New South Wales Supreme Court CITATION : Rhonda Ballard v Wendy Louise Cox & Anor [2006] NSWSC 252 HEARING DATE(S) : 20/03/06, 21/03/06, 22/03/06, 23/03/06, 24/03/06, 27/03/06, 29/03/06, 31/03/06 JUDGMENT DATE : 7 April 2006 JUDGMENT OF : Dunford AJ DECISION : 1. Judgment for the plaintiffs against the second defendant for full amounts agreed to by first defendant.; 2. Liability apportioned 60% to first defendant, 40% to second defendant.; 3. Consequential orders made. CATCHWORDS : Negligence - child born with brain damage - failure of obstetrician to attend when first called - condition of foetus deteriorates - delay in calling obstetrician again - inappropriate forceps delivery - nature and cause of brain injury - apportionment LEGISLATION CITED : Civil Liability Act 2002 Law Reform (Miscellaneous Provisions) Act 1946 Rhonda Ballard v Wendy Louise Cox & Anor PARTIES : Spencer Cotie by his tutor Mike Cotie v Wendy Louise Cox & Anor Mike Cotie v Wendy Louise Cox & Anor FILE NUMBER(S) : SC 20433/01; 20435/01; 20434/01 D J Higgs - mentioned for plaintiffs COUNSEL : D J Higgs SC / J Downing - First Defendant J L Glissan QC / M J Fordham - Second Defendant SOLICITORS : Tresscox Lawyers - First Defendant Minter Ellison Lawyers - Second Defendant IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DUNFORD AJ Friday, 7 April 2006 20433/01 RHONDA BALLARD v WENDY LOUISE COX & ANOR 20435/01 SPENCER COTIE BY HIS TUTOR MIKE COTIE v WENDY LOUISE COX & ANOR 20434/01 MIKE COTIE v WENDY LOUISE COX & ANOR JUDGMENT 1 HIS HONOUR: Spencer Cotie was born at about 5:24am on 18 April 1999 at the Prince of Wales Private Hospital suffering perinatal asphyxia and resultant brain damage and has subsequently developed cerebral palsy. He was the first child of Rhonda Ballard and her husband, Mike Cotie, and was delivered by Dr Wendy Cox. Alleging that his perinatal asphyxia, brain damage and cerebral palsy were due to the negligence of the obstetrician, Dr Cox and the Hospital, Spencer Cotie by his father as tutor, sued Dr Cox and the Hospital in proceedings number 20435/01 claiming damages for his injuries and disabilities. At the same time, his mother and father commenced proceedings 20433/01 and 20434/01 respectively claiming damages for nervous shock. 2 The proceedings between the respective plaintiffs and Dr Cox were settled at the end of last year in accordance with Terms of Settlement filed in Court, which Terms in relation to Spencer Cotie were approved by Studdert J on 13 December 2005. Those settlements left outstanding the plaintiffs' claim against the hospital and the cross-claims by each of the defendants against the other for indemnity or contribution pursuant to s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946. There is no dispute from the second defendant that the amounts for which the first defendant settled the various proceedings were fair and reasonable. 3 The hearing before me essentially took the form of a hearing of the first cross-claim by the first defendant (Dr Cox) against the second defendant (the Hospital) and Mr Higgs, Senior Counsel for the first defendant mentioned the matter on behalf of the solicitor for the plaintiffs to inform me that the plaintiffs relied in their claims against the second defendant on the evidence adduced by the first defendant against the second defendant. Although the Terms of Settlement between the plaintiffs and the first defendant were on the basis that there was no admission of liability, the first defendant has, before me, expressly admitted breaches of the duty of care and the second defendant does not deny breach of the duty of care on the part of its employee, the midwife, Sister Whitehead; and the issues before me resolved into determining the precise nature of the injuries suffered by Spencer, causation and, subject to that, apportionment. The proceedings are to be determined on Common Law principles, the Civil Liability Act 2002 not being applicable. 4 For the first defendant reports were obtained from Professor David Ellwood, Associate Dean and Professor of Obstetrics and Gynaecology at the Australian National University Medical School and Director of Foetal Medicine Unit at Canberra Hospital, Dr Dianne Cutts, Midwifery Consultant and Professorial Fellow at the School of Nursing and Midwifery at Victoria University, Professor Paul Colditz, Professor of Perinatal Medicine, University of Queensland and practising neonatal paediatrician. For the second defendant reports were obtained from Mr Roger V Clements, Consultant Obstetrician and Gynaecologist of Harley Street, London in the United Kingdom, Dr Brian Kendall, Consultant Neuro-radiologist also of London (who gave evidence by video link) and Dr Michael G Harbord, Paediatric Neurologist of Adelaide. All of these experts were cross-examined extensively and Dr Cox and Sister Whitehead also gave evidence. 5 Ms Ballard had been a patient of Dr Cox in respect of this pregnancy since 8 December 1995 and was admitted to Prince of Wales Private Hospital at about 7:40pm on 17 April 1999 with 3 to 4 minute contractions lasting 40 to 50 seconds, such contractions having started about 5:00pm. 6 Following her transfer to the delivery suite CTG tracing was commenced at about 9:30pm recording the mother's heart rate and contractions and also the foetal heart rate. 7 From about 10:00pm (2200) there were a number of decelerations or drops in the foetal heart rate concurrently with the mother's contractions particularly at about 2200, 2210 and 2220. Because these decelerations were concurrent with the contractions they were not matters of concern and are referred to as Type A, early or benign decelerations. 8 Normally there is a co-relation between the mother's contractions and the foetal heart rate which is generally in the range 120 to 160 beats per minute (the base line) with a variable range of between 5 and 10. During a contraction it is not unusual for it to go down to about 80, but it normally recovers to the base line as the contraction finishes. 9 However, this CTG graph recorded decelerations at about 2220, 2230 and 2250 which, although they started at about the same time as the contractions, the recovery was slower and was uneven. Such decelerations are generally described as "variable" and if they are slow to recover, as "variable contractions with a late component". "Late" decelerations, on the other hand, are those which start after the peak of the contraction and do not mirror the contraction. They are often of a much shallower nature and they take a longer period to recover (see generally Professor Ellwood at T 199-200). 10 Variable contractions with a late component and late contractions are indicators of foetal distress and the development of possible hypoxia and acidosis, which over a prolonged period of time can lead to brain damage. Also relevant in this regard is "tachycardia" which refers to a foetal heartbeat of more than 160 beats per minute and is a further indication of foetal distress, hypoxia and acidosis, and "bradycardia" where the foetal heartbeat falls below 120 heartbeats a minute and which can indicate foetal asphyxia. 11 There was a change over of midwives at 10:00pm when Sister Koo handed over to Sister Whitehead. Both were experienced midwives who enjoyed the confidence of Dr Cox. 12 Against the time "2200", Sister Whitehead made a note in the Obstetric Chart that she had taken over the care, that the foetal heart rate was 130/150, there was occasional decelerations to 80 lasting 15 to 30 seconds with good variability in between. 13 Against the time "2230" she wrote a note which, inter alia recorded that she had made a vaginal examination and artificially ruptured the membranes, which disclosed a grade 2 meconium in the liquor, that the cervix was not dilated and the foetal head was in the minus 3 position, that is 3cm above the ischial spine. She also recorded that the CTG showed a foetal heart rate base line of 130 and variability of more than 10 heartbeats a minute and noted Type 2 decelerations to 80 or 90 with each contraction. She also wrote "Dr Cox aware. Observe. (Dr Chilton to be present for delivery)." 14 Against the time "2300" she wrote inter alia "late decelerations to 60-70 lasting 20 to 30 seconds. Variability more than 10". On the Partogram, she recorded a Type 1 deceleration shortly after 2200 and a deceleration which she described as "late" later in that hour. She also noted meconium in the liquor and in the box under 2300 wrote "Dr Cox aware". Sister Whitehead's evidence was to the effect that she telephoned Dr Cox at about 2230 (10:30pm) and informed her of the meconium in the liquor and the late decelerations and that Dr Cox told her to continue observations and to alert Dr Chilton to be present for the delivery. Dr Cox does not deny receiving the phone call but has no recollection of it, and said that if she had been given that information, she would either come in to examine the patient and the CTG trace, or at least had the CTG trace faxed to her as this was her usual practice. She did neither. 15 From his examination of the CTG, Professor Ellwood noted a number of decelerations prior to 2300, some of which he described as variable with a late component and said that this indicated that the foetus was probably hypoxic or acidotic at this stage. He said that at 2300, the alternatives available to Dr Cox if she had come to the Hospital was to do a pH scalp test to determine whether a child was acidotic, or to continue to observe. He did not consider the caesarean section was a reasonable option at that stage. (T 204). 16 After midnight, he noted a number of what he described as "recurrent late decelerations" (T 207). 17 Moreover, the base line from about 0100 hours was above 160 heartbeats a minute at which time Professor Ellwood said there were a mixture of variable and late decelerations. He also said that by 0330, the CTG was unequivocally very tachycardic with recurrent late decelerations and decreased variability, indicative of foetal hypoxia and/or acidosis which he defined as a pH of less than 7.15. In other parts of the evidence, the condition of the foetal after 0100 was described that of a "complicated tachycardia" being an increased rate above 160 with lower variations in the base line complicated by meconium in the liquor and variable and late decelerations. 18 Both Professor Ellwood and Mr Clements agreed that after 11:00pm (2300) the condition of the foetus deteriorated as demonstrated by the late or variable (many of them with a late component) decelerations, the continuing tachycardia after 1:00am, with the reduced variability in the base line and with meconium in the liquor. Moreover, by about 2:30am the cervix was still not fully dilated and the head of the foetus had not advanced beyond minus 2.5cm above the ischial spine. 19 There was some minor disagreement as to which decelerations should be described as late and which should be described as "variable with a late component" and Mr Clements said that in this context "late" was used in two different contexts; but the overall picture was clear. This foetus was suffering hypoxic distress and acidosis was probably increasing. 20 In the Obstetric Chart, notes at 0230 Sister Whitehead noted the relation of the FHR (foetal heart rate) as "variable-late decelerations, 120 down to 80-90, variability more than 10". All the experts agree, and it is not disputed on behalf of the second defendant, that during this period, that is from 11:00pm to 3:00am, the midwife should have called Dr Cox and notified her of the deteriorating situation. Dr Cox said, and I accept, that if she had been notified during that time of the continuing variable and late decelerations and the tachycardia, she would have come in and delivered the child by caesarean section. 21 However, Dr Cox was not called until 0420, whereupon she arrived within 10 minutes. Upon arrival, she reviewed the CTG trace which was then in use, which only went back to 0234. She noted the continuing tachycardia, the late and variable decelerations and decided that she needed to delivery the baby as quickly as possible and decided on a forceps delivery rather than waiting the additional time which would be necessary for a caesarean. Although she does not recall it, it appears that Dr Cox firstly applied Neville-Barnes forceps but was unsuccessful. The foetus was in a transverse position and she attempted to rotate it firstly by hand and then using Kjelland's forceps, and actually rotated it the wrong way. She then applied Neville-Barnes forceps and delivered the baby, noting in her own handwriting in the Obstetric Chart "very hard pulls necessary to effect delivery". 22 The Nursing Notes for the second stage of labour indicate that Neville-Barnes forceps were applied at 4:55am at which time the foetal heart rate fell to 80 before rising again to 180. At 5:00am Kjelland's forceps were applied and the heart rate fell to 72. At 5:05am Neville-Barnes forceps were applied again with the heart rate at 80-90. It then fell to 70 at 5:10am, and rose at 5:15am. At 5:20am there was tachycardia at 160-180 and at 5:22am the child was born. A pH sample taken from the cord immediately after birth registered 6.88 indicating marked acidosis. 23 Mr Clements said in his report at p 16: "Reconstructing the circumstances of delivery as best I can, Dr Cox appears to have mistaken the position of the fetal head (its rotation within the maternal pelvis). She says that she failed to rotate it manually but that she succeeded in rotating it with Kjelland's forceps from the left occiput-lateral position to the left occiput-anterior position. However, when she eventually delivered the head it was not in the left occiput-anterior position but in the occiput-posterior position. She had therefore turned the baby's head from a right occiput-lateral position to a right occiput-posterior position. By her own account she needed to exert 'very hard pulls' in order to effect delivery with the conventional forceps because by this time the fetal head was in the occiput-posterior position and therefore at mechanical disadvantage." 24 The sudden drop in the foetal heart rate (bradycardia) coincides with the application of the forceps and is indicative of near-total asphyxia. Mr Clements at p 19 said: "The CTG during the attempts at delivery suggests damaging bradycardia with no effective fetal circulation for a period of some ten minutes between 0459 and 0509 with impaired circulation thereafter." 25 The experts agree and Dr Cox admits that if she had reviewed the whole of the CTG trace from 10:00pm the previous evening and had proper regard to the position of the foetal head, she should not have attempted a forceps delivery but proceeded as soon as possible to delivery by caesarean section. 26 As a result of trauma associated with his birth, Spencer Cotie suffered brain damage which has resulted in choreo-athetoid (dyskinetic) cerebral palsy with some degree of spastic quadriplegia or (as Dr Harbord prefers to describe it) spastic diplegia. Choreo-athetoid cerebral palsy is a characteristic of injury to the basal ganglia area of the brain which controls the integration of movement, whilst spasticity is a characteristic of injury to the cortex of the brain which controls motor function and cognition. It appears Spencer does not have any cognitive defects. 27 There is no dispute that the injury to the basal ganglia occurred with the sudden drop in the heart rate (bradycardia) at the time when the forceps were applied at about 4:55am. It did rise again briefly but then fell again when the Kjelland's forceps were applied, and accordingly the choreo-athetoid (dyskinetic) cerebral palsy is due to the breach of duty of care on the part of Dr Cox in performing the forceps delivery in circumstances where it was not appropriate to do so. 28 Dr Kendall is of the view that the injury to the cortex occurred as a spillover from the injury to the basal ganglia and at the same time, whilst Professor Colditz is of the view that it is the result of the hypoxia and the ischemia suffered by the foetus in the hours prior to the application of the forceps. Both Dr Kendall and Professor Colditz agree on what is shown in the MRI scan, and it is only their interpretation that is different; but all the experts including Mr Clements and Dr Kendall agreed that the prolonged intermittent hypoxia suffered by the foetus between about 11pm and 4am rendered it more susceptible to the bradycardia and its effects at the time of the application of the forceps, and Dr Harbord, called on behalf of the second defendant, was of the opinion that in all likelihood, Spencer suffered permanent cortical injury prior to the application of the forceps. 29 On the whole of the evidence and taking into account Dr Harbord's concession that the child probably did suffer cortical injury prior to the application of the forceps and the concession by Mr Clements and Dr Kendall that the prolonged intermittent hypoxia probably rendered the child more susceptible to the bradycardia at the time of the application of the forceps, I prefer Professor Colditz's evidence to the effect that the cortical injury is not merely a flow on from the injury to the basal ganglia occasioned by the application of the forceps, but that it is due to the long period of intermittent hypoxia prior to that time. On the other hand, I am also satisfied that the major disabilities suffered by Spencer are due to the basal ganglia injury and therefore to the application of the forceps, and that the consequences of the cortical injury are minor by comparison, although nonetheless serious and disabling. 30 Professor Colditz was however also of opinion that if Dr Cox had not done the forceps delivery but delivered by caesarean section, whilst there would have been no injury to the basal ganglia, the additional 30 to 40 minutes of prolonged hypoxia and ischemia would probably have led to a more severe cortical injury. 31 One area of controversy between the parties is whether Sister Whitehead did contact Dr Cox at about 10:30pm on 17 April and inform her of late decelerations and the presence of meconium. Dr Cox cannot recall the telephone call but does not deny it, and there are a number of inconsistencies and confusing aspects in Sister Whitehead's evidence and the records she made at the time, although I hasten to add that I regard her as a truthful witness doing her best to recollect what occurred. 32 She claims to have made the relevant note in the Obstetric Chart at 2230 where she recorded, inter alia, type 2 (i.e. late) decelerations, although the Partogram, also maintained by her, diagrammatically shows the first late deceleration as being sometime after 2230. It also appears to show the observation of meconium in the second half hour between 2200 and 2300 and likewise the state of the cervical dilation and the station of the foetal head, and the point is made that if all these events were noted after 2230, she could not have written the entry in the Obstetric Chart at that time as she claims. 33 Although she insisted that she wrote the note at the time she put in the "date and time" column, I consider it likely that she wrote the note shortly thereafter. She came on duty at 10:00pm (2200), and it would appear that she examined the mother and the CTG trace, checked the infusion rate of the epidural etc and then wrote the entry opposite 2200. Subsequently, at about 2230 or shortly afterwards, she commenced further observations, carried out a vaginal examination, artificially ruptured the membranes and noted grade 2 meconium in the liquor. She then noted that the position of the foetus was at minus 3, examined the CTG, noted a base line of 130 with a variability of more than 10, saw what she considered to be type 2 or late decelerations to 80 or 90 with each contraction and saw the contractions were moderately strong every 3 minutes etc. She then went back to her desk and being concerned about the meconium and the late decelerations, she called Dr Cox who told her to continue to observe and to notify Dr Chilton, the neo-natal paediatrician to be present for the delivery. She then wrote the note against the time 2230, that being the time at which she started the observations which she was then recording. 34 This is consistent with the Partogram except to the extent that the recorded CTG trace on the Partogram only shows one type 1 deceleration prior to 10:30pm and one late one sometime after 10:30pm, but I do not regard this as significant. The Partogram clearly does not purport to record all the decelerations, it only shows two within the hour from 2200 to 2300 and the CTG and all the evidence from the various persons who have examined the CTG indicate that there were many more decelerations during that period. I am therefore satisfied that the CTG record on the Partogram is not intended to record the time or nature of each deceleration but merely to present an overall picture. 35 Sister Whitehead was insistent that she did ring Dr Cox and would not have made a note to that effect if she had not done so. I accept her evidence in this regard and I am satisfied that Dr Cox was telephoned at or shortly after 2230 (10:30pm) and told of the meconium and what Sister Whitehead regarded as late decelerations. Dr Cox insisted that it was her usual practice in those circumstances to come in and observe the patient. She failed to do so and was in breach of her duty of care in so failing. If she had come in at that time, she would have been on hand to observe the continuing deteriorating condition of the foetus and would undoubtedly have performed a caesarean delivery within a few hours. 36 After 10:30pm (2230), the condition of the foetus continued to deteriorate and from 11:00pm onwards, there was an ever increasing need for Sister Whitehead to contact Dr Cox again and notify her of the deterioration, particularly after midnight when there were late decelerations, variable decelerations with a late component, tachycardia and the meconium continued to be present in the liquor. In failing to call Dr Cox again during this period, particularly having been told by Dr Cox at about 10:30pm to continue to observe, Sister Whitehead was in breach of her duty of care for which the Hospital is responsible. 37 There is no dispute that if Dr Cox had been called during this time, particularly by about 2:00am, she would have had no choice but to deliver the child by caesarean section which I am satisfied she would have done, and if she had done so, the probabilities are that the child would have suffered no damage whatsoever. Even if not delivered until 3:00am the general opinion of the experts appears to be that, although there may have been some hypoxia, the child could have been resuscitated to normality. 38 Finally, when Dr Cox did arrive at the hospital at about 0430 following the call at 0420, she only reviewed the trace back to 0234 and did not examine the earlier traces, which would have alerted her to a much more serious condition of the foetus and probably deflected her from attempting the forceps delivery. She concedes she was in breach of her duty of care in this regard but claims that Sister Whitehead was also in breach of her duty in failing to draw her attention to what had gone on prior to 0234. In my opinion, if Dr Cox wanted to know what the state of the CTG trace prior to 0230 (as she should have) it was up to her to ask Sister Whitehead for more details and herself examine the earlier traces, and not to depend on the midwife volunteering information. 39 I am therefore satisfied that Dr Cox was in breach of her duty of care in the following respects: 1. In failing to come to the Hospital when notified of condition by Sister Whitehead at about 10:30pm of the variable (or late) decelerations and the presence of meconium; 2. In failing to examine the whole of the CTG trace when she did attend the Hospital at 4:30am; 3. In electing in the circumstances to attempt a forceps delivery rather than in proceeding to delivery by caesarean section; and 4. In performing the forceps delivery incompetently. 40 I am satisfied that each of these breaches contributed to the injuries suffered by Spencer. 41 I am of further of the opinion that Sister Whitehead was in breach of her duty of care in failing to notify Dr Cox of the continuing deterioration in the condition of the foetus between 11:00pm and 4:00am particularly after midnight, and I am satisfied that if she had done so, a caesarean section would have been performed by about 2:00am and the child would have suffered no deficits at all. I therefore find that the second defendant is liable to the plaintiffs for the whole of the damage and I turn to the question of apportionment. 42 The major injury and that with the most serious consequences suffered by Spencer was the injury to the basal ganglia and this was entirely due to the forceps delivery. The injury to the cortex resulting in the less disabling spastic quadriplegia (or diplegia) was due to the prolonged period of intermittent hypoxia and this was due to the failure of Sister Whitehead to call Dr Cox again after 11:00pm; but on the other hand, if Dr Cox had come to the hospital at 10:30pm, she would have been on hand to observe herself. But against all of these considerations is the fact that if Dr Cox had been called between 11:00pm and 2:00am the child would almost certainly have been born by about 2:30am by caesarean section and in which case he would have suffered no basal ganglia injury and probably no ill-effects at all. 43 In these circumstances, I apportion the responsibility for the damage to the first defendant at 60% and that of the second defendant at 40%. 44 Subject to any submissions the parties wish to make as to the costs of the cross-claims, I therefore intend to make the following orders: In 20435/01 (Spencer Cotie by his tutor Mike Cotie v Wendy Cox & Anor): 1. Direct entry of judgment for the plaintiff against the second defendant in the sum of $8,750,000. 2. Order the second defendant to pay the plaintiffs' costs. 3. On the First Cross-Claim, direct the entry of judgment for the First Cross-Claimant against the First Cross-Defendant in the sum of $3,500,000 plus 40% of the costs payable to the plaintiff. 4. On the Second Cross-Claim, direct the entry of judgment for the Second Cross-Claimant against the Second Cross-Defendant in the sum of $5,250,000 plus 60% of the costs payable to the plaintiff. 5. Make no order as to the costs of the cross-claims to the intent that each defendant bear her or its own costs of the cross-claims. In each of 20433/01 (Rhonda Ballard v Wendy Cox & Anor) and 20434/01 (Mike Cotie v Wendy Cox & Anor): 1. Direct entry of judgment for the plaintiff against the second defendant in the sum of $70,000. 2. Order the second defendant to pay the plaintiffs' costs. 3. On the First Cross-Claim, direct the entry of judgment for the First Cross-Claimant against the First Cross-Defendant in the sum of $28,000 plus 40% of the costs payable to the plaintiff. 4. On the Second Cross-Claim, direct the entry of judgment for the Second Cross-Claimant against the Second Cross-Defendant in the sum of $42,000 plus 60% of the costs payable to the plaintiff. 5. Make no order as to the costs of the cross claims to the intent that each defendant bear her or its own costs of the cross-claims. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.