King Edward Memorial Hospital found negligent after baby suffers catastrophic brain injury
A Perth family has lost a Supreme Court of Western Australia lawsuit against King Edward Memorial Hospital, despite a judge finding that hospital clinicians were negligent in their care of the family’s daughter.
PEOPLE & COMMUNITY
The girl, who WAtoday has chosen not to name, was born at 38 weeks in August 2020 after medical examinations identified serious concerns about her wellbeing.
An ultrasound showed that the unborn baby had restricted growth, reduced amniotic fluid and abnormal cerebral blood flow, signs that suggested she was experiencing distress. Doctors advised the parents that she should be delivered early.
The family later disputed what they had been told about the available delivery options. The parents told the court they were advised that an elective caesarean was “not an option in a public hospital”.
However, the judge accepted the evidence of the doctors, who said an elective caesarean had been available but was declined by the parents.
The mother had a strong preference for a vaginal birth and was induced. During the induction, monitoring of the baby’s heart rate showed that her condition was deteriorating and that she needed to be delivered urgently by emergency caesarean.
According to evidence presented to the court, the father spent between 20 and 30 minutes asking doctors questions about the risks of the operation. Doctors said he continued asking questions for a further five to 10 minutes even after the baby’s heart rate had worsened and the delivery had become a category-one emergency.
The mother eventually gave oral consent after an examination found that her cervix was not sufficiently dilated and that a vaginal delivery was no longer possible.
As the mother was taken to the operating theatre, doctors told the court that the father retained the consent form, edited it and crossed out two standard clauses. The clauses related to consent for clinical photographs and vaginal examinations by supervised medical students while the mother was under anaesthetic.
The surgical team then had difficulty locating the form. Doctors alleged that the delay affected the timing of the caesarean, while the father disputed the account and said he returned the form when it was first requested.
The family argued that King Edward Memorial Hospital had failed to recognise the need for a caesarean earlier and that this negligence contributed to the baby’s injuries.
The judge found that a doctor could not legally perform the surgery without consent. Because the parents’ questions and discussions took about 30 minutes to resolve, the court ruled that an earlier recommendation for a caesarean would not have led to an earlier birth.
The judge concluded that the mother would not have consented to the operation any earlier than she did. As a result, the baby’s hypoxic-ischaemic brain injury was considered legally “inevitable” and was not found to have been caused by the hospital’s earlier negligence.
Despite dismissing the compensation claim, the judge found the hospital had breached its duty of care over the handling of the baby’s heart-rate monitoring.
A midwife had paged a registrar to review a highly concerning cardiotocography trace, or CTG, which records the baby’s heart rate during labour. The court found that the doctor did not review the CTG history, speak with the midwife or ask why she had been called.
Instead, the doctor “glanced” at the screen and left the room.
The judge ruled that the failure to properly interpret the CTG fell below the precautions a reasonable hospital would have taken to reduce the risk of oxygen deprivation.
The court nevertheless found that the child’s severe brain injury would have occurred regardless of the hospital’s negligence. The family’s claim was therefore dismissed and no compensation payout was awarded.
The girl, now five, survived a prolonged resuscitation but has grade-three brain damage, cerebral palsy, functional blindness and impaired hearing. Her parents had pursued the case to obtain financial support for her ongoing care and treatment, with her impairments expected to continue for the rest of her life.
The judge acknowledged that the findings would be “of little consolation” to the family, who were left questioning how their daughter suffered profound injuries while receiving care at the hospital.
The girl’s father said on a GoFundMe page that she “continues to show strength, awareness and joy” and that her “resilience is beyond words”.
The fundraiser had collected almost $7,000 towards a target of $55,000 for overseas treatment described as a potential “breakthrough treatment” intended to stimulate the girl’s brain and possibly improve her quality of life.
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