Ghazi by her tutor Sfajalani v Western Sydney Local Health District trading as Auburn Hospital [2018] NSWSC 1743

Supreme Court New South Wales

Medium Neutral Citation: Ghazi by her tutor Sfajalani v Western Sydney Local Health District trading as Auburn Hospital [2018] NSWSC 1743 Hearing dates: 8 November 2018 Date of orders: 14 November 2018 Decision date: 14 November 2018 Jurisdiction: Common Law Before: Harrison J Decision: Settlement not approved Catchwords: CIVIL PROCEDURE – settlement – court approval – where proceeding commenced on behalf of minor – where settlement amount takes into account the prospect that the plaintiff may not succeed – where settlement amount disproportionately favours the defendant – settlement not approved Category: Procedural and other rulings Parties: Ghina Ghazi by her tutor Assia Sfajalani (Plaintiff) Western Sydney Local Health District (Defendant) Representation: Counsel: M J Cranitch SC with A D Campbell (Plaintiff) S A Woods (Defendant)

Solicitors: Gerard Malouf & Partners (Plaintiff) McCabe Curwood (Defendant) File Number(s): 2015/215738 Publication restriction: Nil

Judgment 1. HIS HONOUR: Ghina Ghazi was born on 22 May 2009. By her amended statement of claim Ghina alleges that the Auburn Hospital breached its duty of care to her in the events surrounding her antenatal care and subsequent birth in the circumstances briefly described in what follows. 2. Ghina's mother regularly attended the antenatal clinic at the hospital. She first went there on 20 November 2008 at 13 weeks and 5 days' gestation. On 21 May 2009, Ghina's mother attended the clinic for a scheduled visit. She allegedly explained that she had noticed decreased foetal movement for approximately two days. She was reassured that everything was fine and was advised to take Panadol. Ghina's father asked for an ultrasound to be performed, but he was told that it was not necessary. At the end of the consultation, Ghina's mother was booked for prostaglandin induction of labour on 28 May 2009. 3. That same evening, Ghina's father telephoned the hospital at 11pm reporting that Ghina's mother had not felt the foetus move since 10am that day and had had a mucus show. They were advised that the show was as a result of the vaginal examination that day and that it was normal. Ghina's mother was advised to have a glass of water and phone again if the baby did not move in three hours' time, in which event they should attend at the hospital. Ghina's mother followed that advice and felt the baby move slightly after about two hours. She then fell asleep. 4. Ghina's mother woke at 8am and went to the toilet. She noticed a significant vaginal discharge. She took a sample of this and attended the hospital. 5. At 11.05am a CTG trace was commenced. The trace was non-reassuring and was terminated at 12.05pm when Ghina's mother was transferred to the birthing unit and admitted at 12.15pm. CTG monitoring was continued. Ghina was shortly thereafter delivered by emergency Caesarean at 1.58pm. She weighed 2840g and was diagnosed with Grade 2 neonatal encephalopathy due to intra-uterine hypoxia. 6. The amended statement of claim alleged that the hospital was negligent in that it failed adequately to advise Ghina's mother to attend for evaluation on 21 May 2009 or to carry out adequate investigations for her well-being on that day. Other cognate contentions are advanced. They include an allegation that the hospital failed to make it clear to Ghina's mother that the absence of foetal movements was potentially serious and that she should attend the hospital immediately. An allegation of a failure to diagnose placental insufficiency is also made. No complaint is made with respect to Ghina's care following her birth. 7. The parties have settled the proceedings in principle, subject to the necessary approval of the Court. The amount of the proposed settlement is said to be a compromise in light of what are perceived to be potential difficulties faced by Ghina with respect to the issue of the hospital's liability. That difficulty is thought to arise in the following circumstances. 8. There was some initial confusion concerning when Ghina's parents first attended the midwifery consultation on 21 May 2009. It was initially suggested, possibly as the result of language difficulties, and confusing hospital notes, that they had attended in the early hours of 22 May 2009 but had not been attended to until late the same morning. Closer examination reveals that this was incorrect. 9. Although issues such as the size of the foetus relative to age are potentially complicating factors in the case, the principal allegation turns upon whether or not the advice which was given by the midwife at 11pm on 21 May 2009 was correct. Ghina's expert evidence suggests that it was not. Associate Professor Daniel Challis, who has been qualified by the hospital, suggests that the advice was reasonably normal practice at the time. There is in addition a neonatological issue concerning whether the hypoxic event that caused the damage took place only a short time before birth, in which case it would or might not have been related to the reduced foetal movement on 21 May 2009. Assessment of this timing issue has been further confounded by the fact that Ghina was therapeutically cooled after birth, which has the result that the precise timing of the hypoxic event may erroneously appear to have occurred as much as four to five days prior to delivery. 10. Professor Colditz is of the opinion that the hypoxic insult occurred in the period from some time on 21 May 2009 until sometime before delivery on 22 May 2009. 11. The proposed settlement sum of $4M is a significant compromise, having regard to counsel's assessment of the full value of Ghina's claim as being in the range up to approximately $11M including funds management. That compromise is based upon the concern that there is no clear evidence available to support the claim on the issue of causation. The hospital's position, supported by respected expert medical opinion, is that nothing that was done, and nothing that was omitted, contributed in any way to the poor outcome. The success or otherwise of Ghina's claim depends upon the acceptance of her own medical experts, and an acceptance of her parents' version about complaints said to have been made on the morning of 21 May 2009, when no investigation was carried out in respect of the absence of foetal movement, as well as the inadequacy of the advice given at 11pm the same day. 12. Associate Professor Challis provided a report dated 23 April 2016 to the legal representatives of the hospital. That report dealt in part with the particulars of negligence pleaded by Ghina. With respect to the allegation concerning a failure to advise, or adequately to advise, her mother to attend for further evaluation on 21 May 2009, Professor Challis said this: "(a) Advise the mother to attend for further evaluation on 21 May 2009 The mother attended the antenatal clinic for a routine visit with a midwife on 21 May 2009. The time of the visit is not recorded. At that visit the mother was noted to be at 30 weeks plus one day by dates, with a normal fundal height of 39cm. The foetal heart sounds were auscultated and the mother reported foetal movements. The mother's blood pressure was normal and the foetus was found to presenting head first. These findings were recorded on the mother's antenatal record and hand-held pregnancy card by the midwife. As the mother was just past her due date the midwife performed a vaginal examination for cervical assessment which found the cervix to be closed. Arrangements were made for the mother to attend for foetal heart rate monitoring on 27 May 2009 by which time she would have been 7 days past her due date, with prostin induction of labour booked for the following day. This clinical management plan was entirely appropriate and in keeping with contemporary practice in 2009. A call was taken by a midwife on the birthing unit that night at 11pm from the partner of the mother. The purpose of the call was that the partner was calling because of maternal vaginal discharge subsequent to the vaginal examination. It would appear that the midwife completing the telephone call record has questioned the partner about foetal movements in completing the telephone record, even though that was not the purpose of the call. The midwife has recorded that the mother has not had movements since 10am that morning (approximately 13 hours). The midwife has advised the mother to hydrate herself and if the baby did not begin moving to present to hospital for foetal heart rate monitoring. Decreased foetal movements at term is a common symptom. There is no agreed definition of what constituted decreased movements or over how long movements should be absent or reduced before review is indicated. The importance of the recognition of decreased movements and its link to stillbirth has been increasingly recognised in recent years. Ideally (and with the benefit of hindsight) the mother would have been asked to attend the hospital that night by the midwife based on the information provided by the husband. Nonetheless the midwife provided reasonable advice, knowing the mother had been in clinic for an antenatal visit that day where all foetal and maternal parameters had been verified to be normal. Furthermore the purpose of the call had been about the vaginal discharge, and the decreased movements only elicited on specific questioning. The midwife did specifically instruct the woman to ring in if the baby didn't begin to move after a glass of water. It should be noted that both the NSW health guideline on the management of decreased foetal movements and the RCOG guideline were not published until 2011, well after this case. It is my strong recollection that prior to the publication of these guidelines there was a wide variation in practice and advice given to women with a history of decreased foetal movements. It is my recollection, confirmed by several senior midwives at my institution, that it was common practice for midwives to instruct women to have a meal, a glass of orange juice or cold water to try to improve movements or the perception of movements, but to then attend if the baby did not start moving. Similar instructions and advice are still prevalent. Accordingly, it is my opinion that although not ideal, the advice given was in accordance with what was common practice by competent midwifery staff in 2009. (f) Adequately advise the mother regarding foetal movements All pregnant women are well aware of foetal movements, although as mentioned above the perception of movements by women is very variable. By my recollection, in 2009 there was no routine specific advice given to pregnant women about foetal movements, and foetal movements charts or 'kick charts' have never been shown to improve outcomes. Women are asked at each visit about foetal movements, so are aware that they are significant. It is not apparent to me what general advice regarding movements was given to the mother in this case. It would nonetheless seem that she was aware of the significance of decreased movements given that the reason for presentation to hospital on 22 May was recorded as 'presenting symptom with decreased foetal movements'. In summary, I have not identified an occasion where the hospital staff acted in a manner that was outside widely accepted practice in 2009. It is likely that the baby suffered an unpredictable insult from a cord accident in late pregnancy, possibly associated with abnormal placental anatomy." 1. The hospital also qualified Associate Professor Nick Evans, an expert in neonatal medicine, for an opinion in this case. His report dated 14 November 2015 expresses the following conclusion: "Overall the evidence points strongly to a prolonged sub-acute antenatal hypoxia as the cause of Ghina's neonatal brain injury and current disabilities. The duration of this hypoxia is uncertain. With the benefit of hindsight, the reduced foetal movement from 10.00hrs on 21 May probably gives some pointer to the duration of the borderline foetal compromise being from at least then and probably before as well. In such a history, it is not possible to delineate a time when brain injury became irreversible. In general terms, the longer someone is in an adverse environment, the higher the risk of an adverse outcome so the earlier Ghina could have been delivered, the lower this risk would have been. It is not possible in situations such as this to quantify that risk in relation to time. Considering the time over which this had been evolving (over 24 hours), it would be my opinion that early delivery after admission on 22 May would not have made much difference to Ghina's outcome. If it was considered that there were indications for her to be assessed on 21 May and if it is considered that that assessment would be provided [sic] indications for expedited delivery, then that probably would have reduced her risks of an adverse outcome." 1. On the issue of the importance and effect of neonatal cooling, Professor Colditz said this in his report dated 20 August 2018: "I do not disagree with this broad view that therapeutic hypothermia may extend the period before the reduced diffusivity pseudo-normalises. However, it is certainly an over-simplification based on the limited amount of data reported in the literature, to suggest that there is any precision around the concept that therapeutic hypothermia may extend the period to pseudo- normalisation by two days and hence that in Ghina's case the hypoxic ischaemic insult that was the cause of her brain injury may have occurred up to four days prior to birth. … Conclusion Based on all of the above considerations considered in their entirety, it is most likely that Ghina's brain injury occurred no earlier than a day prior to birth and no later than an hour or two prior to birth." 1. Professor Sailesh Kumar provided a report to Ghina's lawyers dated 18 May 2016. He was of the view that the advice of the midwife given to Ghina's father was "clearly inappropriate". He was of the view that the parents should have been advised to attend the hospital immediately. He suggested that it is likely that the foetal heart rate trace would have been non-reassuring and that this would have prompted delivery. He considered that there was a missed opportunity on 21 May 2009 to assess foetal wellbeing. However, he considered that it was entirely possible that, given the significant lack of movements "since 10am the preceding day" (by which I take him to mean during the course of the same day since 10am), neurological injury had already occurred. 2. Dr Kumar was also asked for his opinion as to why Ghina suffered asphyxia and the probable causes which may have been avoided if she was delivered on 21 May 2009. Unfortunately, Dr Kumar answered the first part of the question but did not deal with whether or not the causes of the asphyxia could have been avoided by an earlier delivery. 3. Dr John Schmidt also provided a report to Ghina's lawyers dated 13 April 2018. Part of that report dealt with the particulars of alleged negligence as follows: "(a) Failure to adequately advise the plaintiff's mother to attend for further evaluation on 21 May 2009. I assume that [Ghina's mother] gave a history of a lack of foetal movements at the antenatal clinic on 21 May 2009. CTG should have subsequently been performed. (b) Failed to carry out adequate investigations for foetal well-being on 21 May 2009 Following the telephone conversation on the evening of 21 May 2009, [Ghina's mother] should have been recalled for investigation in regard to foetal welfare. ... (d) Failed to provide good antenatal advice to the plaintiff's mother Antenatal advice in regard to foetal movements was satisfactory, in so far, [Ghina's mother] took herself to the hospital on the morning of 22 May 2009. Foetal movements in 2009 were considered by all medical staff as a very important clinical indicator and it was protocol to investigate the patient further. For at least the last 20 years, foetal movements have been considered a parameter of foetal welfare. Similarly, the sister on the evening of 21 May 2009 should have recalled [Ghina's mother] for further evaluation. (e) Failed to make clear to the mother that lack of foetal movements was potentially serious and that she should attend immediately Although the sister enquired into the lack of foetal movements on the evening of 21 May 2009, she did not identify the seriousness of the symptomatology. Otherwise, she would have requested [Ghina's mother] to attend immediately. It was [Ghina's mother's] knowledge in regard to lack of foetal movements that caused her to attend the hospital on 22 May 2009. If not for [her] concerns, she would have suffered foetal death in utero. (f) Failed to diagnose placental insufficiency in a timely fashion I concur with Prof Challis that hypoxia probably occurred acutely over a period of a few days. Had [Ghina's mother] been recalled to the hospital on the evening of 21 May 2009 and investigation performed (CTG), the degree of hypoxaemia that the foetus suffered which caused hypoxic ischaemic encephalopathy would not have been severe and in all probability would have allowed the baby to be delivered without suffering hypoxaemia and subsequent brain damage. (g) Failed to adequately advise the plaintiff's mother regarding foetal movements It was well recognised by all antenatal carers in 2009 that foetal movements were an important clinical sign. As such, an enquiry was made at each antenatal visit in regard to foetal movements. [Ghina's mother] was very well versed in regard to foetal movements and because of this went to the hospital on the morning of 22 May 2009. It was neglect in not recalling [her] on the evening of 21 May 2009 when her husband reported no foetal movements." 1. Finally for present purposes, Registered Nurse Miriam Guttman provided a report dated 19 August 2015 in which she expressed the following conclusions: "It is obvious that despite commonly accepted nursing practice, the on-call midwife had given poor advice in regard to drinking water. The midwife should have been able to quickly assess that 12 hours without foetal movements was serious. The midwife should have also assumed that during that time period [Ghina's mother] had been eating and drinking so therefore, in theory, she should have felt the foetus move. Therefore, by not advising that [Ghina's mother] come directly to the hospital when telephoned at 11pm on 21 May 2009, the on-call midwife's behaviour fell below an acceptable standard of nursing care. This response by the on-call midwife could have possibly delayed the arrival of [Ghina's mother] at Auburn Hospital by a considerable amount of time. It was fortunate that [Ghina's parents] made the decision to present to the hospital approximately one hour after having made the phone call. Once admitted, due to poor and retrospective documentation, once a foetal heart beat had been established, it is difficult to assess the appropriateness of the nursing care that was provided." 1. I am not aware whether there have been conclaves of experts in relevant specialties or disciplines in this matter or whether joint reports have been prepared. Having regard to what I consider to be the burden of competing opinions, I would have expected this to have occurred by now and to be greatly assisted by such material if it were available, quite apart from its likely significance at the hearing. 2. I am aware that Ghina's parents have expressed the not unreasonable and perfectly understandable view that they wish to have an end to the uncertainty of the present litigation. Although that is a consideration of obvious force, it cannot in my view be unduly influential in assessing the present application, far less determinative of it, in which the best interests of Ghina are paramount. 3. I accept that there are competing views in this case concerning both the issue of breach of duty and causation. There may well be others. However, I do not think that the proposed compromise accurately reflects the difficulties that are said to be facing Ghina on either issue. I accept that some discount to take account of the prospect that Ghina may not succeed is appropriate, but as presently advised that discount disproportionately favours the hospital when assessed in the light of the competing expert opinions. In so saying, I am not intending to express a concluded, or even a preliminary, view about the likely outcome of this litigation. Importantly, I am not presently satisfied that the proposed settlement accurately or adequately represents the potentially competing strengths of the parties and is not in those circumstances in Ghina's best interests. Accordingly, I decline to approve it. 4. I note as well in passing that I am informed by Mr Cranitch SC who appears for Ghina that there is understood to be a current solicitor and client costs liability "not exceeding $500,000". I should not wish to be taken as accepting that any fund settled upon trust for Ghina following a compromise or a verdict was automatically amenable or susceptible to payment of such costs or that any trustee of such monies would necessarily accede to a request that those costs be paid, in whole or in part, out of the settled fund. To the extent only that there were some potential for such costs ultimately to be paid out of Ghina's entitlement, I note that that would have the effect of making the proposed settlement correspondingly less favourable to Ghina. 5. I note that the matter is listed for hearing commencing on 26 November 2018.