or in the complete absence of fluctuations in readings or other indications of foetal wellbeing and progress over time. The experts all agree that there were occasions where Benny’s status was effectively suboptimal. However, these occasions were passing or transitory and resolved. None was of a kind that mandated immediate or earlier delivery.

3. [65]

   It is important in this context that I indicate that the question of what the objective and observable data suggest or say about Benny’s condition in the period between his mother’s presentation to the hospital and his delivery are definitively matters for expert opinion. Even though the evidence in this case included, for example, the tender of CTG traces, and even though the parties made submissions about what the traces revealed and when, it is trite to observe that I must be guided by, in this instance, obstetric or similar expert opinion in order to be able to form a view and make a finding on the balance of probabilities about it. When there are competing opinions, that task necessarily includes an evaluation of the witnesses whose expertise is marshalled to assist me.

4. [66]

   In this case, although I have referred almost exclusively so far to the written responses provided by the experts in their joint report, I also had the opportunity to see and hear each practitioner give evidence in joint session at the hearing. I consider that the evidence given by Dr Keogh was particularly impressive. He gave me the distinct impression that he was giving evidence that was based upon an impassioned but wholly disinterested view of the facts. Even though he was advocating for a particular point of view, he was not at any stage in my opinion attempting to endorse a particular outcome in order to support the party that retained him or doing so in the face of evidence to the contrary. I found his reasoning process to be balanced and logical and ultimately entirely persuasive.

5. [67]

   Dr Keogh’s view was that there were no indications, in the form of abnormalities or suspicious traces or otherwise, that mandated or even warranted a hastened delivery. Professor Chapman shared that view.

6. [68]

   Professor O’Connor and Dr Schmidt were of a different opinion. I respect their views. However, without meaning or appearing to be unduly critical of either expert, I did not gain the impression that Professor O’Connor or Dr Schmidt was able to say more than it would have been preferable if Benny had been delivered earlier, rather than that he should have been.

7. [69]

   For example, Professor O’Connor referred to the fact that there were two episodes of prolonged deceleration which he thought “would certainly be an indication to get the baby out…unless there was reassuring [inaudible] of the foetus”. For better or worse, I am unable to translate that opinion into one that suggests it was critical that Benny should have been delivered sooner. Put another way, an earlier delivery may have been possible without causing harm to either Benny or his mother. That is a different matter entirely from saying that it was negligent obstetric practice at the time not to do so.

8. [70]

   This question should be answered “No”.

9. [71]

   This issue was examined by the obstetricians, the paediatric neurologists and the neuroradiologists in their respective joint reports.

10. [72]

    The obstetric experts’ answer is to be found in their recorded responses to their Joint Question 5 which is as follows:

11. [73]

    This area of inquiry is a very significant aspect of the present proceedings. For that reason, although experts in other areas of specialty deal with it, it is important and instructive that the opinions of the obstetricians who felt able to proffer opinions on the topic are recorded in detail.

12. [74]

    Professor Chapman conceded that it was not his area of expertise beyond what he experiences in the labour ward. However, he was of the opinion that what happened with this baby was not consistent with HIE: Benny was depressed at birth but recovered very quickly and subsequently went to his mother, which is not consistent with HIE.

13. [75]

    Professor Keogh answered as follows:

14. [76]

    Dr Schmidt declined to comment as it was not his field of expertise. Professor O’Connor did not think Benny had HIE.

15. [77]

    It is also in my view very instructive to note the evidence of Professor Keogh given in the joint obstetric evidence session before me on 4 September 2024:

16. [78]

    The paediatric neurologists, Dr Michael Harbord and Professor Monique Ryan, produced a joint report dated 20 December 2022. They were asked a series of questions directed to the elucidation of their respective opinions on Separate Question 2. These are considered in turn.

17. [79]

    Question 1 asked the experts to comment upon whether, on the balance of probabilities, Benny suffered from intrapartum hypoxia and ischaemia. The experts disagreed on this issue.

18. [80]

    Dr Harbord was of the opinion that Benny suffered from intrapartum hypoxia and ischaemia. That was because there were foetal heartrate abnormalities during the labour and he required active resuscitation after delivery. In particular, regular spontaneous respirations did not occur until after 5 minutes of age. Moreover, Dr Harbord noted that there was severe acidosis on the arterial cord gas with a pH of only 6.99, which is accepted as being severe for the purposes of establishing the presence of birth asphyxia. Dr Harbord also considered that there were signs of HIE with poor feeding.

19. [81]

    Professor Ryan accepted that there was intrapartum hypoxia, as demonstrated by the changes in Benny’s heart rate and low pH present at birth on the cord blood, plus the need for resuscitation. However, Professor Ryan considered that the hypoxia was transient and did not lead to hypoxic ischaemic brain injury: Benny’s pH normalised quickly, the resuscitation time was relatively minimal, and his presentation returned to normal thereafter. Professor Ryan was of the opinion that blood tests and other investigations were probably not performed because Benny was felt to present normally: such investigations would usually be undertaken only if there were concerns about the baby’s status.

20. [82]

    Moreover, Professor Ryan did not consider that the imaging changes seen on the MRI scan were suggestive of or consistent with hypoxic ischaemic brain injury. She considered that the changes subsequently seen in the white matter of Benny’s brain related to toxicity from anti-convulsant Vigabatrin and that Benny’s seizures resulted from a cortical dysplasia in the left temporal parietal and occipital lobes, as reported by the consultant neuroradiologist Dr Coleman. Professor Ryan considered that these abnormalities were very different from those expected after an hypoxic ischaemic brain injury at birth.

21. [83]

    Furthermore, the feeding difficulties seen in the first few days after birth were transient and were contemporaneously attributed to the maternal factors of large breasts and inverted nipples. These difficulties were neither persistent nor severe.

22. [84]

    Question 2 asked whether there were any clinical signs which to the experts’ observation in the neonatal period were consistent with HIE. The experts disagreed on this issue.

23. [85]

    Dr Harbord considered that there were signs of HIE because on 3 April 2016, Benny was uninterested in feeding. On both 3 and 4 April he required feeds by spoon or syringe, which indicated an inability to feed by sucking.

24. [86]

    Dr Ryan accepted that Benny had feeding difficulties but noted that these resolved within 5 days when he was discharged. Benny did not have any other signs or symptoms that would be expected to be present if he had neonatal encephalopathy. For example, there were no abnormalities of tone or responsiveness and no seizures or other neurological abnormalities identified by the paediatric resident when Benny was checked.

25. [87]

    Professor Ryan emphasised that a baby with significant neonatal encephalopathy would never have feeding difficulties as an isolated or single manifestation of that condition: there would always be other signs and symptoms to support such a conclusion.

26. [88]

    Dr Harbord disagreed with Professor Ryan’s assumption that if Benny had exhibited any neurological symptoms in the neonatal period they would have been identified and recorded in the clinical notes by the treating nurses and doctors.

27. [89]

    Question 6 asked Dr Harbord and Professor Ryan what was the most likely cause or what were the most likely causes of Benny’s alleged brain injury, seizures and cognitive deficit.

28. [90]

    Dr Harbord considered that these things were caused by birth asphyxia: there was no evidence that there was any other cause for Benny’s neurological abnormalities. In particular, Dr Harbord did not consider that there is any cerebral dysplasia. Dr Harbord was not, in his capacity as a paediatric neurologist, convinced that there was any dysplasia in Benny’s left hemisphere shown in the imaging. However, he deferred to the radiologists when it came to the interpretation of the MRIs.

29. [91]

    Professor Ryan, by way of contrast, remained of the opinion that Benny’s neurological deficits resulted from focal cortical dysplasia in the left cerebral hemisphere, causing the development of severe epilepsy in infancy, or what is called West syndrome: this resulted in Benny’s persisting neurological deficits.

30. [92]

    The final group of experts who offered opinions on this question were the neuroradiologists, Dr Ross Keenan and Associate Professor Lee Coleman. Their joint report following a conclave is dated 14 December 2022. This joint report is particularly detailed and correspondingly difficult to summarise fairly. However, two general matters do emerge from this report. First, Dr Keenan and Professor Coleman disagree about what the radiological images say about the cause of Benny’s disabilities. Secondly, neither expert is able to assert that his opinion is definitively supported by what the radiological images show and each expert agreed that there was a significant amount of speculation involved in their respective interpretations. In that context, the following matters should be noted.

31. [93]

    Benny underwent an MRI of his brain on 28 September 2016. Each expert agreed that the images showed the presence of microhaemorrhages, observed in the form of three black dots in Benny’s right cerebellar hemisphere. There was also asymmetry in myelination being the formation of a myelin sheath around a nerve to allow for improved conduction. Professor Coleman considered that the asymmetry was evident albeit subtle. Doctor Keenan agreed. He noted that myelination is a dynamic process and takes time to evolve. He was not able to say whether this was delayed myelination, hypomyelination, being an inability to produce myelin at normal levels, or something else. The answer was conjectural.

32. [94]

    Professor Coleman and Dr Keenan agreed that the microhaemorrhages were present but that there was no associated hemisphere atrophy or malformation. Dr Keenan thought that the microbleeds were pathologic. He emphasised that they should not be present in a brain and should not be present in the cerebellum. He considered that the microbleeds in Benny’s brain had potential clinical significance. The experts were unable to agree upon what that significance might be. In summary, Professor Coleman and Dr Keenan disagreed on the significance of microbleeds but were otherwise in full agreement on this topic.

33. [95]

    A second MRI of Benny’s brain was performed on 18 April 2017, when he was 12 months old. Benny was by then on Vigabatrin. The experts agreed that there were indications of Vigabatrin related neurotoxicity, or cytotoxic oedema.

34. [96]

    Professor Coleman described what he observed as a case of dysplastic development or, in lay terms, a badly made brain. The experts offered these interpretations of the radiological features:

35. [97]

    A third MRI of Benny’s brain was performed on 28 September 2017. The Vigabatrin toxicity had resolved. The scan was otherwise relevantly uninformative for present purposes.

36. [98]

    A fourth MRI of Benny’s brain was performed on 13 January 2020. After referring to the features observed on this scan, the experts said this:

37. [99]

    These experts were then asked to offer their opinions upon the critical question of whether the imaging was consistent with a perinatal hypoxic ischaemic insult. Their responses were as follows:

38. [100]

    Finally, the experts were asked whether the imaging was consistent with a dysplastic brain parenchyma. Professor Coleman considered that Benny’s brain was developmentally abnormal. Dr Keenan disagreed.

Consideration: Separate Question 2

1. [101]

   This question has been the subject of obstetric, neurological and neuroradiological opinions. It distils to the issue of whether the evidence supports the cause for Benny’s foetal/neonatal condition was consistent with an hypoxic ischaemic encephalopathy or other neonatal injury sustained during birth.

2. [102]

   Dr Keogh was emphatic that there is no possibility that Benny suffered any kind of perinatal hypoxic ischaemic insult. I have already indicated that I found the emphatic and strident terms in which he expressed his opinion on this issue, quoted earlier to be reliable and persuasive. As Dr Keogh said, Benny “never ever, ever, ever, showed any sign of newborn encephalopathy.” To like effect, Professor Chapman was also of the opinion that what happened to Benny was not consistent with hypoxic ischaemic encephalopathy: Benny was depressed at birth but recovered quickly and subsequently went to his mother. Professor O’Connor did not think Benny had hypoxic ischaemic encephalopathy. Only Dr Schmidt thought that he did.

3. [103]

   Of the neurologists, Dr Ryan accepted that there was evidence of intrapartum hypoxia, as demonstrated by the changes in Benny’s heart rate and low pH present at birth on the cord blood, plus the need for resuscitation, but she considered that the hypoxia was transient and did not lead to hypoxic ischaemic brain injury: Benny’s pH normalised quickly, the resuscitation time was relatively minimal and his presentation returned to normal thereafter.

4. [104]

   Dr Harbord was of the opinion that Benny suffered from intrapartum hypoxia and ischaemia. He placed significant emphasis upon Benny’s feeding difficulties and attachment problems, among other things. These included severe acidosis and pH anomalies. Regular spontaneous respiration did not occur for 5 minutes following delivery. Other experts, particularly Dr Keogh, were critical of Dr Harbord’s reliance upon Benny’s feeding difficulties as they had maternal anatomical causes and resolved shortly after birth.

5. [105]

   Dr Keenan and Professor Coleman were largely in agreement about nearly all matters apart from the issue of the existence of hypoxic ischaemic encephalopathy. The radiographic evidence was not unambiguously determinative. Dr Keenan accepted that there are changes on the scan which also cannot be ascribed to hypoxic ischaemia like an acute perinatal insult. He conceded that whatever happened was not an acute perinatal insult. Professor Coleman considered that Benny’s left temporo-parietal occipital lobe abnormality was not a perinatal insult. Significantly in my opinion, given what amounted to the inconclusive nature of the radiological evidence, was the comment by Professor Coleman to the effect that the clinical history is likely to be the most fertile source of evidence for the answer. That would in my opinion inevitably bring the focus back to the obstetricians and to the emphatic views of Dr Keogh.

6. [106]

   Before continuing, it is important to observe that the opinions expressed by the experts were ultimately and necessarily based on an understanding of what occurred on 2 April 2016, which was in turn drawn from the recollections of the specialists in charge of Benny’s care immediately following his birth and what they observed about him. The question of whether Benny exhibited or presented with signs that were conclusive of, or even consistent with, the existence of hypoxic ischaemic encephalopathy, finds its answer in the examination of whether the extreme clinical presentation of the type described by Dr Keogh in infants so affected were seen and recorded by the doctors in this case.

7. [107]

   Dr Innes is a specialist paediatric neurologist. As at April 2016, she had been accepted into the paediatrics training programme with the Royal Australasian College of Physicians and was employed as a senior resident medical officer through the neonatology department at the Royal Hospital for Women. Dr Innes was present at 11:38 hours on 2 April 2016 when Benny was born. She gave oral evidence in the proceedings. Her statement is dated 24 April 2024. It included the following observations:

8. [108]

   Dr Sinclair is a specialist neonatologist. As at April 2016, she was employed by the South Eastern Sydney Local Health District as a paediatrics fellow at the Royal Hospital for Women. Dr Sinclair gave oral evidence in the proceedings. Her statement is dated 24 April 2024. It included the following observations:

9. [109]

   Having regard to the evidence of Dr Innes and Dr Sinclair, to their particular specialties, and to the evidence in this case which suggests that it is “not a subtle diagnosis”, I am unable to accept that if Benny had been born with hypoxic ischaemic encephalopathy, it would not have been observed, recorded and followed up by these doctors and others at the hospital immediately following his birth and at the very latest prior to his discharge.

10. [110]

    I acknowledge that Dr Innes and Dr Sinclair were both cross-examined and that the plaintiffs would wish to assert that, conformably with the questions they were asked, they had an interest in the outcome of the proceedings and that such an interest should at least be taken into account by me in the assessment or their evidence. I acknowledge the force of such a forensic concern. However, I remain of the view that if Benny had been as severely compromised by an intrapartum insult as the plaintiffs are attempting to establish, it is extremely unlikely that this would not have been reflected in the contemporaneous records or the later recollections of any one, if not everyone, concerned with Ms Nemes’ confinement, Benny’s antenatal care and his delivery.

11. [111]

    I should also note that I am disinclined to place too great an emphasis upon the recollections of Benny’s parents, lest it be thought I have been unfairly critical having regard to the understandable difficulties that Benny’s condition has created for them. However, each provided an evidentiary statement for use in these proceedings. It is sufficient for present purposes to observe that Ms Nemes only relevant observation about Benny’s condition while at the hospital before discharge is to be found at paragraph 23 of her first evidentiary statement dated 17 July 2020:

12. [112]

    Mr Nemes’ evidentiary statement is dated 17 July 2020. The only reference in that statement to Benny’s condition at the hospital is in paragraph 13 as follow:

13. [113]

    I reiterate that neither of Benny’s parents is medically trained and I do not wish to appear to criticise them for any perceived inadequacies or deficiencies in their statements. What was or was not included in those statements cannot in my experience always or only be attributed to the parties. I merely wish to record that if Benny had been exhibiting the extreme signs described by Dr Keogh that are characteristic of hypoxic encephalopathy, it is unusual that these would not have been referred to by his parents for the purposes of their evidence in these proceedings on such a critical issue. `

14. [114]

    Having regard to the evidence, which I take to be partly reflected in the statements of doctors Innes and Sinclair, I am not satisfied that any of Benny’s injuries or disabilities were caused or contributed to by delay in his delivery. He did not sustain an hypoxic ischaemic insult and he does not now suffer from hypoxic ischaemic encephalopathy. I am content to repeat, and to rely upon, Dr Keogh’s evidence in concurrent session, which is set out in greater detail and context earlier in these reasons at [77], where he said:

15. [115]

    It follows that this question must be answered “No”.

SEPARATE QUESTION 4: WAS ANY PURPORTED FAILURE TO PRESCRIBE ANTIBIOTICS IN (3) CAUSATIVE OF THE PLAINTIFF’S SUBSEQUENT DISABILITY?

1. [116]

   As will be apparent, these issues have been dealt with earlier in these reasons.

SEPARATE QUESTION 6: WAS THE PURPORTED MANNER OF ADMINISTRATION OF SYNTOCINON IN (5) CAUSATIVE OF THE PLAINTIFF'S SUBSEQUENT DISABILITY?

1. [117]

   Joint Question 2 that the obstetricians were asked dealt with these issues and is as follows:

2. [118]

   Professor O'Connor considered that the use of Syntocinon has to be curtailed and discontinued if there are repeated foetal heart rate abnormalities. His opinion was that it is not reasonable to use Syntocinon when recurrent decelerations are present.

3. [119]

   Dr Schmidt agreed with Professor O'Connor. He said that Syntocinon stimulation, with a foetal heart rate of 160-170 bpm which has increased from 130 bpm in early labour, was contraindicated, even more so with recurrent decelerations superimposed on foetal tachycardia.

4. [120]

   Professor Keogh gave a more expansive answer to this question in the following terms:

5. [121]

   Joint Question 2(b) is as follows:

6. [122]

   Professor O'Connor's answer to this question was "possibly". That was because he was of the view that the Syntocinon was continued in the presence of foetal heart rate abnormalities.

7. [123]

   Professor Chapman thought the fact that the deceleration ceased made him believe that the Syntocinon did not contribute anything. He would have continued the Syntocinon "as it was done and doesn't affect the outcome."

8. [124]

   Professor Keogh agreed that hyperstimulation was dangerous, but insisted, consistently with the views he had earlier expressed, that it was irrelevant here because "hyperstimulation did not at any stage occur". He explained this as follows:

9. [125]

   Professor Keogh's concurrent evidence about this should also be noted as follows:

10. [126]

    Dr Keogh’s evidence in joint session should also be noted:

Consideration: Separate Questions 5 and 6

1. [127]

   In my view, both questions must be answered “No”.

2. [128]

   Even if it were to be assumed for the purpose of the inquiry that the Syntocinon administration were flawed in some way, there is absolutely no satisfactory evidence to establish on the balance of probabilities that it caused any enduring loss of the type that is claimed to have been sustained in this case. It is clear that a review of the transcript of the concurrent evidence of the obstetricians will reveal that Mr Cranitch was implicitly, if not explicitly, critical of the way in which Dr Keogh gave his evidence. In making that comment I do not intend to suggest that Mr Cranitch was doing any more or less than legitimately attempting in an adversarial contest to maintain his clients’ best interests in a difficult case. However, as I have already noted elsewhere, Dr Keogh’s evidence and opinions were expressed with a significant degree of confidence that did not to my observation at any stage appear to descend into a partisan analysis. The scientific evidence in this case required expert explanation before it can be understood and applied by me. Dr Keogh’s explanations were well reasoned and persuasive. More particularly, the evidence that Benny was never encephalopathic is in my view overwhelming. Experts hypothesising about Syntocinon infusions did not serve to cast any doubt upon that fact.

Failure to administer a foetal scalp test

1. [129]

   The plaintiffs contended that a foetal scalp test ought to have been conducted. The question is whether in the clinical circumstances it was reasonable not to perform that intervention and whether, even if performed, it would have altered the mode and timing of delivery or outcome.

2. [130]

   There was no clinical indication to perform a foetal scalp blood sample before the second stage. During the second stage, it would have been reasonable to consider checking foetal welfare by way of a foetal blood scalp sample in light of decreased variability and decelerations. However, the decision to proceed to instrumental delivery without delay was also appropriate and reasonable. Nor was a foetal blood scalp sample required during the first stage.

3. [131]

   Professor O’Connor contended each time the trace was either non-reassuring or pathological by reason of reduced variability or a deceleration, a foetal scalp blood sample was indicated. Dr Schmidt contended a foetal blood scalp sample was “actually very easy to do”. The defendant maintained that neither opinion should be accepted.

4. [132]

   The Guidelines to which Professor O’Connor refers in his report do not recommend a foetal scalp blood sample on each occasion that a trace is non-reassuring. Section 4 of the Guidelines notes the poor predictive value of FHR pattern interpretation and recommends that foetal scalp blood sampling and/or expedited birth be considered in the presence of a pathological FHR pattern. At no time was the trace pathological during the first stage of labour.

5. [133]

   Consistently with the Guidelines, Dr Keogh deposed that at no time in the first stage of labour was there a situation where the team would have been significantly worried about the baby and as such, there was no need for a scalp sample. Scalp samples are not common practice.

6. [134]

   Likewise, Dr Chapman estimated that at St George Hospital, they would perform a foetal scalp sample approximately twice a week in a 2000 delivery-a-year unit. It is not done commonly and is an invasion. The defendant submitted that I would accept that foetal scalp blood samples are not common and certainly not performed every time a trace is “non-reassuring” as suggested by Professor O’Connor.

7. [135]

   As to the suggestion that the scalp sampling procedure was “easy”, Dr Keogh indicated in the concurrent evidence of the obstetricians that they are hard to do: “they’re tricky, they’re super uncomfortable for women, and, and they’re very invasive and, you know, you have a woman in a very compromising position when you’re doing one. So no-one likes them and so you don’t rush to do them just when you get a minor abnormality, especially if its self-correcting”.

8. [136]

   The defendant contended that I would accept that foetal scalp blood sampling is not common, not easily performed and is invasive. Guidelines suggest it should be considered with a pathological trace. At no time in the first stage of labour was this trace pathological and there was no indication to proceed to foetal blood scalp sampling.

9. [137]

   Nor was such sampling indicated in the first stage of labour.

10. [138]

    Dr McCormack documented in her operation report that following her review of Ms Nemes from 10:15 hours, she formed the view that intervention was indicated due to “prolonged second stage, suspicious CTG in [Delivery Suite] and head persistently at spines”. Dr McCormack gave evidence that it is “most likely” that she considered a lactate (foetal scalp blood sampling) but decided against it in favour of avoiding delay and making the necessary arrangements to facilitate transfer to theatre to expedite the birth of the baby.

11. [139]

    The decision to proceed promptly to deliver Benny, avoiding the delay of scalp sampling, was appropriate. Dr Keogh agreed that foetal blood scalp sampling was an option “but what they have done instead is take her to the theatre for delivery” which was a reasonable alternative step. Dr Chapman says the only indication for a scalp sample in that scenario would be if the baby were undeliverable or the skill of the registrar involved was such that she was not comfortable getting on forceps or a vacuum extraction. Dr McCormack was credentialled and competent to perform forceps delivery. Her competence was demonstrated by her successful and prompt mid-cavity instrumental delivery.

12. [140]

    Dr Keogh observed further that Dr McCormack’s decision making was entirely consistent with recommendations in the Guidelines:

13. [141]

    The defendant submitted that I would accept that whilst a foetal scalp blood sample in the second stage was an option, the decision to proceed to expedited delivery by trial of forceps or Caesarean was in accordance with peer professional opinion as to competent professional practice.

14. [142]

    It is the plaintiffs’ case that due to oversight, inaction and a failure to take appropriate measures such as a foetal scalp analysis, the pregnancy went longer than it should have, thereby exposing Benny to an hypoxic insult. The plaintiffs maintained that the CTG indications, together with other features of the pregnancy, required better monitoring during first stage by way of a foetal blood sample and more decisive management once Benny was deliverable at 8.20.

15. [143]

    Professor O'Connor believed foetal blood sampling was required as early as 21.00 on 1 April 2016. Dr Schmidt considered that foetal blood sampling was necessary shortly after deceleration at 01:40. He was attacked on the basis that his initial opinion was that there was no need to deliver the baby before 9.34 on 2 April 2016. Whilst Dr Schmidt changed his opinion after closer analysis of the CTG, he was not saying that Benny should have been delivered the night before but rather that, on his interpretation of the trace which showed a prolonged period of tachycardia without any variability, a lactate should have been performed to determine the direction of labour.

16. [144]

    Dr Keogh thought that it would have been reasonable to do a foetal blood sample in the second stage but both he and Dr Chapman thought it reasonable not to do so when the team had decided to take the mother to theatre. The plaintiffs submitted that this ignores the suspicious nature of the trace from 03.14. On the evidence of Dr Stamatopoulos, a suspicious trace for this length of time would be pathological and required foetal lactate analysis. Drs Keogh and Chapman were silent on whether foetal blood sampling was required during the first stage of labour.

17. [145]

    On balance, Dr Schmidt appears to be of the view that a scalp sampling at the second stage would not have made a difference.

18. [146]

    The plaintiffs submitted that Dr Schmidt’s opinion that the second stage was complicated by indecision is justified. The evidence discloses that Ms Nemes was first assessed by a doctor at 10:15 approximately 2 hours after she entered the second stage of labour. From the commencement of the shift at about 8 am, Ms Nemes was under the care of Midwife Ellis, who did not here give evidence as to what happened during that period or why it took until 10:15 for her to arrange for a medical examination. Midwife Ellis was not called to give evidence despite being the midwife who took care of Ms Nemes when she presented to hospital on 1 April 2016 when her suggestion that she go home was overruled. She was also the midwife in charge of Ms Nemes’ care during the second stage of labour. An inference should be drawn that evidence Midwife Ellis would have given would have been adverse to the defendant's case, particularly in circumstances where she still works with the defendant.

Consideration

1. [147]

   The allegation that the defendant failed to take a foetal scalp sample has no force or effect in these proceedings unless that failure can be tied to the cause of some loss or damage. It is necessarily the plaintiffs’ position that Benny’s antenatal condition would have been better understood if scalp monitoring had occurred in a way and at a time when what Dr Schmidt has characterised as indecision was stalling the appropriate response to the clinical indications. The plaintiffs contend that a foetal scalp sample would have clarified the position and dispelled the indecision.

2. [148]

   The difficulty with that proposition, for the purposes of the proceedings, is that I have concluded that Benny did not sustain any injury as the result of a failure to deliver him earlier, or as the result of what in the present context the plaintiffs would characterise as indecision. Even accepting, once again for the sake of argument, that a foetal scalp sample was indicated, the failure to proceed to administer such a test was without identifiable consequences.

Conclusion

1. [149]

   The answers I have provided to the separate questions are sufficient to dispose of the proceedings. Those answers mean that the plaintiffs have not established that any alleged breach of duty of care during labour was causative of Benny’s seizures or Global Developmental Delay. I am satisfied that Benny was never encephalopathic. He was well until five months after birth. In the absence of encephalopathy, it is not possible to establish that Benny’s brain condition can be attributed to a perinatal cause. I am satisfied that Benny has a brain malformation that occurred or developed in utero but which is unrelated to the birthing process.

Orders

1. [150]

   In the circumstances, I make the following orders:

   1. (1)

      Judgment for the defendant.

   2. (2)

      Order the plaintiffs to pay the defendant’s costs.