The peer professional defence in the Civil Liability Act 2005 (NSW) operated to excuse a hospital from liability for its management and treatment of a patient with a history of complications during pregnancy and childbirth.
- Whether the hospital acted in a manner that was widely accepted by peer professional opinion as competent professional practice when deciding not to transfer the plaintiff to a tertiary hospital on presentation with signs of early labour.
- Whether the plaintiff’s claim was statute barred
James Coffey was born at the Wagga Wagga Base Hospital (Hospital) on 19 January 2004. At that time his mother, Kathleen Coffey, had been pregnant for only 27 weeks and 2 days. Ms Coffey had attended the Hospital in the days leading up to 19 January for treatment and review of 'contraction-like pains'. James allegedly sustained either a grade 3 or a grade 2 intraventricular haemorrhage during his mother’s treatment and his delivery which contributed to or caused his neuro-developmental impairment. James was Ms Coffey’s fourth pregnancy. Each of her three previous pregnancies resulted in early deliveries, only one prior to 27 weeks, which was an elective (not spontaneous) delivery due to problems associated with pre-eclampsia. In addition, Ms Coffey was clinically obese and suffered from numerous conditions including depression. Her pregnancy with James was classified by the Hospital as 'high-risk'.
Approximately 7 years and 2 months after the events giving rise to the cause of action, James and his mother commenced proceedings against the Hospital in negligence.
The statement of claim alleged that James’ prospects of a satisfactory perinatal outcome were significantly diminished by the Hospital’s failings in a number of different respects. In particular it was alleged that from approximately 6am on 5 January 2004, when Ms Coffey was admitted to the Hospital with suspected contractions, it should have been apparent that she was likely to deliver before 32 weeks and she should have been referred to a tertiary facility for management well in advance of her confinement and his delivery. It was alleged that the 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 - essentially the harm which James suffered 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 Decision at Trial
The Court observed that it is now established that in cases where a defendant raises the peer professional defence in s5O CLA, evidence of peer professional opinion as to competent professional practice, if accepted, establishes the standard of care to be applied. As a result, 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.
The significant and over-arching allegation pleaded against the Hospital was its failure to transfer Ms Coffey to the Canberra Hospital prior to James’ delivery. The Hospital maintained that in the circumstances, the decision not to transfer, as well as the treatment provided while still at the Hospital and following delivery, conformed to competent professional practice.
The Hospital’s expert evidence 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 (when Ms Coffey was discharged), the clinical findings, 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 Ms Coffey’s expert 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 (on outpatient review) and she was not then in threatened preterm labour. In the Court’s opinion, the evidence led by the Hospital with respect to the s5O issue ultimately was unanimous and there was no evidence to the contrary from Ms Coffey.
The standard with which the 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 the litigation. That standard was met by the Hospital. The Hospital therefore did not incur a liability in negligence either to Ms Coffey or James, either with respect to the allegation of a failure to transfer Ms Coffey to Canberra Hospital before James was born, or with respect to the individual allegations of want of proper care at the Hospital leading up to the time of his delivery and immediately after.
The Court then had to consider the Hospital’s further defence that the proceedings were statute barred as they were commenced more than three years after the date upon which the cause of action was discoverable pursuant to sections 50C and 50D of the Limitation Act 1969 (NSW) (LA). The Court noted that the issue was one of discoverability (of the connection between James’ condition and the Hospital’s actions), not discovery in fact. Given that Ms Coffey consulted a solicitor almost immediately after James’ birth, and the events that later occurred, it was the Court’s opinion that she should have discovered all of the matters to which s 50D(1) LA refers by no later than three years after. Ms Coffey argued that the limitation period was suspended because she was under a disability. This argument was rejected because the evidence established that Ms Coffey was able to manage her affairs and those of her household without any substantial impairment. The Court therefore concluded that the evidence did not support a finding that Ms Coffey had been under a disability at any time since James’ delivery on 19 January 2004.
Judgment was entered for the Hospital.
Implications for you
This case confirms that s5O CLA, not s5B CLA, sets the standard of care for professional defendants and that, provided the Court does not find that the opinion of peer professionals as to competent professional practice is irrational, conformity with that standard of care is an absolute defence to a claim in negligence. In relation to the limitation point, the case serves as a reminder that the relevant test is not whether a matter was in fact discovered by a plaintiff, but whether it was discoverable. In this case, Ms Coffey’s initial actions showed she was aware of the possibility of a connection between the Hospital’s actions and James’ condition but could not explain why she deferred her investigations into that connection, and the Hospital was consequently able to successfully argue that the limitation period had expired.