BRUCE v KAYE [2005] NSWCA 206

New South Wales Court of Appeal

CITATION: BRUCE v KAYE [2005] NSWCA 206

HEARING DATE(S): 12/05/2005

JUDGMENT DATE: 21 June 2005

JUDGMENT OF: Handley JA at 1; Santow JA at 2; Bryson JA at 3

DECISION: Appeal dismissed with costs.

CATCHWORDS: NEGLIGENCE - Professional Negligence, Medical (Obstetrician) - appellant challenged findings of Grove J which led to judgment for defendant on claim of medical negligence where plaintiff born in emergency Caesarian with catastrophic injuries and cerebral palsy - alleged negligence in permitting pregnancy to continue beyond 42 weeks - review of factual findings and events in management of plaintiff's mother including EDC (estimate date of confinement) - factual findings confirmed, appeal dismissed.

KRISTY JANE BRUCE (BY HER TUTOR JODY COLLEEN WINBANK)- APPELLANT PARTIES: DR ALAN KAYE - RESPONDENT

FILE NUMBER(S): CA 40340/2004

S G Campbell SC - Appellant COUNSEL: D Higgs SC- Respondent

Maurice Blackburn Cashman Lawyers - Appellant SOLICITORS: Tresscox - Respondent

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S): SC 20230 of 2001

LOWER COURT JUDICIAL OFFICER: Grove J

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40340/2004

HANDLEY JA SANTOW JA BRYSON JA

TUESDAY 21 JUNE 2005 KRISTY JANE BRUCE v DR ALAN KAYE Judgment 1 HANDLEY JA: I agree with Bryson JA. 2 SANTOW JA: I agree with Bryson JA. The meticulous reasons of Grove J and now on appeal of Bryson JA demonstrate why this appeal could not succeed. It is not to diminish the tragic outcome for the appellant, to whose care her mother has been devoted, to acknowledge that the respondent's impeccable management of the confinement was, on the evidence, in no way responsible for what occurred. 3 BRYSON JA: The appellant appeals against judgment for the defendant given by Grove J on 8 April 2004 [2004] NSWSC 277 on her claim as plaintiff for damages for catastrophic injuries which she suffered at birth. The appellant is a minor and her elder sister conducts these proceedings as tutor. The respondent, defendant in the Common Law Division, is a Specialist Obstetrician who attended the appellant's mother Ms Chevelle (hereinafter "the patient") as his patient on and from 17 October 1988, attended her at the delivery of the appellant and performed a Caesarean section for the delivery. 4 The appellant was born on 21 March 1989 at 13 minutes past mid-night at the Royal Hospital for Women. When born she was in a terrible condition as reflected in early APGAR scores, and at 11.35am she was transferred to the Prince of Wales Children's Hospital. Grove J found: (RED 9) In due course it was discovered that she was suffering from cerebral palsy. She is profoundly incapacitated. Her palsy is described as being of the spastic quadriplegia type. She is wheelchair bound although she can be exercised by taking a few halting steps if she is fully supported by an adult person. She is non-verbal but is sentient and can make known various feelings such as joy and irritation. She has some capacity for communication by activating an electronic board with her forehead. She is totally dependent upon others to perform the ordinary activities of daily living. 5 Events associated with the birth and the management of the patient were complex and the crisis was extreme. By 20 March 1989 the pregnancy was at an advanced stage, and was (as Grove J found) approaching or (as the appellant contended) beyond 42 weeks of gestation. On the evening of 20 March 1989 the patient became afflicted with pains which she described as excruciating, niggly pains. She was taken to the Royal Hospital for Women with great urgency by Mr Bruce, who was her domestic partner. She reached the hospital at some time between 10.30pm to 11.15pm, which is shown as the admission time on a hospital note. The respondent arrived at 11.35pm in response to telephone conversations with a hospital staff midwife. 6 After an examination of the patient and seeing a record of the foetal scalp electrode (FSE) showing type 2 deceleration with variable dips, the respondent decided to conduct an immediate Lower Segment Caesarean Section (LSCS). This required preparation of an operating room and obtaining the attendance of an anaesthetist who was engaged in another operation. After delivery of the appellant the respondent manually extracted the placenta. He observed that an earlier LSCS scar was intact and that there was a posterior uterine rupture extending laterally to the left broad ligament; he estimated the length of the rupture as 10cm; and there was blood in the peritoneal cavity. Uterine rupture is very rare. Separation of the residual scar of an earlier Caesarean section, referred to as dehiscence, is a known risk and complication of LSCS; but did not occur in this instance. It was extraordinarily rare that there was a previous LSCS scar which remained entirely intact while there was a major rupture elsewhere in the uterus. A senior consultant surgeon Dr Harris attended and performed a hysterectomy; this was life-saving surgery for the patient. The allegations of negligence do not relate to the respondent's management of the crisis on 20 and 21 March 1989.