A Canberra couple whose baby was stillborn on an operating table at Calvary Hospital was awarded nearly $900,000 in damages on Thursday. A judge found that were it not for the hospital and the doctor's failures, it was probable the baby would have been born alive.
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The hospital midwife failed to notice the baby was in foetal distress while the woman was waiting to be induced, Justice John Burns found, while obstetrician Andrew Foote failed to act with any haste when it should have been clear she would need an urgent Caesarean section.
If it were not for the hospital and doctor's failures over the two-hour period, the judge said in a 77-page judgment, the couple would not have suffered the psychological injuries they did.
The couple, whose names are suppressed, had tried unsuccessfully for years to have a child, and went through a number of frustrating and disappointing rounds of in-vitro fertilisation.
Their first pregnancy in 2010 ended in a miscarriage. A year later the woman fell pregnant with twins, and while one twin was not viable, the woman carried the other twin to term.
On January 11, 2011, five days after the baby's due date, the woman went to see Dr Foote and asked to be induced. He said the baby was healthy, the court heard, and suggested she be induced in a week. But they made a compromise that she be induced on January 13.
That day, the woman went to the hospital to be induced. She was hooked up to a machine that measured the baby's heartbeat, but at about 5pm the woman noticed a change in the rhythm.
She called for the midwife, who appeared to look at the trace and then left the room.
The woman noticed the rhythm of the baby's heartbeat change again, and called again for the midwife. This time, she said, the midwife said she would have to call the doctor.
When Dr Foote arrived about 6pm he said the woman would have to have a Caesarean section, and staff started preparing her for theatre. But the baby girl was stillborn about 7pm.
The couple sued both the hospital and Dr Foote for negligence and the case was heard in the ACT Supreme Court last year. Both denied liability at first, though the judge noted that the hospital later effectively conceded liability. In medical negligence lawsuits, insurers and indemnity protection societies often indemnify doctors and make decisions for them.
Justice Burns found that both Dr Foote and Calvary Hospital were liable for the psychological injuries caused to the couple by the stillbirth of their baby girl.
The woman suffered post-traumatic stress disorder and major depression, and the judge was satisfied it pervaded all aspects of her life and changed her from a happy person to a sad, depressed and angry person. Her husband too, had suffered major depression.
He said a competent midwife would have recognised the signs of foetal distress, and a competent obstetrician would have seen the heartbeat was abnormal, called for an urgent Caesarean section, and directed staff to ensure the procedure was carried out without delay.
Justice Burns ordered judgment in favour of the woman of $669,500 and $220,300 for her husband. The judge found that the hospital was liable for 30 per cent and the doctor for 70 per cent of the judgment amounts.
The judge said Dr Foote was significantly more culpable for the damage.
He said the doctor had the first and best opportunity to avoid the damage by warning the woman of the risks associated with continuing the pregnancy past term.
The judge said Dr Foote had failed to warn the woman of the increased risk of stillbirth
resulting from her age, the use of IVF, and the fact that this was her first pregnancy, and then failed to properly advise her about the timing of an induction.
"In addition, Dr Foote had the last chance to avoid this tragedy," Justice Burns said.
"Had he properly interpreted the CTG trace, recognised its significance for foetal viability and acted with appropriate haste to conduct, or arrange for, an emergency Caesarean section it is also probable that [the baby] would have been born alive."
The husband told the court: "I had faith in the hospital system. We had midwives there and we had a machine hooked up. We had doctors in the hospital. We had private health cover. We were in a private hospital. We paid good money. I just expected the best.”
