Australia: Duty of care: Elayoubi BHNF Kolled v Zipser & 2 Ors

The Facts

The plaintiff was born on 13 October 1984 at the Bankstown Hospital. He was the fifth child born to his mother (TK). The plaintiff suffers from spastic quadriplegia and an intellectual disability as a result of deprivation of oxygen during his birth relating to a uterine rupture.

TK's first 3 children were delivered vaginally without complications. On 31 October 1978 TK gave birth to her fourth child at the Preston and Northcote Community Hospital (PANCH) in Victoria. There were complications with this pregnancy and birth, and it was necessary for TK to deliver that child by caesarean. TK was left with an obvious and permanent vertical scar on her abdomen.

The plaintiff alleged that the way the caesarean section had been performed, by a vertical incision which involved the upper segment of the uterus, created an increased risk of uterine rupture in the event of a subsequent pregnancy, and that that risk became a reality shortly before the plaintiff's birth.

The first defendant, Dr Zipser (the doctor), was sued in his capacity as a specialist obstetrician/gynaecologist for not providing reasonable care to TK when she attended on him on 31 July 1984 for antenatal care. The second defendant, the South Western Sydney Area Health Service (the Health Service), was sued as the organisation liable for the control and management of the Bankstown Hospital. The plaintiff alleged that the Bankstown Hospital was negligent in relation to the antenatal treatment it provided to TK.

The third defendant (Northern Health) was sued as the body responsible for the operation, control and management of PANCH. The plaintiff alleged that PANCH was negligent in failing to advise and warn TK of the high risk implications of the caesarean section she had undergone in 1978.

Each of the defendants accepted that they owed the plaintiff a duty of care. However, each denied that they had breached those duties, and in the alternative argued if they had breached those duties, then such breaches were not causative of the plaintiff's condition.

The Decision

The court heard evidence from various medical experts regarding the nature of caesareans. A vertical incision into the upper segment of the pregnant uterus creates a risk of rupture in subsequent pregnancies. That risk arises both before and after the commencement of labour, with approximately 50% of such ruptures occurring before the commencement of labour. A vertical incision into the lower segment creates a risk of rupture in the event of a subsequent pregnancy, but of a lesser degree than that arising from a vertical incision into the upper segment. If an incision into the lower segment extends vertically into the upper segment, the risk of a subsequent rupture of the uterus is the same as for a vertical incision into the upper segment section. The degree of risk of rupture of the uterus following a lower segment caesarean section in 1984 was 1 to 2%. The risk of rupture of the uterus following an upper segment caesarean section in 1984 was 2 to 5%.

Liability of PANCH

The court considered whether appropriate advice and warnings in respect of the caesarean and its consequences were given by PANCH to TK, and if there was a failure to provide such advice and warnings, whether that failure was causative of the harm suffered by the plaintiff.

The court held that the probabilities favoured the conclusion that the caesarean section in 1978 involved a vertical incision into the lower segment which extended vertically into the upper segment. It also held that the treating surgeon would have been aware that his incision had encroached upon the upper segment and that accordingly, an appropriate warning was required. The surgeon did not give evidence and the court inferred that the evidence the surgeon would have given, had he been called, would not have assisted PANCH's case. The court held that TK was not given adequate advice or warnings by PANCH as to the risks consequent upon the caesarean that was carried out, but that the breach of duty was not causative of the loss suffered by the plaintiff.

Liability of the doctor and the Health Service

The plaintiff alleged that the doctor and the Health Service had failed to identify that TK had previously undergone a caesarean involving the upper segment of the uterus, failed to take any or any sufficient notice of the vertical scar on her abdomen, and certified that she was fit for a trial of labour without sufficient information about her previous obstetric history.

The doctor had no recollection of his consultations with TK. Further, there was no documentation from PANCH or the referring GP in relation to the previous pregnancy. The referring letter from the GP did not even mention the previous caesarean. Accordingly, the doctor's evidence was based on his usual practice and the antenatal records. The doctor's practice in 1984 was to consider the original reason for a caesarean. The recorded reason in this case was 'placenta previa' which is a condition that occurs during pregnancy when the placenta is abnormally placed, and partially or totally covers the cervix. The doctor said that he would have confirmed with TK that this was the reason for the caesarean, and would have told her that she had the choice of trying for a vaginal delivery or having a repeat elective caesarean for the plaintiff's birth. The doctor did not regard a placenta previa as an indication of an upper segment caesarean. In his opinion, the standard procedure for a placenta previa was a lower segment caesarean section. The court considered the expert evidence in relation to this issue, and concluded that it was not unreasonable for the doctor to discount the presence of a placenta previa as an indication of a caesarean involving the upper segment and accordingly, he did not act unreasonably by contemplating a trial of labour, and his action in this regard was not evidence of an absence of reasonable care. Further, the doctor did not gain any additional information subsequent to the antenatal consultation with TK to alter this assessment prior to the plaintiff's birth.

The court held, however, that either the doctor or the Health Service should have written to PANCH seeking details of the previous caesarean, and the failure to take this step indicated a lack of reasonable care. The court went on to hold that if such details had been requested, it is likely that PANCH would have advised the doctor or the Health Service that TK had undergone a lower segment caesarean (without reference to theupper segment encroachment), as it would likely have been noted as such in PANCH's records. Accordingly, the court held that the failure to request TK's records from PANCH was not causative of the plaintiff's condition.

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