Allegations of medical negligence were made where a child developed infantile seizures and Global Development Delay. The question for determination by the court was whether the disabilities were caused by a failure to deliver the child earlier.
In issue
- The plaintiff was an infant born at the Royal Hospital for Women in Randwick on 2 April 2016. The plaintiff alleged the defendant was negligent in failing to deliver him earlier and that if it had done so he would, on the balance of probabilities, have avoided injuries, including infantile seizures and Global Development Delay.
- The defendant maintained it acted at all times in accordance with competent professional practice as contemplated by s5O of the Civil Liability Act 2002 (NSW). The defendant’s case was that the child was born with a congenital structural abnormality in the left hemisphere of his brain which manifested into a seizure disorder at five months old with subsequent Global Developmental Delay. The defendant maintained that this dysplasia was an in-utero development condition which explained the plaintiff’s condition, and that the plaintiff’s seizure activity was not the result of a perinatal hypoxic brain injury.
The background
The plaintiff’s mother, Ms Nemes had several miscarriages between 2006 and 2014.
Given the history of miscarriages, she consulted medical professionals and was allocated to the Midwifery Group Practice model at Royal Hospital for Women for management of her pregnancy with the plaintiff, her son, Benny.
On 29 March 2016, Ms Nemes attended the midwives’ clinic as she was in pain and had been feeling unwell. Following reassuring CTG and normal blood test results, she was discharged.
On 31 March 2016, Ms Nemes presented to the delivery suite following possible bradycardia in clinic. She was monitored but subsequently discharged.
After a spontaneous rupture of membranes at 1.40am on 1 April 2016 and the commencement of contractions at 4.00am, Ms Nemes presented to hospital.
During the remainder of her labour, the defendant assumed care of Ms Nemes. The plaintiff was ultimately born with assistance of forceps at 11.38 on 2 April 2016 in a poor state.
When the plaintiff was five months old, he was admitted to hospital and diagnosed with left sided brain malformation which evolved into an intractable seizure disorder and Global Development Delay.
The decision at trial
The issues for the court to determine were:
- Did the defendant breach its duty of care by not proceeding to deliver the plaintiff’s son earlier and was this causative of the plaintiff’s disabilities?
- Did the defendant breach its duty of care by not prescribing prophylactic antibiotics and was this causative of the plaintiff’s disabilities?
- Did the defendant breach its duty of care in the manner in which it augmented the mother’s labour with Syntocinon (the synthetic hormone oxytocin) and was this causative of the plaintiff’s disabilities?
- Should the defendant have conducted a foetal scalp test during labour?
- Did the defendant adequately examine the placenta, and should the defendant have retained it for investigation of the plaintiff’s condition?
The court found that the answer to all the above questions was no. In determining those questions, the court considered the expert medical opinion in the matter including the evidence given by the experts in conclave.
There were conflicting opinions on all issues from the conclave of medical experts, however, the court concluded that on the balance of probabilities the defendant acted in a manner which a wide body of professional peers would also have acted in the circumstances (Dean v Pope (2022) 110 NSWLR 398).
Judgment was given for the defendant, with the plaintiff ordered to pay the defendant’s costs.
Implications for you
This decision affirms that s5O of the Civil Liability Act 2002 (NSW) does not require the establishment of a universally accepted practice, nor does the expression of a different opinion negate the defendant’s ability to rely on the provision.
Whilst s5O emphasises the importance of widely accepted practice, it is acknowledged that the exercise of professional judgment by equally qualified professionals may legitimately lead to different approaches. Whilst some experts believed that an early delivery was required, the court was satisfied that the defendant practiced sound professional decision making given the circumstances and expedited the second stage of labour upon competent monitoring and interpretation of the CTG trace.
The court emphasised the importance of the neutrality of retained experts. The expert evidence that was ultimately accepted was evidence 'that was based on an impassioned but wholly distinterested view of facts', and 'even though [the expert] was advocating for a particular view, he was not at any stage…attempting to endorse a particular outcome in order to support the party that retained him'.
Nemes vs South Eastern Sydney Local Health District [2025] NSWSC 418
