Coffey v Murrumbidgee Local Health District formerly known as Greater Murray Area Health Service

1. [1]

   HIS HONOUR: James Coffey was born at the Wagga Wagga Base Hospital on 19 January 2004. At that time his mother, Kathleen Coffey, had been pregnant for only 27 weeks and 2 days. His extreme prematurity would have compromised his prospects of a satisfactory perinatal outcome in any circumstances. It is contended in these proceedings, however, that those prospects were significantly diminished even further by the hospital’s failings in a number of different respects. In short, but by no means comprehensively, the plaintiff says that from approximately 6am on 5 January 2004, when Ms Coffey was admitted to the hospital, it should have been apparent that his mother was likely to deliver before 32 weeks and that she should have been referred to a tertiary facility for management well in advance of her confinement and his delivery. Principal among the allegations of negligence is that the Wagga Wagga Base Hospital was at that time not accredited to deliver a baby of less than 32 weeks gestation or to manage a neonate of less than 34 weeks gestation. The plaintiff maintains that such limitations emphatically informed what should have been done in the circumstances and that the hospital’s disregard for these imperatives caused him loss and damage. These and other allegations are examined in detail in what follows.

2. [2]

   Kathleen Coffey also sues the hospital for damages for nervous shock arising out of her reaction to the circumstances surrounding James’ birth and subsequent events.

Background

1. [3]

   James Coffey was born severely prematurely. He was unwell when delivered and remains so. Determination of the cause or causes of his condition at birth and what continues to afflict him is central to the disposition of these proceedings. One of the significant questions that arise is whether or not James Coffey’s outcome would have been different or his chronically depreciated condition lessened or avoided if the defendant had transferred his mother to the Canberra Hospital at a time before his delivery when it was safe to do so. It is in that context, therefore, timely to record at some length the details of his condition at birth.

2. [4]

   The following matters, largely taken from the Joint Statement of Assumptions provided to the various conclaves of experts, are not controversial.

3. [5]

   Kathleen Coffey was born in March 1974.

4. [6]

   Ms Coffey's first child was delivered in February 1997 by elective caesarean section at approximately 26 weeks gestation because of severe pre-eclampsia. Her second child was born by spontaneous vaginal delivery in August 1998 at approximately 36 weeks gestation. Her third child was born by emergency caesarean section in July 2001 at approximately 32 weeks and 3 days gestation after a spontaneous rupture of membranes.

5. [7]

   The plaintiff James Coffey was born at the Wagga Wagga Base Hospital on 19 January 2004. Ms Coffey's pregnancy with James was classified by the hospital as “high-risk”.

6. [8]

   As at January 2004, the hospital had a Level 5 maternity service but did not have a Neonatal Intensive Care Unit. However, at the same time, the Canberra Hospital was a tertiary hospital and had such a unit.

7. [9]

   In June 2003, Ms Coffey informed her general practitioner Dr Harvey-Smith that she was considering another pregnancy. Dr Harvey-Smith referred her to Dr Ian Stewart, an obstetrician and gynaecologist at the hospital. At this time, Ms Coffey also remained under the care of Dr Ian Smee, a consultant physician and cardiologist. Dr Smee advised Ms Coffey of his concern that in light of her previous pulmonary embolism, she may need to take anti-thrombotic therapy during any pregnancy, with possible side effects (some serious) for her and her baby.

8. [10]

   Ms Coffey discovered that she was pregnant in about late July 2003 after she did a home pregnancy test. She attended the antenatal clinic at the hospital for her first booking visit on 18 August 2003. She indicated that she was not sure how pregnant she was as she had not had a period since February 2003. Arrangements were made for her to undergo a dating ultrasound in two weeks. Her blood pressure was taken at 150/80 and a full blood count was performed. Dr Mohamed Abdeen contacted Dr Smee, who advised that anti-coagulants would not be required unless Ms Coffey developed pulmonary embolism, provided there were no abnormalities on her thrombophilia screening.

9. [11]

   Ms Coffey then attended the antenatal clinic at the hospital on 21 August 2003, at which time she reported some spotting three days earlier. On 4 September 2003, Ms Coffey attended the antenatal clinic again and underwent a dating ultrasound, which demonstrated a single pregnancy with measurements consistent with a gestation period of 7 weeks and 5 days. The estimated date of confinement was calculated to be 17 April 2004.

10. [12]

    On 10 September 2003, Ms Coffey returned to the antenatal clinic, which was at 8 weeks and 6 days gestation. Her weight was 108.6kg and her blood pressure was 140/80. She was considered to be obese. Dr Smee reviewed Ms Coffey on 4 November 2003 for treatment and advice for pregnancy related hypertension. He referred her to the hospital on 4 November 2003 where she was admitted for observation and review of her medications. Dr Abdeen reviewed Ms Coffey on 4 November 2003.

11. [13]

    Ms Coffey was discharged on 6 November 2003. She was then taking Labetalol 200mg and Aldomet 500mg each three times daily. The plan on discharge was for her blood pressure to be monitored whilst she was at home.

12. [14]

    Ms Coffey re-attended the antenatal clinic on 12 November 2003 for a routine antenatal visit at 17 weeks and 4 days gestation. Her weight was 112.2kg, her blood pressure was 110/60 and urinalysis showed no abnormalities. Ms Coffey’s blood pressure medication was the same but she was prescribed Cartia 100mg daily as well.

13. [15]

    The attending doctor in the antenatal clinic discussed Ms Coffey's management with Dr Smee who agreed to reduce her Aldomet to 250mg three times daily. A renal ultrasound was performed the same day and reported to show no evidence of renal artery stenosis.

14. [16]

    Ms Coffey attended the antenatal clinic on 19 November 2003 for a routine visit at 18 weeks and 4 days gestation. Her weight was 113.3kg, her blood pressure was 120/60 and urinalysis showed no abnormality. Fundal height was 19cm and foetal heart sounds were heard.

15. [17]

    Ms Coffey underwent a routine morphology ultrasound scan on 25 November 2003 that demonstrated a single pregnancy and measurements consistent with 19 weeks gestation (estimated date of confinement 20 April 2004 plus or minus 12 days). Because of Ms Coffey's maternal body habitus, morphology assessment was generally difficult but no gross foetal abnormality was demonstrated. The placenta was fundal in position, there was a three vessel cord and the cervix was noted to have a normal appearance.

16. [18]

    On 3 December 2003, Ms Coffey attended the antenatal clinic for her next routine visit at 20 weeks gestation. Her weight was 114kg, her blood pressure was 130/70 and urinalysis showed a trace of glucose. The fundal height was consistent with the dates and foetal heart sounds were heard.

17. [19]

    Two weeks later Ms Coffey attended the antenatal clinic for a routine visit at 22 weeks and 4 days gestation. Her weight was 112.9kg, blood pressure was 125/65 and urinalysis demonstrated traces of protein, glucose and urate. The fundal height was 24cm and foetal heart sounds were heard.

18. [20]

    In the 24 hours prior to 4 January 2004, Ms Coffey had been experiencing contractions (recorded in the notes as "contraction-like pains"), initially 20 minutes apart and then every 10 minutes, lasting 30 seconds. At approximately 1825 hours on that day, Ms Coffey telephoned the hospital and reported contraction-like pains since the previous day. She was advised to proceed to the hospital as soon as possible.

19. [21]

    Ms Coffey arrived at the hospital at 1930 hours and was admitted under the care of Dr John Currie with a provisional diagnosis of threatened premature labour. The initial midwifery entry at 2000 hours notes that she was estimated to be at 25 weeks and 2 days gestation and reported experiencing contraction-like pains for the past 24 hours, initially 20 minutes apart, but then approximately 10 minutes apart, lasting 30 seconds. The midwives began an unestablished labour progress chart recording her observations and the contraction pattern. That chart was maintained during the 4–10 January 2004 admission. CTG monitoring was also commenced. The contractions were recorded in both the Unestablished Labour Progress Chart and in the notes.

20. [22]

    Ms Coffey stated when admitted that she was taking Aldomet (250mg twice daily) and Labetalol (200mg twice daily). At 1930 hours, Dr Currie was contacted by telephone by the attending midwife. He requested a vaginal examination, which the midwife carried out. Ms Coffey's cervix was found to be thick, posterior and multi os, with the presenting part not felt. Dr Currie gave a phone order for Celestone 11.4mg IMI stat, with a repeat in 12 hours and Adalat 20mg oral stat, to be repeated in 30 minutes and again in a further 30 minutes if she was still contracting.

21. [23]

    The Progress Chart entry as at 2000 hours is in the following terms:

22. [24]

    The two Celestone injections were given by Dr Bunting at 1940 hours on 4 January 2004 and 0840 hours on 5 January 2004 in accordance with the phone order by Dr Currie. The Adalat was first administered, again by Dr Bunting on the phone order of Dr Currie, at 1940 hours and then again at 2010 and 2040 hours. It was then continued 4 times daily during the 4–10 January 2004 admission. The CTG was discontinued at 2115 hours. The Progress Chart entry at 2120 hours is in the following terms:

23. [25]

    The Progress Chart entry at 0200 hours on 5 January 2004 is in the following terms:

24. [26]

    During the morning of 5 January 2004, Ms Coffey was reviewed by Dr Bunting and Dr Follett, and later by Drs Bunting, Follett and Currie. Ms Coffey told them that she had had no abdominal pains since 0130 hours. Arrangements were made for TEDS stockings and for Ms Coffey to mobilise gently.

25. [27]

    At 1430 hours, Ms Coffey reported that she had not experienced any tightenings that day and had had no PV loss. At 2000 hours, she reported no contractions or tightenings.

26. [28]

    On 6 January 2004 at 0635 hours, Ms Coffey reported no contractions or tightenings. She was reviewed by Dr Bunting and Dr Follett during the morning and reported having recently experienced her first contraction since the previous day. The Progress Chart entry is as follows:

27. [29]

    At 1100 hours, Ms Coffey reported that she had experienced no further contractions since the earlier review by Drs Bunting and Follett. At 2130 hours, she reported having had one tightening which was non-painful and nil PV loss.

28. [30]

    On 7 January 2004 at 0700 hours, Ms Coffey reported that she had had no tightenings overnight. Later that morning she was reviewed by Drs Bunting and Follett and reported having experienced two to three contraction-like pains in the previous 24 hours but no PV loss. The doctors noted that observations were to continue and that she was to undergo a glucose challenge test the following week. The Progress Chart is as follows:

29. [31]

    At 1330 hours, Ms Coffey reported one contraction during the day shift. Urinalysis showed the presence of leucocytes and accordingly a mid-stream urine sample was collected and sent to pathology. At 2230 hours, Ms Coffey reported occasional tightenings. Adalat was continued.

30. [32]

    At 0515 hours on 8 January 2004, Ms Coffey reported no tightenings. She was reviewed later in the morning by Dr Follett, who took a history that the last contraction-like pain in the lower abdomen occurred the previous evening at approximately 2030 hours, lasting 10 to 15 seconds. Ms Coffey described no pains since. At 1400 hours, she reported two tightenings lasting 20 seconds that were five minutes apart.

31. [33]

    Later on the afternoon of 8 January 2004, Dr Bunting received and reviewed the urine culture report from the mid-stream urine taken the previous day. This showed a large number of leucocytes greater than 100 white cells. He also noted that proteus mirabilis had been cultured. Dr Bunting formed the view that Ms Coffey likely had a urinary tract infection, which may have been causing uterine irritability such as uterine tightenings. He recorded that his plan was to commence antibiotics and to repeat the mid-stream urine in a few days. The first dose of antibiotics was given to Ms Coffey at 2000 hours. She was continued on it, twice daily, through to her discharge on 10 January 2004.

32. [34]

    At 2255 hours, the attending midwife noted that Ms Coffey had a low grade temperature of 37.7°C. She also noted that she had experienced an unsettled afternoon and with uterine tightenings 2–8 minutes apart, lasting 20 to 30 seconds and occurring irregularly. The contractions were stated to have been reported to the Obstetric and Gynaecologist team at 1630 hours.

33. [35]

    During the morning of 9 January 2004, Dr Follett reviewed Ms Coffey, who reported having experienced one mild contraction that morning, but no PV loss. He noted that a speculum examination and foetal fibronectin test were to be done later that day. At 2150 hours, Ms Coffey reported no uterine tightenings or contractions.

34. [36]

    At 0510 hours on 10 January 2004, Ms Coffey reported no uterine tightenings. Later that morning, she was reviewed by Dr Bunting, who noted that there had been no contractions and that she was afebrile. Dr Bunting performed a speculum examination of the cervix, which he recorded as showing that the cervix was multi os/closed, long and very posterior. Dr Bunting further recorded that the foetal fibronectin test result was negative.

35. [37]

    Dr Bunting recorded the management plan for Ms Coffey, which included ceasing Labetalol, continuing Aldomet and Adalat, and discharging her that day, but returning her to the antenatal clinic on 14 January 2004, or earlier if she was concerned. She was to continue to rest. Further, Dr Bunting provided Ms Coffey with scripts for Adalat, Amoxycillin and Clavulanic Acid.

36. [38]

    Dr Bunting told Ms Coffey that she was okay to be discharged on 10 January 2004, but that she needed to come back to the antenatal clinic on 14 January 2004. He also told her that she should return to the hospital at any time if she was concerned, if she had abdominal pain or what felt like contractions, if she experienced any vaginal loss or bleeding or even if she had more general fever or flu-like symptoms. Dr Bunting told her that she would need to continue taking the Aldomet and Adalat as well as the antibiotics and to complete the course.

37. [39]

    Ms Coffey was discharged from the hospital at approximately 1235 hours by Dr Bunting.

38. [40]

    As at January 2004, the defendant was required to adhere to the terms of Policy Directives, Circulars and Protocols issued by the Department of Health NSW. In particular, these included Circular 2002/49 dated 23 April 2002 - Protocol for Administration of Tocolytic Agents (Intravenous Salbutamol or Oral Nifedipine) for Treatment of Premature Labour and Circular 99/71 dated 1 September 1999 - Policy for Emergency Obstetric and Neonatal Referrals.

39. [41]

    Circular 2002/49 is a protocol providing for the administration of Adalat and Celestone. The purpose for the administration of Adalat in a high risk pregnancy was to supress contractions. The administration of Celestone was to promote lung development in the unborn foetus.

40. [42]

    Ms Coffey attended the antenatal clinic at the hospital on 14 January 2004, and was seen by Dr Bunting. A dip stick urine test was done, which indicated no abnormality. Her blood pressure was 125/60 and mild hand oedema was noted. Her gestational age was noted to be 26 weeks and 4 days and her fundal height was recorded at 30cm. There was a cephalic presentation and the foetal heart rate was noted at 140 beats per minute.

41. [43]

    Dr Bunting recorded that Ms Coffey was well. On questioning, she described having experienced very occasional tightenings since her discharge. Dr Bunting organised for blood to be taken for a glucose challenge test and full blood count.

42. [44]

    Dr Bunting asked Ms Coffey to return to the clinic for further review in two weeks. He also told her that if she had any concerns, she could come into the hospital at any time.

43. [45]

    At 0630 hours on 19 January 2004, Ms Coffey presented to the hospital with a history of mild tightenings every ten minutes since 0530 hours, increasing to contractions four minutes apart and increasing in duration and strength. On arrival, the attending midwife had difficulty palpating the contractions, but they were assessed as being 3 to 5 minutes apart and lasting approximately 40 seconds. Ms Coffey had no PV loss, no increase in vaginal mucus and had no urinary frequency or stinging. She stated that she was taking the Adalat, Aldomet and Cartia as usual.

44. [46]

    A CTG trace was begun and it was interpreted to demonstrate a satisfactory foetal heart rate, though the tocograph was unable to pick up contractions. Dr Stewart was informed of Ms Coffey’s admission and organised to come in to review her.

45. [47]

    Abdominal examination by the midwife demonstrated a longitudinal lie and cephalic presentation, with the presenting part not engaged. Ms Coffey's temperature was 37.4°C, her pulse rate was 140 beats per minute and her blood pressure was 140/80. Urinalysis showed a trace of protein.

46. [48]

    On speculum examination, she was found to be fully dilated with the head on view at 0800 hours. Ms Coffey gave birth to James at 0810 hours. The placenta was expelled at 0814 hours. James was delivered by Dr Stewart at 28 weeks and 3 days gestation, assisted by two registered midwives as attendants. His APGAR scores were 5 at 1 minute, 5 at 5 minutes and 7 at 10 minutes. His birth weight was 1110gm, his length was 36.5cm and his head circumference was 24.8cm.

47. [49]

    Dr Preddy, a paediatrician, was called. Both the time when this occurred and the time when he arrived are in dispute. Dr Preddy intubated James at 0837 hours, 27 minutes after delivery.

48. [50]

    At delivery, James was ventilated via bag and mask and transferred to the special care nursery. He required cardiac massage for one minute (from 0815 hours to 0816 hours) with bag and mask ventilation then continuing with satisfactory respiratory status in terms of his heart rate and oxygen saturation level. The attending midwives recorded the oxygen saturation levels at 0815 hours, 0816 hours, 0817 hours and 0818 hours. At 0825 hours, the oxygen saturation level was noted to be 96%. At 0837 hours, when James was intubated, the oxygen saturation level was noted at 96-97%.

49. [51]

    By 0845 hours, James was being mechanically ventilated, with a respiratory rate of 50 breaths per minute, and oxygen requirement (FiO2) of 70% and I:E of 1:1.6, an oxygen saturation level of 98% and a heart rate of 154 beats per minute.

50. [52]

    The Newborn and paediatric Emergency Transport Service (NETS) was called to attend at 0922 hours. The precise arrival time is unclear, but the NETS team was on site and administered surfactant at 1140 hours, by which time the oxygen requirement had fallen to 35%. James was sedated with morphine and midazolam for transport and an umbilical arterial line was inserted.

51. [53]

    A blood gas taken 30 minutes after ventilation began, showed a pH of 7.43, a pO2 of 63.8, a pCO2 of 34.4 and a BE of -1.2.

52. [54]

    James’ chest x-ray showed a ground-glass appearance, consistent with respiratory distress syndrome of prematurity. He was discharged from the hospital at 1610 hours and arrived at the Canberra Hospital at 1625 hours pursuant to a transfer via the NETS team.

53. [55]

    On arrival at the Canberra Hospital, at age 8 hours, James was being ventilated with pressures of 23/5 and rate of 50 in 40% oxygen. He was given a second dose of surfactant at 1900 hours. He was also given prophylactic indomethacin to reduce the risk of intraventricular haemorrhage.

54. [56]

    James was cared for in the Neonatal Intensive Care Unit. Over the first 48 hours there, James' ventilation was slowly weaned. His maximal peak airway pressure was 28 cm H2O. His arterial blood gases and blood pressures were regarded as acceptable during the period. His maximal inspired oxygen concentration was 70%. James was extubated at 1100 hours on 21 January 2004 and subsequently remained on CPAP.

55. [57]

    On 24 January 2004, James developed an increasing oxygen requirement. His chest x-ray showed a collapse of the left lung, with blood tests being suggestive of sepsis. Proteus mirabilis was grown on a nasopharyngeal aspirate. James was treated with gentamicin, vancomycin and cefotaxime.

56. [58]

    At 0045 hours on 25 January 2004, James was noted to be having increasing apnoeas and bradycardias. A pCO2 of 120 was noted on a blood gas. He was then re-intubated and again ventilated and underwent insertion of a right radial arterial line. Because of hypotension with mean blood pressures of 22–23 mmHg, he was commenced on dopamine. His hypotension was attributed to poor myocardial function associated with extreme prematurity, hyaline membrane disease and cardiorespiratory depression at birth. James was again extubated on 28 January 2004.

57. [59]

    During this admission to the Canberra Hospital, James was diagnosed with patent ductus arteriosus. He was treated with therapeutic Indomethacin via a single course. He also suffered jaundice and was treated with phototherapy. His maximum plasma bilirubin level was 135mmol/L.

58. [60]

    James also suffered anaemia of prematurity during the Canberra Hospital admission and was transfused twice.

59. [61]

    James underwent a cranial ultrasound on 22 January 2004. Repeat ultrasounds were done on 27 January 2004, 29 January 2004, 5 February 2004, 12 February 2004, 19 February 2004 and 4 March 2004.

60. [62]

    During the Canberra Hospital admission, retinal examination revealed that James had incomplete retinal vascularisation in both eyes. He was also diagnosed with a staph aureus MRSA infection of the skin and was treated with gentamicin and vancomycin.

61. [63]

    By the time of James’ discharge from the Canberra Hospital on 8 March 2004, his weight was 2,090gm, his length was 42.5cm and his head circumference was 29.5cm. His post-conception age at that point was 34 weeks. He was being treated with theophylline PO 7.2mg 12 hourly, Pentavite 0.45mg PO daily, folic acid PO 50 micrograms daily, phosphorus PO 27mg 6 hourly, Fergon PO 0.5ml daily and 20% NaCl 1 mmol 6 hourly. He was also receiving Karicare with feeds. James' haemoglobin on 6 March 2004 was 93g/L and his haematocrit at the same time was 28%.

62. [64]

    James Coffey was transferred back to the Wagga Wagga Base Hospital on 8 March 2004, at 7 weeks of age. He was then on intranasal oxygen (0.09L/min) and was fed with high calorie milk, daily via gavage tube. He was slow to establish suck feeding, but was eventually discharged from the hospital on 4 April 2004, at about 11–12 weeks of age. He was then still on intranasal oxygen therapy due to mild bronchopulmonary dysplasia.

63. [65]

    A cranial ultrasound was performed on 26 March 2004.

The pleaded case

1. [66]

   It was in these circumstances that Ms Coffey and her son commenced the present proceedings. Although the pleadings have undergone substantial revision over time, the alleged breaches ultimately pleaded against the hospital were as follows.

2. [67]

   It is alleged that Ms Coffey should have been transferred to the Canberra Hospital on 5 January 2004 in anticipation of her confinement. Alternatively, it is alleged that this should have occurred by no later than some time during the period between 5 January 2004 and 19 January 2004. In the event that neither of these things occurred, it is alleged that Celestone should have been administered to Ms Coffey at 7 day intervals after its initial administration on 5 January 2004. In the further alternative, in circumstances where no transfer to Canberra Hospital occurred at any time before James’ delivery, it is alleged that steps should have been taken to ensure that a neonatologist or paediatrician was present at the point of delivery.

3. [68]

   In a slightly different context it is alleged that someone at the hospital should have discussed the terms of Circulars 2002/49 and 99/71 with Ms Coffey and also discussed with her the comparative services available to her and her then unborn child between Wagga Wagga Base Hospital and the Canberra Hospital. It is also alleged that Ms Coffey should have been given the benefit of a discussion about the reasons for the administration of Celestone on 5 January 2004 and its further administration thereafter. It is alleged that Ms Coffey should have been informed that the hospital could have requested advice concerning her transfer to the Canberra Hospital and should have informed her that if she became a patient at the Canberra Hospital on or about 5 January 2004 then her pregnancy would be managed by that hospital’s “High Risk Pregnancy” team.

4. [69]

   It is further alleged that the defendant should not have assessed Ms Coffey’s pregnancy as no longer being a high risk pregnancy upon the basis of a negative foetal fibronectin test carried out on 10 January 2004.

5. [70]

   So far as concerns the events that in fact occurred at the delivery, it is alleged that a paediatrician should immediately have been notified of Ms Coffey’s admission to the hospital on the morning of 19 January 2004 and should have been present at the birth. It is also alleged that James Coffey should have been intubated without delay following his birth that day and that the resuscitation process should have begun immediately thereafter. There is a related allegation that the defendant should have ensured that the resuscitation process was adequate immediately following James’ birth and that a resuscitation plan was then in place and that his respiratory distress was properly managed. Finally there is an allegation that immediate action should have been taken to stabilise James’ cardiorespiratory instability as soon as he was delivered and on a continuing basis.

6. [71]

   The defendant’s response to these allegations is as follows. The defendant concedes that Ms Coffey’s pregnancy was a high risk pregnancy by reason of her obstetric history. It also admits that if James Coffey were to have been born prematurely, there was a not insignificant risk that he would suffer from hyaline membrane disease and that the defendant was aware of this.

7. [72]

   With respect to the circulars, the defendant says that as at January 2004, it was required to adhere to them, subject to the exercise of clinical judgment and consideration of the particular individual circumstances of patients. The defendant admits that Circular 2002/49 applied to it and that it provided for the administration of Nifedipine (that is, Adelat) as a tocolytic agent and that it was customarily used by the defendant to suppress uterine contractions.

8. [73]

   The defendant also admitted that the circular provided for the administration of Celestone, a corticosteroid, and that it administered it to Ms Coffey to try to reduce the risk of lung disease in the event that James were born prematurely. The defendant admitted that as at January 2004 it was aware that one of the aims of using tocolysis was to delay preterm delivery in order to allow time for the administration of corticosteroids and the in-utero transfer of the mother to a tertiary perinatal centre with a view to reducing neonatal morbidity and mortality. This was subject to the exercise of clinical judgment and the particular needs of individual patients.

9. [74]

   The defendant also admitted that as at January 2004, the Canberra Hospital was one of the perinatal referral centres from which Wagga Wagga Base Hospital staff were able to seek advice and that they did not do so.

10. [75]

    The defendant admitted that Adelat was first administered to Ms Coffey at 1940 hours on 4 January 2004 and then at 2010 hours and 2040 hours. It was continued thereafter four times daily until Ms Coffey’s discharge on 10 January 2010. The defendant admitted that Celestone was administered on 4 January 2004 at 1940 hours and on 5 January 2004 at 0840 hours.

Precautions that should have been taken

1. [76]

   It is convenient at this point to record the way in which Ms Coffey and her son characterise the precautions that they contend should have been taken by the defendant in the circumstances.

2. [77]

   It is contended that Ms Coffey’s pregnancy should have been managed between 5 January 2004 and 19 January 2004 by a specialist obstetrician rather than by a resident medical officer. They submit that a plan of management should have been put in place prior to 26 weeks gestation to arrange for Ms Coffey to reside in Canberra from 26 weeks to 32 weeks into her pregnancy and to attend the Canberra Hospital for the birth. That plan should have included a recommendation for this approach being given to Ms Coffey together with advice about the benefits of delivering James at the Canberra Hospital rather than in Wagga. It is asserted that a discussion ought to have taken place with Ms Coffey shortly after her admission on 4 January 2004 in relation to these matters and the implications of Circular 2002/49, the use of tocolytic agents and corticosteroids and the need to be transferred to Canberra when not in preterm labour. It is contended that the Obstetric Team at Wagga Wagga Base Hospital should have contacted the High Risk Team at Canberra Hospital and discussed Ms Coffey’s presentation with them. Ms Coffey should have been transferred to Canberra Hospital. Circular 2002/49 “ought to have been adhered to”.

3. [78]

   In a similar vein, it is alleged that Ms Coffey ought not to have been discharged from Wagga Wagga Base Hospital on 10 January 2004 but that instead the prospect of transfer to Canberra Hospital should then have been discussed with her and she should in fact have been transferred. Alternatively, these things should have all occurred by 14 January 2004.

4. [79]

   It is submitted that a second course of corticosteroids should have been administered on 14 January 2004. The defendant should have realised that Ms Coffey was in labour on 19 January 2004 when she was admitted. She should have been transferred immediately to the labour ward and a resuscitation trolley should have been present at the birth. It is contended that a paediatrician skilled in the resuscitation and intubation of babies of less than 34 weeks gestation ought to have been notified when Ms Coffey arrived at the hospital and ought to have been present at the birth.

5. [80]

   James Coffey’s case is therefore that the harm from which he suffered substantially arose from the fact that he was born in a clinical setting where the standard of his immediate and subsequent post-natal care was inadequate to manage his gestational age. The risk was that he would be born prematurely. The defendant knew of that risk and it was not insignificant.

6. [81]

   It should be observed that, framed in this way, the case against the defendant does not include a pleaded allegation that some precaution or combination of precautions was available to it that could or should have been taken to avoid or reduce the risk that James might be born prematurely, whether at 27 weeks and 2 days gestation as occurred or at some other time. In other words, even though the defendant had the means, through the administration of appropriate drugs, possibly to forestall the onset of labour for as much as 48 hours, the apparent high likelihood of James’ premature birth is not in issue, once Ms Coffey’s presentation at the hospital on 4 January 2004 is accepted on both sides. There is correspondingly no suggestion of any want of care on the defendant’s part before that date. Indeed, the high likelihood of a premature delivery is central to the way in which the plaintiffs propound their case. It was the spectre under the shadow of which the plaintiffs contend the defendant should have acted differently.

Summary of the plaintiffs’ case

1. [82]

   James Coffey was at risk of premature birth. Prior to 4 January 2004, his mother should have been advised to reside in Canberra for the period of 24 to 32 weeks gestation because it was clinically appropriate to do so. Ms Coffey would have acted upon such advice and gone to Canberra for care at Canberra Hospital.

2. [83]

   When Ms Coffey was admitted to Wagga Wagga Base Hospital on 4 January 2004, she was in threatened premature labour. She ought to have been given advice then or on the following day about the transfer of her care and the care of the baby, should he be born prematurely, to Canberra Hospital. This was also clinically appropriate.

3. [84]

   Moreover, Circular 2002/49 warranted the transfer of Ms Coffey once she had been placed on Nifedipine, a tocolytic agent, and once cover with corticosteroids had commenced. James Coffey should have been transferred to Canberra Hospital in utero.

4. [85]

   Dr Currie was of the view that it would be unlikely that she would reach 30 weeks gestation before delivery. Dr Stewart was of the view that once she went into labour she would deliver quickly. In those circumstances, transfer ought to have taken place because Wagga Wagga Base Hospital was not accredited either to deliver babies of less than 32 weeks gestation or to look after them.

5. [86]

   It was too late to transfer once labour had commenced.

6. [87]

   Dr Bunting’s plan was to deliver James in Wagga Wagga. This was inappropriate because the hospital was not accredited to do so and there were well-established benefits to being born in a tertiary care centre.

7. [88]

   As at both 10 January 2004 and 14 January 2004, despite the foetal fibronectin test being negative, advice about transfer should have been given and the transfer arranged. This is because on both dates there was still a significant risk of preterm birth. The negative foetal fibronectin test did not negate that risk. It pointed to a safe time to transfer in-utero.

8. [89]

   A second course of corticosteroids ought to have been commenced on 14 January 2004, which was when Ms Coffey next returned to the antenatal clinic after her discharge from hospital on 10 January 2004.

9. [90]

   Transfer to Canberra Hospital was a precaution against the risks of harm to James that should have been taken. Corticosteroids were an additional precaution against the risks of harm to him.

10. [91]

    When Ms Coffey came into hospital on 19 January 2004, she was in labour. Her symptoms were consistent with labour and an earlier vaginal examination would have confirmed this. That is what would have happened at Canberra Hospital. The Court should assume that Canberra Hospital would have acted competently.

11. [92]

    At Wagga Wagga Base Hospital Ms Coffey ought then have been transferred to the delivery suite, a partogram should have been commenced, a resuscitation trolley should have been made available for the delivery and a paediatrician experienced in preterm delivery, resuscitation and intubation ought to have been present when that occurred. The Wagga Wagga Base Hospital’s own guidelines mandated the presence of a paediatrician with appropriate experience as well as a resuscitation trolley.

12. [93]

    The events that occurred in James Coffey’s resuscitation at Wagga Wagga Base Hospital would not have occurred and the factors identified as contributing to an intraventricular haemorrhage would not have happened.

13. [94]

    Resuscitation included a period of six minutes of cardiac massage. This was inappropriate. There was also cardiorespiratory instability and James was fighting against the ventilator. These things each caused or were material contributing factors to his intraventricular haemorrhage.

14. [95]

    Had Ms Coffey given birth at the Canberra Hospital, it would have been in the delivery suite with a resuscitation trolley available and a neonatologist or neonatal registrar in attendance. Those doctors would have had experience in resuscitating babies of 27 weeks gestation. Neonatal intensive care nurses would have been present to assist in that resuscitation.

15. [96]

    James Coffey would have been resuscitated properly. The cardiorespiratory instability would not have occurred. The cardiac massage would not have occurred. Fighting against the ventilator would not have occurred because James would probably not have needed intubation.

16. [97]

    Following immediate resuscitation, James would have been moved to the Neonatal Intensive Care Unit where there were greater skills and facilities for the continuation of resuscitation and proper care immediately thereafter. This would have prevented cardiorespiratory instability. Surfactant would have been given earlier.

17. [98]

    The failure to take precautions against the identified risks of harm was a material contributing factor to the causation of the intraventricular haemorrhage.

18. [99]

    James Coffey sustained either a grade 3 or a grade 2 intraventricular haemorrhage which in either case contributed to or caused his neuro-developmental impairment. It is unlikely that the intraventricular haemorrhage was due to prematurity per se. It is also unlikely that the 17q12 micro duplication caused all of James Coffey’s neuro-developmental impairment, if any.

19. [100]

    James Coffey alleges a contract between his mother and the Wagga Wagga Base Hospital for the provision of medical advice and services in accordance with a standard of care reasonably to be expected of a person in the position of the hospital. He alleges that it was a condition of that contract that the hospital would comply with policy directives and circulars issued to it by the NSW Department of Health, in particular Circular 2009/49 and Circular 99/71, and to provide medical advice and services in accordance with a standard of care reasonably to be expected of a person in the position of the hospital.

20. [101]

    Further, James Coffey pleads exceptional circumstances in relation to the failure to transfer his mother to Canberra Hospital prior to his delivery and repeat the administration of Celestone.

Section 5O

1. [102]

   Section 5O of the Civil Liability Act 2005 provides as follows:

2. [103]

   It is now established that in cases in which a defendant raises this provision in response to a plaintiff’s claim, evidence of peer professional opinion as to competent professional practice, if accepted, establishes the standard of care to be applied in the instant case. That is to be distinguished from cases in which, where negligence is alleged, the standard of care is established by application of the elements set forth in s 5B of the Act.

3. [104]

   In Dobler v Halverson (2007) 70 NSWLR 151; [2007] NSWCA 335, Giles JA pointed out the manner in which s 5O works an important change to the situation under the common law as it was pronounced in Rogers v Whitaker:

4. [105]

   The proposition that s 5O dictates a departure from the common law principle that judges determine the standard of care was later re-emphasised in Dobler as follows:

5. [106]

   Allsop P, in Sydney South West Area Health Service v MD (2009) 260 ALR 702; [2009] NSWCA 343 at [51], cited Dobler with approval saying:

6. [107]

   The defendant contended that this “must be correct”. That is because the assessment of the conduct of a defendant professional cannot occur in the context of s 5B of the Act without reference to s 5O. Section 5B, subject to causation, determines liability in negligence. Section 5O qualifies the operation of s 5B, in cases to which s 5O applies, by determining the standard of care.

7. [108]

   Some provisions in the Civil Liability Act operate as a defence to “civil liability” and are thus invoked after a finding of negligence. Section 43A is said to be an example. The application of that section involves a “two-stepped approach”, requiring a plaintiff to make out negligence and then satisfy a further, not inconsistent, statutory test. However, that construction cannot be accommodated where s 5O applies because that would require separate, but potentially inconsistent, findings of negligence: first, an assessment under s 5B (applying Rogers v Whitaker) and secondly, an assessment under s 5O (applying its terms).

8. [109]

   It follows that, where a professional adduces evidence that establishes that he or she 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, then, subject to the court not finding that the opinion is irrational, that practice establishes the standard of care, conformity with which by the defendant will mean he or she “does not incur a liability in negligence”. That should be so even in cases where the judge is of the opinion that a different or higher standard, of which the defendant fell short, should obtain.

9. [110]

   This approach was recently endorsed in Sparks v Hobson (2018) 361 ALR 115; [2018] NSWCA 29 and South West Sydney Local Health District v Gould (2018) 97 NSWLR 513; [2018] NSWCA 69. In Sparks, Basten JA said this:

10. [111]

    His Honour then concluded:

11. [112]

    Wagga Wagga Base Hospital submitted that this clarification supports its reasoning to the effect that s 5O evidence, if accepted, establishes the standard of care, and leaves no room for the different test, under s 5B, applying Rogers v Whitaker.

12. [113]

    The approach was reiterated and endorsed in Gould, where Leeming JA, cited Giles JA’s decision in Dobler:

13. [114]

    Paragraphs 85 and 85A of the defence to the second further amended statement of claim plead a reliance on s 5O of the Act. It is instructive to note these paragraphs here:

14. [115]

    The significant and over-arching allegation pleaded against the defendant is the failure to transfer Ms Coffey to the Canberra Hospital prior to James’ delivery. The defendant maintains that in the circumstances of this case, the decision not to transfer, as well as the treatment provided while still at Wagga Wagga Base Hospital and following delivery, conformed to competent professional practice. Several opinions were expressed by experts in different fields of specialty concerning the question of whether or not the treatment provided to Ms Coffey and her foetus and later to her newborn son was in accordance with competent professional practice at the relevant time. These opinions were expressed both with respect to the overriding decision concerning the transfer of Ms Coffey to a tertiary hospital such as Canberra Hospital as well as with respect to the discrete individual questions such as the administration of steroids or the quality of neonatal intubation and resuscitation. Plainly the views expressed on the general issue of transfer will not necessarily accommodate the views expressed about the particular issue of care or treatment. To the extent, therefore, that the defendant has raised the existence of an accepted professional practice in existence at the time with which the Wagga Wagga Base Hospital complied, attention always needs to be given to the precise practice that is being considered.

15. [116]

    That somewhat uncontroversial proposition was given recognition in Sparks, as the following paragraphs from the judgment of Basten JA make clear:

16. [117]

    As indicated earlier, the predominant setting or context for all of the allegations raised against the Wagga Wagga Base Hospital is the decision not to transfer Ms Coffey to a tertiary facility. As will shortly be explained, the other alleged deficiencies appear in my opinion ultimately to assume only subsidiary significance or merge in the wisdom or otherwise of the decision to continue to treat Ms Coffey in Wagga Wagga.

17. [118]

    The defendant relied on the following evidence to support the existence of compliance with accepted competent professional practice at the time.

18. [119]

    Dr Robert Lyneham prepared a report dated 14 November 2011. Dealing specifically with the failure to transfer Ms Coffey to a tertiary hospital once contractions commenced on 4 January 2004, he said this:

19. [120]

    Dr Lyneham’s conclusion was stated thus:

20. [121]

    With particular reference to the question of transfer to a tertiary hospital, Dr Lyneham’s evidence was that “at no time during the admission on 4–10 January was Ms Coffey’s clinical condition consistent with a diagnosis of preterm labour”. Nor in his view was there any “indication to transfer, and no indication to contact Canberra Hospital staff”. Dr Lyneham said that he was “unaware of any policies or guidelines from 2004, or now, which recommend or advise transfer to a tertiary centre of a woman who is not in threatened or actual preterm labour but rather experiencing a few contractions a day, and with no history of spontaneous labour before 32 weeks”. Dr Lyneham also said this:

21. [122]

    With respect to the NSW Health Circular 99/71 entitled “Policy for Emergency Obstetric and Neonatal Referrals”, Dr Lyneham said this:

22. [123]

    Dr Lyneham was not challenged on these opinions.

23. [124]

    Dr Andrew Child provided his report on 28 November 2011. He said that “the antenatal care provided at the clinic at Wagga Wagga Base Hospital was in accordance with acceptable practice at that time for a complicated pregnancy such as this one”. In answer to the question concerning transfer, he said this:

24. [125]

    Dr Child expressed his conclusions in the following relevant terms:

25. [126]

    Dr Child was asked to provide a written opinion on the following question:

26. [127]

    Dr Child answered this as follows:

27. [128]

    Specifically with reference to the issue of transfer, Dr Child said that “there were no clear indications to transfer this mother at the time of her admission…from 4 to 10 January or at the time of consultation on 14 January particularly as the labour did not in fact start until 19 January”. He agreed with Dr Lyneham that Ms Coffey’s treatment on discharge on 10 January 2004 “was entirely appropriate” and that “there was no necessity for transfer to a tertiary hospital” between 4 and 10 January or on 14 January 2004. Dr Child said that he could “not see any clinical evidence to suggest that she should have been transferred to Canberra Hospital” on 14 January 2004 and that “it was reasonable to advise her to return to the clinic in two weeks time with the proviso that she return urgently to the hospital if any symptoms were causing her concern”.

28. [129]

    Dr Child was not cross-examined on these opinions.

29. [130]

    A/Prof Nick Evans provided a report dated 9 October 2013. With respect to the issue of antenatal transfer to a tertiary centre, he said this:

30. [131]

    Dr Evans’ conclusion was expressed in these terms:

31. [132]

    Dr Ian Barraclough was qualified as an expert by Ms Coffey. He provided a report dated 4 July 2006 to her solicitors Messrs Commins Hendriks. Dr Barraclough proceeded in some considerable detail to outline Ms Coffey’s obstetric history and her presentation and treatment at the Wagga Wagga Base Hospital in January 2004. He described it in these terms:

32. [133]

    Professor Paul Colditz provided a report to Ms Coffey’s solicitors dated 10 October 2005. Dr Colditz was then the Director of the University of Queensland Perinatal Research Centre. He records that he was asked to report in relation to the care afforded to Ms Coffey by the Wagga Wagga Base Hospital and to comment upon whether an earlier examination would have benefited her and James and whether attendance by a paediatrician would also have been warranted. Dr Colditz was also asked to comment upon the incidence of cranial bleeds and to offer an opinion upon whether in James’ case they were due to prematurity because of the rapid birth or because of any problem with James’ resuscitation. Dr Colditz’ report included the following:

33. [134]

    Dr Colditz earlier commented that “the care provided was within standard practice.”

34. [135]

    Dr John Currie worked as a specialist obstetrician and gynaecologist at Wagga Wagga Base Hospital in January 2004 and was involved in Ms Coffey’s care. He provided a statement in which he said that it was his assessment that she did not require a transfer to a tertiary hospital on 4 January 2004. He gave evidence and was not challenged on that opinion. He said that he would have done so if he had been concerned. So far as concerns Ms Coffey’s condition at the antenatal clinic on 14 January 2004, Dr Currie gave the following unchallenged evidence:

35. [136]

    Dr Ian Stewart was a part-time staff specialist obstetrician and gynaecologist at the Wagga Wagga Base Hospital in 2004. He provided statements and gave evidence in the proceedings. He was not cross-examined upon the following evidence:

36. [137]

    Dr Michael Bunting is currently a specialist gynaecological oncologist. He commenced as a Registrar at the Wagga Wagga Base Hospital in February 2004 and had previously been a resident medical officer at the hospital in January 2004 when Ms Coffey came under his care. He provided a statement dated 11 August 2015. Paragraph 49 and 64 were as follows:

37. [138]

    Dr Bunting was cross-examined in the following terms:

38. [139]

    Dr Bunting was of the view that Ms Coffey was not at any time in preterm or premature labour. He specifically said in his cross-examination that “we had no evidence and none during the entire admission that she was in premature labour”. However, he acknowledged that she was a high risk obstetric patient, as his following answers make plain:

39. [140]

    Although Dr Bunting was cross-examined at some length, it was not suggested to him that the opinions he expressed in paragraphs 49 or 64 of his statement were incorrect or not in accordance with widely accepted practice at the time or that they were irrational.

40. [141]

    Dr Andrea Follett currently works as a general practitioner in Hobart. In January 2004 she was working under a number of visiting medical officer obstetricians and gynaecologists at Wagga Wagga Base Hospital. She provided a statement dated 10 June 2015. Paragraph 33 of that statement is in the following terms:

41. [142]

    Dr Follett was cross-examined about paragraph 33 of her statement. However, it was not put to her that her views that Ms Coffey was not in premature labour or that her labour was not impending were not honestly held, or that they were incorrect or irrational.

42. [143]

    A/Prof Bryce gave evidence concurrently with Drs Child, Lyneham and Lynch. Part of his evidence was as follows:

43. [144]

    A/Prof Bryce had earlier given evidence of his opinion of the quantification of the risk that Ms Coffey might deliver prematurely:

44. [145]

    As the Wagga Wagga Base Hospital’s submissions emphasise, not only did Drs Child and Lyneham disagree with that assessment, putting the risk at closer to 10 percent, and “nowhere near 50 percent”, so too did the neonatologists, between whom the only disagreement was whether the risk of delivery before 32 weeks was five percent, as A/Prof Evans would have it, or 10 percent, as Dr McPhee believed. It was in this context that the defendant’s submission described A/Prof Bryce’s opinions about the state of Ms Coffey’s pregnancy and the need to transfer her to Canberra Hospital as “outlier” opinions. So far as concerned that issue, A/Prof Bryce was alone among the six obstetricians who expressed a view upon it in suggesting that an antenatal transfer to Canberra Hospital was indicated.

45. [146]

    In describing A/Prof Bryce’s position in that way, the Wagga Wagga Base Hospital made the following written submissions:

46. [147]

    In summary, the case for the Wagga Wagga Base Hospital on the transfer issue was that Ms Coffey’s high risk pregnancy did not as a matter of practice, policy or medical necessity, warrant her being removed to Canberra Hospital prior to 19 January 2004. As at 10 January 2004, the clinical finding, including the absence of contractions, the condition of her cervix, the fact that a possible urinary tract infection was being treated with antibiotics and the negative foetal fibronectin test, which A/Prof Bryce considered to be “a significant finding”, all indicated discharge home as a reasonable response. Ms Coffey was not in preterm labour prior to 19 January 2004. At no time between 4 and 10 January 2004 was Ms Coffey in threatened preterm labour. There were no material changes to her condition by 14 January 2004 and she was not then in threatened preterm labour. The only relevant difference between Wagga Wagga Base Hospital and Canberra Hospital was that the latter had a Neonatal Intensive Care Unit. The facilities were otherwise effectively identical.

47. [148]

    In Gould, Leeming JA said this:

48. [149]

    In the particular circumstances of this case, Ms Coffey did not plead that the Wagga Wagga Base Hospital did not act “in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice”. Ms Coffey’s submissions were to the following effect.

49. [150]

    Ms Coffey contended that it was “unsustainable” in the present case to argue that the failure to transfer her to Canberra was widely accepted in Australia by peer professional opinion as competent professional practice. She contended that the opinions of Drs Child and Lyneham were “clearly irrational” in relation to this particular pregnancy. That is said to be so because the opinions proceed on the basis that transfer need only have been considered once Ms Coffey went into labour, for which proposition Ms Coffey contended there was no evidence.

50. [151]

    Ms Coffey submitted further that s 5O seems “faintly” to have been called in aid of the management of the labour and subsequent delivery. She submitted that there could be no rational explanation for the failures relating to no vaginal examination, the birth taking place in the maternity ward, the absence of a paediatrician at the birth and an excessive period of cardiac massage. Finally, Ms Coffey submitted that there was a need to transfer her to Canberra because she was at the relevant time in threatened preterm labour.

51. [152]

    The Wagga Wagga Base Hospital responded as follows.

52. [153]

    Insofar as irrationality is raised in Ms Coffey’s submissions, the defendant contended that she should not be permitted to rely on s 5O(2) when raised for the first time in those submissions. The proposition appears to be that delaying delivery until 32 weeks gestation was irrational. The defendant contended that I should reject a submission that it was irrational for it to approach Ms Coffey’s antenatal management on the basis that delivery might be delayed until then because Dr Currie’s evidence does not suggest that such a belief would be irrational and that proposition was never put to any of the experts. Moreover, to the extent that Ms Coffey now wishes to contend that the defendant’s expert evidence as to peer professional practice is irrational, it would be procedurally unfair to receive or to consider such a submission having regard to the fact that it has never been pleaded or supported by opposing expert evidence: see Gould at [68]–[75].

53. [154]

    The defendant maintained that it conducted its defence on the basis that the rationality of the expert opinions it relied on was not in issue. Ms Coffey was given leave during the trial to file a reply, yet even then raised no issue as to s 5O(2).

54. [155]

    Further, the defendant submitted in any event that it is a mischaracterisation of the evidence of Drs Child and Lyneham to suggest that they stated that transfer need only have been considered once Kathleen Coffey went into labour.

55. [156]

    With respect to the scope of the widely accepted practice contended for, the defendant submitted that, far from "faintly" suggesting that it extended to the events of 19 January 2004, the defendant specifically relies on s 5O in defence of its management of the labour and delivery on that date. In short, there was no vaginal examination and the delivery occurred in the maternity ward because in Ms Coffey's circumstances, it was difficult to palpate contractions and determine whether she was actually in established labour.

56. [157]

    The defendant submitted that Ms Coffey’s submission that she was in threatened preterm labour and should have been transferred or advised as to transfer after her 4 January 2004 presentation goes to the heart of her case. The defendant contended that that proposition should be rejected.

57. [158]

    It was A/Prof Bryce's opinion that, even absent contractions or any indication of threatened preterm labour, Ms Coffey should have been transferred to Canberra at 26 weeks' gestation and remained there until 32 weeks' gestation. In effect, he relied solely on her obstetric history, which included no spontaneous delivery before 32 weeks.

58. [159]

    The defendant did not dispute that on Ms Coffey's admission to Wagga Wagga Base Hospital on 4 January 2004, the working diagnosis was threatened premature labour or that under Dr Currie's guidance she was initially managed on the basis of such a diagnosis.

59. [160]

    Dr Lyneham quoted a specific definition of threatened preterm labour contained in a 2011 NSW Health Policy Directive, being "uterine contractions that are painful, palpable, last more than 30 seconds and occur with a frequency of at least 2 every 10 minutes …".

60. [161]

    He explained that in 2004, clinicians generally regarded threatened preterm labour as comprising the features contained in the Policy Directive definition and indicated that accordingly, Ms Coffey was neither in preterm labour nor threatened preterm labour. Dr Lyneham was not challenged on that evidence in cross-examination.

61. [162]

    A/Prof Bryce proposed a different definition for threatened preterm labour:

62. [163]

    Beyond the lack of any source or reference for that definition and the fact A/Prof Bryce seemed to be speaking of a 2018 definition, Ms Coffey did not in fact meet A/Prof Bryce's own definition of preterm labour during the period in which on his view the determination whether transfer was appropriate should have occurred following the 4 January 2004 admission.

63. [164]

    A/Prof Bryce also stated that after Ms Coffey's presentation at 1930 hours on 4 January 2004, she needed to be observed for a minimum of 4 hours, and up to 24 hours, before making any decision as to transfer. That was to avoid delivery occurring while she was en route to Canberra. Importantly, in the initial nursing entry after presentation, Ms Coffey’s contractions were recorded as previously being 20 minutely and then being 10 minutely, lasting 30 seconds. The pattern was then of contractions decreasing in frequency and regularity, with them being described as "irregular" at 2120 hours, with one in the last 45 minutes and then one contraction having occurred at 0130 hours since 2130 hours. After the 0130 hours contraction, none was recorded at all on 5 January 2004.

64. [165]

    The defendant therefore emphasised that during the very period when Ms Coffey should on her case have been considered for transfer, she did not even meet A/Prof Bryce's undemanding definition of threatened preterm labour, let alone the NSW Health definition, cited by Dr Lyneham. On any view, she was not in threatened preterm labour, let alone actual preterm labour. Her contractions were infrequent and irregular. According to the defendant, the expert evidence justified a watch and wait approach, rather than bringing about transfer or providing Ms Coffey with advice to the effect that she should be transferred. The position was the same upon her discharge on 14 January 2004.

65. [166]

    In my opinion, the evidence led by the hospital with respect to the s 5O issue ultimately spoke with one voice. There was no evidence from Ms Coffey to the contrary.

66. [167]

    The standard with which the Wagga Wagga Base Hospital was required to comply was the standard described by the experts as one that was widely accepted in Australia by peer professional opinion as competent professional practice. Those experts established the standard of care for the purposes of this litigation. That standard was met by the hospital. The hospital does not incur a liability in negligence either to Ms Coffey or James Coffey. That is so in my opinion having regard to the whole of the evidence, both with respect to the allegation of a failure to transfer Ms Coffey to Canberra Hospital before James was born as well as with respect to the individual allegations of want of proper care at Wagga Wagga Base Hospital leading up to the time of his delivery and immediately thereafter.

67. [168]

    Importantly, it is not in my view open to Ms Coffey lately to contend that the opinions on which the s 5O contentions are based do not extend to the events of 19 January 2004. It was never put by counsel for Ms Coffey to a single witness in the proceedings on either side of the debate that the opinions expressed by them concerning widely accepted practice were wrong or that the practice identified was irrational or that they had not, in expressing their respective opinions, intended to include in their assessment the events that occurred on 19 January 2004. Even if the scope of the practice relied on by the defendant and particularised in paragraph 85 of the defence to the second further amended statement of claim on one view did not in terms extend so far, it seems apparent that the opinions concerning the relevant practice were intended to incorporate the events of that day. For example, Dr Child’s answer to the question directed at precisely that paragraph spoke of the fact that the hospital serviced a high population of pregnant mothers and provided level 5 care as well as training for junior obstetrics medical staff and midwives. At no point in the course of the trial was it ever pleaded or suggested to the experts or raised in any way at all before the evidence had concluded that the experts were constraining or limiting their views about widely accepted practice to the point when Ms Coffey was discharged on 14 January 2004 with advice to return if necessary but not beyond. Moreover, there was no evidence to the contrary called by Ms Coffey, her principal attack being the unsupported contention that the opinions were irrational.

Further consideration

1. [169]

   It becomes strictly unnecessary in these circumstances to consider the separately pleaded individual allegations of breach of duty by the hospital. However, despite my earlier conclusion about Ms Coffey’s contention that the evidence of a widely accepted peer professional practice with which the hospital complied did not extend to include the events of 19 January 2004 and in particular the care and treatment of James from the moment of his birth should be rejected, it is prudent that some further examination of that contention should be undertaken. In particular, it is appropriate to consider at least the evidence of the neonatologists concerning that treatment in the brief period that James was at the Wagga Wagga Base Hospital on 19 January 2004.

2. [170]

   In their joint report following the experts’ conclave, A/Prof Evans and Dr McPhee expressed a number of opinions in answer to a series of questions on notice. It is instructive to record some of those here, as follows:

3. [171]

   At the point at which A/Prof Evans and Dr McPhee were about to give evidence in joint session, the following interchange between me and Mr Bartley SC occurred:

4. [172]

   The cross-examination of A/Prof Evans and Dr McPhee proceeded for a while without to my perception any attempt being made to suggest that the hospital made a mistake. So much is probably apparent from my comments at the time in the course of the following exchange:

5. [173]

   The following passage of evidence then ensued:

6. [174]

   At this point, Mr Bartley proceeded to ask a series of questions based upon assumptions that were never agreed between the parties. I allowed these questions over objection as a matter of convenience, with a view to determining their admissibility later.

7. [175]

   In my assessment of the evidence that followed, despite this exchange, with one exception, no attempt was made by Mr Bartley to suggest to either A/Prof Evans or Dr McPhee that the Wagga Wagga Base Hospital in fact failed to meet an appropriate standard of care on 19 January 2004. That material is as follows:

8. [176]

   Three things can be said about these questions and answers. First, the assumptions have not otherwise been proved and are not supported by the evidence. Secondly, they do not accord with the Agreed Facts. Thirdly, they elicit a response from Dr McPhee directed to the elevated risk of intraventricular haemorrhage, and do not deal with or elucidate the issue of breach of duty on 19 January 2004 or whether the hospital failed to conform to accepted practice on that day.

9. [177]

   As the joint report of A/Prof Evans and Dr McPhee makes clear, neither practitioner was critical of the conduct of the Wagga Wagga Base Hospital with respect to James’ delivery. Cross-examination of these doctors with a view to extracting answers or concessions that limited or restricted the force of their joint report were either directed to different issues or were not successful. It becomes in such circumstances difficult to make sense of a submission that the hospital breached its duty concerning the events of 19 January 2004 in any of the ways contended for by Ms Coffey. I remain in any event of the view that the hospital’s performance on 19 January 2004 is properly to be assessed by reference to the evidence of the experts in relation to s 5O of the Act.

The Limitation Act defence

1. [178]

   The proceedings were commenced by statement of claim filed 31 March 2011, some 7 years and 2 months after the events giving rise to the cause of action. The hospital has pleaded that the proceedings are not maintainable as they were commenced more than three years after the date upon which the cause of action was discoverable pursuant to section 50C and 50D of the Limitation Act.

2. [179]

   James Coffey’s reply filed 7 November 2018 contends that the action was not discoverable pursuant to ss 50C and 50D until 21 March 2011. James Coffey further pleads that his tutor Ms Coffey was at all material times up to and before 31 March 2011 under a disability pursuant to s 50F of the Limitation Act.

3. [180]

   That Act provides relevantly as follows:

4. [181]

   In the present case, Ms Coffey saw her solicitor Mr Potter within a couple of months of James' birth, on 3 March 2004. She wished to investigate the cause of the damage that her son had sustained. She provided a statement to Mr Potter and continued to talk to her solicitor regarding the merits of a claim against the hospital. That contact continued in each of the years following 2004.

5. [182]

   Ms Coffey was told by Mr Potter that there was a time limit for bringing the claim, although she was not sure, at the trial, whether she was told of a three year limitation period. Mr Potter was aware at the first conference that, subject to any discoverability issues, time would expire in January 2007. He told Ms Coffey that it would be necessary to obtain expert opinion as to breach and causation.

6. [183]

   Mr Ingram of counsel was briefed by 8 March 2005. An unfavourable report was obtained from Professor Colditz on 10 October 2005. A similarly unfavourable report was obtained from Dr Barraclough on 4 July 2006. Mr Potter concluded in the circumstances that there was no point pursuing the matter. He said that he believed he would have told Ms Coffey that in conference with her in July 2006.

7. [184]

   There is no evidence of any activity on the matter, by either Ms Coffey or her solicitor, after July 2006 until the events of 18 May 2010. On that day, according to Mr Potter, but denied by Ms Coffey, she instructed him to close the file. Those instructions were given by telephone. The file was closed and archived that day. Mr Potter said he would not have closed the file without instructions, and he would have discussed the merits of the case with Ms Coffey in May 2010 before obtaining those instructions.

8. [185]

   Mr Potter recommenced the search for an expert on 15 February 2011 when requested to do so by Ms Coffey, a request that was motivated, as he perceived it, by the difficulty she was having looking after and managing James, and the distress that that was causing her.

9. [186]

   On 21 March 2011, Mr Potter conferred with Professor Fliegner, an obstetrician in Melbourne, and formed the view that there was an arguable case. He filed a statement of claim on 31 March 2011.

10. [187]

    Resolution of the disagreement between Mr Potter and Ms Coffey concerning whether she instructed him to close the file requires reference to their evidence.

11. [188]

    Ms Coffey gave the following evidence:

12. [189]

    Mr Potter swore an affidavit on 7 November 2018 and was cross-examined upon it at some length, as the following portion of the transcript reveals:

13. [190]

    The hospital contended that any conflict in this evidence between Ms Coffey and Mr Potter concerning the question of whether he was instructed to close the file should be resolved by preferring Mr Potter's evidence. According to this submission, it accorded with logic and professional practice that a solicitor would not have closed or archived the file without instructions to do so. Although Ms Coffey ultimately denied that she instructed Mr Potter to do so, her initial response was to say that she did not remember.

14. [191]

    The hospital maintained that it was significant that, on Mr Potter's evidence, within less than three weeks of being asked by Ms Coffey to re-activate the search for expert evidence, and with no material bearing on the facts additional to that which he had held since soon after his first conference with her, Mr Potter located and conferred with Professor Fliegner, on the basis of whose opinion Mr Potter concluded there was an arguable case. It follows, as a matter of logic, that the same enquiries made at any time prior to January 2007, including during the “dormant period” following July 2006, would likely have produced a similar result, yet there is no explanation proffered as to what transpired during that dormant period. The inadequacy of the explanation might reflect the incomplete nature of Mr Potter's search of his files, a task he delegated to others.

15. [192]

    The hospital drew attention to two authorities said to establish that for the purposes of the discoverability provisions in s 50D, a plaintiff may fall into the category of persons who had the necessary constructive knowledge notwithstanding having been advised by lawyers on the basis of expert evidence that she did not have a cause of action.

16. [193]

    In Baker-Morrison v State of New South Wales (2009) 74 NSWLR 454; [2009] NSWCA 35; Basten JA (with the agreement of Ipp and Macfarlan JJA) said:

17. [194]

    In Frizelle v Bauer [2009] NSWCA 239, Basten JA (McColl JA agreeing) held:

18. [195]

    The hospital maintained that these extracts can be contrasted with the situation here, where the mere step of asking Mr Potter to resume the search was sufficient to have allowed Professor Fliegner to be retained within less than three weeks. The steps that Ms Coffey should reasonably have taken then, which she did not take until 2011, was to have continued to press, during the dormant years, for expert evidence to be sourced, rather than doing nothing for four years until instructing Mr Potter to close the file.

19. [196]

    The hospital therefore submitted that for the purposes of s 50D, Ms Coffey is one who "ought to know" of the facts that informed the decision to commence the proceedings (i.e. the availability of expert evidence sufficiently corroborative to provide an arguable case), because the Fliegner opinion would, within the meaning of s 50D(2), "have been ascertained by the person had the person taken all reasonable steps before that time to ascertain the fact." On any view, Ms Coffey ought to have known of that fact at a time prior to 31 March 2008 (i.e. that date 3 years before she commenced) and, for the purpose of s 50D, the cause of action was discoverable before 31 March 2008.

20. [197]

    Ms Coffey in any event contends that she was relevantly under a disability. The onus lies on her to demonstrate that she was under a disability for the purposes of s 50F: New South Wales v Harlum [2007] NSWCA 120 at [73]; Kotulski v Attard [1981] 1 NSWLR 115 at 118D; Mulcahy v Curramore Pty Ltd [1974] 2 NSWLR 464 at 478.

21. [198]

    The applicable case law has focused on when a person is under disability as contained within s 11(3)(b) of the Act, which predominantly mirrors s 50F(2). In Kotulski v Attard, Slattery J said at 117F-118B:

22. [199]

    The Court of Appeal in New South Wales v Harlum applied Kotulski, with Beazley JA (Tobias JA in agreement) specifying at [92] that the enquiry is directed to determining whether the person claiming to be under the relevant disability is able to reason normally about the matters relevant to a potential cause of action, to understand and consider advice, and to give instructions about any action.

23. [200]

    In Guthrie v Spence (2009) 78 NSWLR 225; [2009] NSWCA 369, the Court of Appeal from [125] to [168] assessed s 11(3)(b) in detail. Campbell JA emphasised at [141] that the sole concern of the Act is with the time within which an action must be commenced, as opposed to a party becoming substantially impeded after the action had been commenced. At [140] Campbell JA explains what “management of affairs” means in the context of the Act:

24. [201]

    His Honour then restated the applicable test in Kotulski and Harlum:

25. [202]

    The hospital submits that Ms Coffey was not substantially impeded in the management of her affairs in relation to the cause of action by reason of any disease or impairment of her physical or mental condition. It submitted that Ms Coffey had not discharged her onus of establishing that she was under a disability for the purposes of s 50F of the Act. Her evidentiary statements barely touch upon her mental state, still less do they satisfy the requirements of the section as construed. The majority of Ms Coffey's statements concern events surrounding the birth of James, rather than any disability or mental illness she may have suffered.

26. [203]

    Similarly, Mr Potter's affidavit does not refer to any disability or inability of Ms Coffey to give instructions or otherwise manage her affairs in relation to the cause of action. On the contrary, the affidavit bears out that she was able to give sufficient instructions for him to record some 10 pages of conference notes.

27. [204]

    The evidence demonstrates that in many areas of Ms Coffey's life, she was able to manage her affairs without any substantial impairment. Ms Coffey makes clear in her statement at [50] and [58] that she has and continues to provide 1-2 hours per day of additional educational assistance to James after school and provides constant supervision for him when he is at home. Ms Coffey's oral evidence confirms that she has always been his primary carer. When James was transferred back to the hospital from Canberra, Ms Coffey continued to travel between the hospital, her children's school and home on a daily basis, with minimal or no assistance from her husband.

28. [205]

    Ms Coffey was primarily responsible for managing the domestic affairs of not only her own life, but that of her four children and household. As Campbell JA noted at [178] in Guthrie v Spence, if a person is able to manage his or her affairs in relation to numerous and diverse areas of their life, a good explanation would be called for before one accepted that that person was not able to manage their affairs in relation to some different area of their life. No such explanation has been provided by Ms Coffey in this case.

29. [206]

    Further, the evidence also appears to indicate that Ms Coffey was under no substantial impairment in managing the prosecution of the cause of action itself. For example, Mr Potter refers in his affidavit to her several attendances upon him and with counsel.

30. [207]

    Additionally, Ms Coffey was sufficiently in control of her affairs to be able, according to Mr Potter, to instruct him to close the file on 18 May 2010, after they discussed the merits of the case that month.

31. [208]

    Nor do Dr Gertler's reports of 22 November 2011, 18 March 2014 and 21 July 2017 provide a basis for a finding that Ms Coffey was substantially impeded in managing any of her affairs in relation to the cause of action. Dr Gertler noted that Ms Coffey has been taking antidepressants since her third child (Caitlyn) was born in 2001. That history is consistent with her oral evidence, although Mr Coffey recalled that his wife had been taking antidepressants since August 1998, following the birth of Brianna. Ms Coffey gave evidence that the antidepressants alleviated the symptoms of her depression.

32. [209]

    Despite Ms Coffey giving oral evidence that her mental state "now" is an "eight to a nine", Dr Gertler determined that there was no evidence that she suffered from significant depression or anxiety, and that her capacity for "insight" and "judgment" was appropriate. Overall, Dr Gertler concluded in his report that Ms Coffey was "mildly depressed" and suffering from an adjustment disorder that was chronic in duration. Dr Gertler noted in his report that this had had an impact on her "capacity to tolerate her day to day responsibilities, particularly as they relate to the care of her children and husband" but he did not provide any further details. The use of the word “tolerate”, appears to indicate that Dr Gertler was of the view that Ms Coffey was unhappy with her day-to-day responsibilities, as opposed to being unable to manage or carry them out.

33. [210]

    In Dr Gertler's 18 March 2014 report, he expressed the opinion that Ms Coffey was "mildly irritable but not significantly depressed". He concluded that she continued to suffer from an "adjustment disorder with mixed emotional features". In his 21 July 2017 report, Dr Gertler indicated that Ms Coffey described "normal concentration and memory" and "a fluctuating level of depression". He concluded that "there was no evidence of significant depression at the time of assessment".

34. [211]

    In their joint report of 27 October 2017, Drs Gertler and Wilcox reached broad agreement about the nature and severity of Ms Coffey's mental illness. Dr Gertler stated that she suffered from an adjustment disorder with anxious and depressed mood which fluctuated in intensity but was generally mild. He found (and Dr Wilcox agreed) that it had never been severe enough to warrant domestic assistance, nor had it affected her capacity for work at any time after 19 January 2004.

35. [212]

    No evidence has been adduced to indicate that Ms Coffey suffered from any disease or impairment so as substantially to impede or make her incapable of managing her affairs in relation to the cause of action. The evidence does not support a finding that Ms Coffey has been under a disability at any time since 19 January 2004 for the purposes of s 50F of the Act.

36. [213]

    Ms Coffey drew attention to the same provisions of the Limitation Act to which the hospital referred.

37. [214]

    The definition of “under a disability” is also found in s 11(3)(b). The definition was definitively discussed in State of New South Wales v Harlum. The headnote in relation to this issue contains the following:

38. [215]

    The facts in Kotulski were similar to those in the present case. The uncontested evidence given by Mr Coffey as to his wife’s ability to cope with James’ substantial disabilities was uncontested and comfortably forms the foundation for a finding that Ms Coffey was “under a disability” at least up to the time when she gave instructions to commence the proceedings.

39. [216]

    Further, s 50D provides strong support for the cause of action not being “discoverable” at any time up to when the action was commenced.

40. [217]

    The decision of the Court of Appeal in Baker-Morrison v State of New South Wales is definitive in relation to the issue of discoverability and in particular, “the meaning of caused by default of the defendant”.

41. [218]

    To the extent that Mr Potter was cross-examined in relation to the steps he took to pursue the question of liability, this is irrelevant. The “reasonable steps” relate not to the solicitor but to Ms Coffey. It could not be said that she failed to take reasonable steps. The headnote to that report confirms that:

42. [219]

    Not only had Ms Coffey taken “reasonable steps”, she had received advice to the effect that as at the date of the expiration of the limitation period there was insufficient expert evidence available to support the commencement of proceedings. This advice was based upon the report of Professor Colditz dated 10 October 2005 and the report of Dr Barraclough dated 4 July 2006.

43. [220]

    It is clear that no further steps were taken in relation to obtaining an expert liability report until following the conference between Mr Potter and Ms Coffey on 15 February 2011: see paragraph 13 of Mr Potter’s affidavit. It is also clear that Ms Coffey was unaware of the relationship between the injury and the fault of the hospital until she was informed of the views expressed by Professor Fliegner in the conference with Mr Potter on 21 March 2011 at which time instructions were provided to file a statement of claim: see paragraph 20 of Mr Potter’s affidavit.

44. [221]

    The statement of claim which was dated 29 March 2011 was filed on 31 March 2011. Thus, the Limitation Act has no application to the present case both because of discoverability and the fact that Ms Coffey was under a relevant disability.

45. [222]

    Kotulski directs attention to the ability to reason normally about the matters relevant to a potential cause of action. The hospital emphasised that that is very different to Ms Coffey's ability to cope with the day to day manifestations of her son’s disabilities. Brian Coffey's evidence is of little or no relevance to the enquiry whether his wife was under a disability.

Limitation Act defence - consideration

1. [223]

   Mr Potter told Ms Coffey on 3 March 2004 that it would be necessary to get expert opinion on whether the hospital was at fault and whether that fault caused James to be injured. A report from Professor Colditz was obtained and Mr Potter discussed it with Ms Coffey in conference on 15 November 2005. The report did not assist Ms Coffey’s case and Mr Potter told her so.

2. [224]

   Similarly, Dr Barraclough provided a report to Mr Potter in July 2006. Mr Potter formed the view that it was not sufficient to recommend the commencement of proceedings. I infer that Mr Potter shared his view to that effect with Ms Coffey: Mr Potter said in cross-examination that he had no record of telling Ms Coffey about that report when he conferred with her in July 2006 but said that he believed that he would have.

3. [225]

   The suggestion that Ms Coffey was unaware of the relationship between the injury sustained by her son and the fault of the hospital until she was informed of the views expressed by Professor Fliegner in the conference with Mr Potter on 21 March 2011 in my view either misunderstands the applicable test or is not supported by the evidence. The issue is one of discoverability, not discovery in fact. The terms of s 50D of the Act make this clear. The fact that Ms Coffey did not “discover” Professor Fliegner’s opinion until within a three year period before she commenced these proceedings ignores the significance of what she should have discovered and when she should have discovered it. All the steps that were taken and everything that occurred that led to the provision of Professor Fliegner’s opinion could correspondingly have been taken or could have occurred well before the period of three years prior to the commencement of the proceedings. It is not open to Ms Coffey in this context to argue that the fact that a supportive opinion was only provided when it was, means that the same or an equivalent opinion was not always relevantly discoverable. It would be different, for example, if some novel medical test or diagnostic process had only been developed or come to her attention within three years of the date of commencement of the proceedings. The circumstances in which Professor Fliegner’s opinion was obtained are not analogous to that example.

4. [226]

   It is plain and I am satisfied that Ms Coffey sought Mr Potter’s advice, opinion and assistance because she was aware of the possible connection between what afflicted her son and some act or neglect on the part of the hospital. In the events that occurred, Ms Coffey could in one sense never have discovered a connection between the injuries sustained by James and the fault of the hospital, having regard to my finding that the hospital was not ever at fault. The fault of the hospital must therefore be relevantly understood to be the existence and availability of an opinion that the relevant connection existed and that the hospital was at fault. There was nothing to prevent Ms Coffey having earlier discovered what she did discover in 2011. It is clear that she retained Mr Potter for precisely that purpose and that he undertook to search for the connection in accordance with his instructions. In the terms of the section, Ms Coffey ought to have discovered before 31 March 2008 what she did discover when Professor Fliegner’s report arrived. Having regard to the fact that Ms Coffey consulted Mr Potter almost immediately after James’ birth, and in the events that occurred, it is my opinion that she should have discovered all of the matters to which s 50D(1) refers by no later than three years thereafter. The fact that Ms Coffey discovered the connection when she did, in circumstances that were in all relevant respects identical to those existing long before that date, indicates that she ought to have discovered the relevant facts more than three years before the filing of her statement of claim and probably in fact no later than three years after the events that gave rise to these proceedings.

5. [227]

   Nor am I satisfied that the limitation period was suspended for the reason that James Coffey was under a disability in the sense that Ms Coffey was an incapable parent for the purposes of s 50F(2)(a) of the Act. Ms Coffey was undoubtedly confronted with the awful difficulties associated with James’ disabilities. Those difficulties were no doubt made even worse to deal with by reason of her family situation as it existed at the time of his birth. However, despite these things, Ms Coffey was commendably able to see Mr Potter with her story, to instruct him about what had happened and to arm him with the material information that he needed to make the necessary inquiries on her behalf. That is what occurred. Ms Coffey demonstrably was able to reason normally about the matters relevant to a potential cause of action, to understand Mr Potter’s advice and to give appropriate instructions. In this respect I am also satisfied that Ms Coffey specifically instructed Mr Potter to close her file and that he did so in accordance with those instructions. I accept that dealing with the fact that her son had possibly been injured by the hospital would have been a terrible and frightening thing with which to come to terms. I am not satisfied that the effect of that realisation or appreciation substantially impeded Ms Coffey’s management of the relevant affairs.

Conclusions and orders

1. [228]

   It follows that there should in each case be judgment for the defendant. I will hear the parties if so required with respect to the question of costs.