Australia: Obstetrics and Women’s Health

Summary of recent cases
Last Updated: 7 April 2010
Article by Alison Choy Flannigan and Kerry Hogan-Ross

There have been a number of recent cases relevant to obstetrics and women's health. This article briefly summarises some of the relevant cases and draws from them lessons to be learned.


In medical malpractice law 'wrongful life' cases are different from 'wrongful birth' cases.

In 'wrongful life' cases, the courts have been reluctant to award damages for the loss of opportunity to terminate a pregnancy (for example, when failing to inform a patient that she had rubella during pregnancy) because choosing whether it is better to have a 'state of non-existence' compared to a 'life with disabilities' or to be a 'comparable healthy person' would be impossible and implicitly denigrates the value of human existence: Harriton v Stephens [2006] HCA 15.

However, an action can be brought for 'wrongful birth' when a child is born (healthy or not) due to the consequence of the negligence of a doctor, for example, a failed sterilisation and a failure to advise of the possibility that sterilisation may not be effective. Damages can include a sum for the past and future costs associated with raising and maintaining the child until the child reaches the age of 18: Cattanach v Melchior [2003] HCA 38.

In the recent Supreme Court of the Australian Capital Territory, Court of Appeal case of G and M v Armellin [2009] ACTCA 6 (G and M v Armellin), G only wanted to have one embryo implanted during an in vitro fertilisation procedure with the Canberra Fertility Centre and told Dr Armellin of her wish that she did not want a multiple pregnancy. Unfortunately the instruction was not communicated to the embryologist who transferred two embryos. The default procedure of the clinic was to transfer two embryos. They claimed that Dr Armellin was negligent in then supervising the implantation of two embryos into G's uterus. G gave birth to twins.

In this case Dr Armellin told G that she could tell them up to the point of transfer how many embryos were to be transferred and Dr Armellin failed to confirm the number of embryos with fertility staff.

G and M v Armellin indicates the need to have clear communication between the doctor and the patient and also clear communication between the doctor and the facility. The signed consent form referred to: 'Embryo transfer of one or two embryos', so sole reliance on a signed consent form is insufficient in the context of the discussions which took place.

The case also illustrates why 'time out' is so important. It was usual for Dr Armellin, the embryologist and the patient to meet and make a last minute check just prior to the implementation, however, this step was missed.


In the case of Elayoubi bhnf Kolled v Zipser [2008] NSWCA 335, the New South Wales Court of Appeal considered the liability of two hospitals and an obstetrician for the catastrophic birth injuries suffered by the Plaintiff when he was born in 1984. The Plaintiff was the fifth child of Mrs Kolled, but the origin of the birth injuries lay in the birth of her previous child six years earlier.

Mrs Kolled had her fourth child in 1978 by caesarean section at Preston Hospital in Victoria. This involved an incision encroaching into the upper uterine segment which put her at increased risk of uterine rupture in any subsequent labour. This meant she needed to be advised to never again attempt vaginal delivery. By the time the case came to trial in 2006, the obstetric records had been legitimately destroyed. The Court at first instance found that the hospital failed to record details of the operation and advise her of the risks she faced if she were to have another child by vaginal delivery. The Court of Appeal upheld the finding that the mother was not advised of the risks of having a subsequent vaginal delivery. However, it found that the hospital would have appropriately recorded the nature of the operation.

Mrs Kolled fell pregnant again and Dr Zipser, a visiting medical officer at Bankstown Hospital was responsible for her antenatal care. Neither Dr Zipser nor Bankstown Hospital inquired of Preston Hospital about the nature of her previous pregnancy. The Court of Appeal, overturning the previous decision, found that had an inquiry been made, the records would have disclosed the previous operation.

Mrs Kolled's fifth child was deprived of oxygen during birth because Mrs Kolled's uterus ruptured and as a result the child suffers from spastic quadriplegia and intellectual disability. Preston Hospital was found 1/3 liable for failing to advise Mrs Kolled. Dr Zipser and Bankstown Hospital were found liable for the remaining 2/3 for failing to make the relevant inquiry of Preston Hospital.

In making the apportionment finding, the Court commented:

'The failure on the part of Bankstown Hospital was in not writing to the Preston Hospital in 1984 to inquire as to the nature of the procedure undertaken. Although it might well be sufficient to give a clear warning to a mother, the importance of accurate communication between professionals is of greater importance. This is recognised in the universal obligation for doctors to record information which may be material to future medical events. Because people tend to be mobile, it is both expected and required that inquiry and communication occur between those retaining records and those involved in future care and treatment. Because appropriate steps were taken at the Preston Hospital, but were not taken by Bankstown Hospital, Bankstown Hospital must bear primary responsibility for the loss. There is always a risk that communications with a lay person will be misunderstood to some degree and that recollections will fade over time. In these circumstances, communication with the patient should be taken as a necessary but lesser obligation.'

This case is, of course, a reminder to medical practitioners to warn patients of future risks associated with their current medical treatment. However, it also warns practitioners of the need to identify circumstances where it is vital to enquire of previous treating practitioners and hospitals to ensure a full medical history is obtained.

Emergency Room Miscarriage

On 25 September 2007 Jana Horska miscarried in the toilet of Royal North Shore Hospital's emergency room. Jana was triaged as Category 4, that is, a patient with a potentially serious condition, to be treated within one hour. The level of activity in the Emergency Department that night was extremely high. Despite complaining of acute pain, she did not receive medical treatment within one hour and miscarried after two hours of acute pain. Her partner Mark Dreyer complained to emergency staff but was repeatedly told to sit down and wait. His wife had already had a miscarriage that year. This incident received widespread media coverage and was one of the incidents which resulted in two inquiries and the Final Report of the Special Commission of Inquiry into Acute Care Services in NSW Public Hospitals by Peter Garling SC (known as the Garling Report).

Professors Clifford Hughes and William Waters investigated the case and recommended a new protocol for the treatment of women presenting at Emergency Departments with threatened miscarriages. The recommendations included:

  • Women who arrive at hospital displaying signs of a complication in early pregnancy, and whose condition is assessed as unstable should be placed in a higher triage category.
  • The Emergency Department at Royal North Shore Hospital should be changed to improve the experience of patients: changes to the physical environment of the waiting room, improvements in communication skills of frontline triage nurses and the provision of written information to patients on how emergency departments work. These recommendations could be applied to hospitals beyond the Emergency Department.

© DLA Phillips Fox

DLA Phillips Fox is one of the largest legal firms in Australasia and a member of DLA Piper Group, an alliance of independent legal practices. It is a separate and distinct legal entity. For more information visit

This publication is intended as a first point of reference and should not be relied on as a substitute for professional advice. Specialist legal advice should always be sought in relation to any particular circumstances.

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