HEALTH LAW UPDATE August 2011 – Cases, News, Views & Research ADDRESS LEVEL 4, TOOWONG TOWER • Cardiotocographs – problematic for clinicians and judges 9 SHERWOOD ROAD,TOOWONG • Dr Patel, continued • Limitations of the peer professional practice defence BRISBANE, QUEENSLAND • Patient documentation AUSTRALIA • Gen-Y nurses tipping the balance of power CORRESPONDENCE PO BOX 82, TOOWONG CAUSATION AND SUSPICIOUS CTG TRACES QUEENSLAND, 4066 Case note McCoy v East Midlands Strategic Health AUSTRALIA Authority [2011] EWHC 38 (QB) This decision was delivered on 18 January 2011 by the Honourable Mrs Justice TELEPHONE Slade in the Queen’s Bench Division of the High Court of England and Wales. 07 3371 1066 BACKGROUND +61 7 3371 1066 The 17 year old claimant was born on 22 March 1993 at 39 weeks gestation in poor condition, and now suffers from diplegic cerebral palsy (a brain injury effecting contralateral limbs) and learning difficulties. Damages were claimed in clinical negligence, pursuant to section 1 of the Congenital Disabilities (Civil FACSIMILE Liability) Act 1976. 07 3371 7803 On 17 March 1993, the claimant’s mother (Ms Jones) attended Kettering General Hospital for monitoring after complaining of reduced fetal movements. +61 7 3371 7803 Ms Jones was given a cardiotocograph (‘CTG’) scan by Dr Lukshumeyah (‘a Staff Grade Obstetrician’), who later concluded the CTG trace was ‘satisfactory’, and sent Ms Jones home with a kick chart to record fetal movements. E-MAIL The claimant contended that Dr Lukshumeyah negligently interpreted the CTG scan. It was argued that as a result of Dr Lukshumeyah’s ‘satisfactory’ finding, [email protected] no further scans were undertaken, which would have likely shown a similar or worse fetal heart pattern, an indication of hypoxia. As a result of a repeated suspicious scan, steps would have been taken to bring about early delivery on In association with 18 March 1993, which would have prevented the claimant suffering brain damage. McCabe Terrill Lawyers Sydney & Melbourne The medical experts agreed that the damage to the claimant was caused by chronic partial hypoxia, which was the result of placental failure. They also agreed that the claimant was undamaged on 17 March 1993, and that the damage was highly unlikely to have occurred prior to 18 March 1993. Page 1 – HBM Lawyers Health Law Update – August 2011 Liability limited by a scheme approved under professional standards legislation PRINCIPAL ISSUE Mr Jarvis (obstetrician) stated that a failure to recognise the potential seriousness of the The principle issues which the Court had to abnormalities on the CTG fell below the standard address included: to be expected in the circumstances. He argued that it was not acceptable to allow Ms Jones to (1) What were the relevant features of the CTG return home without further assessment, namely trace, in particular, how many and at what time conducting an additional CTG, with delivery of were decelerations shown? the baby if there was any deterioration. In contrast, Mr Porter (obstetrician) believed that (2) Did Dr Lukshumeyah act negligently in the accelerations present in the trace would lead categorising the CTG trace as ‘satisfactory’? the reasonable obstetrician to find the CTG reassuring, and it was therefore acceptable for (3) Had a further scan been performed on 17 Dr Lukshumeyah to send Ms Jones home. March 1993, on the balance of probabilities would it have led to delivery before hypoxia However, given that the heart rate was caused brain damage? decreasing at the end of the scan, both experts agreed that Dr Lukshumeyah should have DECISION continued the C TG for a longer period of time. Dr Lukshumeyah admitted in hindsight it was The Court found that Dr Lukshumeyah was unreasonable not to repeat the trace in the negligent in his failure to carry out a further CTG circumstances. scan on Ms Jones on 17 March 1993. However, the medical evidence showed that the damage The Court looked to the legal tests for suffered by the claimant was most likely to have establishing medical negligence as recognised in occurred between 24 and 48 hours before the Bolam v Friern Hospital Management Committee claimant’s birth on 22 March 1993. [1957] 1 WLR 582, 586, and Bolitho v City of Consequently, it was unlikely that a further scan Hackney Health Authority [1998] AC 232 , 241. on 17 March 1993 would have been suspicious This test states that ‘a clinician (of any discipline) as to lead her obstetrician to deliver her is not to be adjudged negligent if he has acted in prematurely on the 18 March 1993. As such, the a way considered reasonable by a reasonable claimant was unable to establish that but for the body of his peers, provided always that the doctor’s failure to carry out a further scan on 17 thinking that underpins his actions bears logical March 1993 she would not have suffered brain scrutiny’. damage. The claim was dismissed. Justice Slade applied the Bolam/Bolitiho test and REASONING found that, based on the medical evidence, Dr Lukshumeyah acted negligently in describing the Medical evidence was provided to help explain trace as ‘satisfactory’ and in failing to re-start the the CTG scan, and the relevance of any CTG or admit Ms Jones for further scans on 17 decelerations. Upon examining the scan, both March 1993. experts (Mr Jarvis and Mr Porter) agreed that the baseline heart rate was satisfactory. Further, The Court then had to determine whether Dr they accepted the definition of a deceleration in Lukshumeyah’s negligence resulted in the heat rate as being ‘one of more than 15 claimant suffering brain damage. The Court (beats/minute ) lasting for more than 15 seconds’. needed to determine whether a further trace on Two such decelerations were found in the trace 17 March 1993 was likely to have been on Ms Jones on 17 March 1993; one lasting 30 suspicious, or worse than the first. It was agreed seconds, and the other lasting at least 15 that if the further trace had been properly seconds. Four accelerations were also regarded as normal no action to deliver the baby identified. early would have been taken. In determining whether Dr Lukshumeyah was Justice Slade found, on the balance of negligent in his interpretation of the CTG, the probabilities that as the claimant most likely Court looked to what could constitute a normal suffered the damage 24 to 48 hours before her CTG scan in the circumstances. A normal trace birth, it was not established that a second or was defined as one with a baseline of 120 to 160 resumed CTG on 17 March 1993 would have beats/minute with a variability of 5 to 25 been suspicious so as to lead her doctor to beats/minute, with at least 2 accelerations with deliver her on 18 March 1993. As such, the an amplitude of 10 to 15 beats/minute over a 15 claimant was not able to establish that the to 20 minute interval. There should be no negligence of Dr Lukshumeyah was the cause of decelerations, except for the occasional sporadic the damage suffered by her. The claim was mild variety. therefore dismissed. Page 2 – HBM Lawyers Health Law Update – August 2011 Liability limited by a scheme approved under professional standards legislation accordance with that management, and also to things which are not done as a result of a decision which is deliberately taken with regard to the management of the patient’ (at 154). APPEAL BY DR PATEL The Court of Appeal accepted the Royston Cook R v Patel; ex parte A-G (Qld) [2011] definition. It was stated that treatment is not QCA 81 confined to acts which occurred after the commencement of surgery. The appellant’s BACKGROUND conduct in proceeding to perform an operation amounted to the administration of surgical Earlier editions of Health Law Update have treatment to each patient. The trial Judge discussed this high profile prosecution and concluded that the duty imposed by section 288 appeal. On 29 June 2010, Dr Jayant Patel applied both in relation to surgery performed in a (appellant) was found guilty of 4 counts of criminally negligent manner, and in relation to manslaughter and one count of grievous bodily surgery that should not have been performed at harm. The charges arose as a result of surgery all. Undertaking to perform it was, in itself, performed by the appellant whilst employed at criminally negligent. Bundaberg Hospital between May 2003 and December 2004. He was sentenced to 7 years The Court of Appeal highlighted that the for each manslaughter charge and 3 years for interpretation of section 288 put forward by the the offence of grievous bodily harm, to be served appellant would have surprising, and concurrently. inappropriate, results. For example, section 288 would then not apply in relation to a surgeon who GROUNDS OF APPEAL conducted a technically competent operation to remove a patient’s lung, but the surgeon had, by Section 288 Criminal Code 1889 (Qld) criminal negligence, misdiagnosed the patient’s cold as lung cancer. Or, where a surgeon The decision was appealed on a number of proceeded with a technically competent grounds, including whether section 288 of the operation to which a patient consented, despite Criminal Code 1889 (Qld) was properly having formed the opinion during the operation interpreted by the trial Judge. The appellant that it was unnecessary or useless. argued that section 288 only applies in relation to the absence of skill or the failure to use The Court emphasised that the rule that statutes reasonable care in the course of surgery, and it creating offences should be strictly construed does not apply in relation to a surgeon’s decision applies only where the statute remains doubtful to operate or recommend surgery.