The child, acting through her mother as next friend, alleged that staff at KEMH failed to appropriately monitor the induction of labour and failed to recognise the increasing risk of fetal compromise as labour progressed. The child was ultimately delivered by emergency Caesarean section in a critically compromised condition. She sustained a severe hypoxic-ischaemic brain injury, resulting in profound and permanent neurological impairment.
The Court dismissed the child’s claim and entered judgment in favour of North Metropolitan Health Service.
Although the Court found that North Metropolitan Health Service breached its duty of care by failing to implement a structured plan for the induction and by failing to recognise concerning CTG features, it concluded that these breaches did not cause the child’s injury.
In reaching the conclusion, the Court undertook a detailed counterfactual analysis. Its reasoning took into account the parents’ interactions with the health service through out the pregnancy, the uncertainty in the expert evidence regarding the precise timing of the hypoxic injury, and the sequence of events that would likely have occurred had the identified breaches not occurred. On the balance of probabilities, the Court was not satisfied that different clinical management would have avoided the injury.
Key Takeaways
While grounded in legal reasoning, the decision yields three takeaways that may inform clinical judgment and practice:
An undocumented CTG is, for evidentiary purposes, an unwatched CTG.
The court heard evidence that CTG traces could be viewed from multiple locations, including outside patient rooms, at the bedside and from the nurses’ station. It also heard evidence that CTGs were routinely reviewed during the 5.00pm labour ward handover. However, there was no contemporaneous documentation demonstrating that the CTG had in fact been reviewed or interpreted at the relevant times. In the absence of such documentation, the Court was unable to conclude that appropriate surveillance had occurred. The case reinforces the importance of documenting CTG interpretation.
Whilst a contemporaneous note is better than a retrospective note, a retrospective note will still be valuable where it is accurate.
The Court recognised the limitations of human memory and placed significant weight on contemporaneous clinical records as the most reliable evidence of events. It also observed that records created closer to the time of an event are generally more reliable than accounts prepared later.
However, retrospective documentation is sometimes unavoidable in clinical practice. Such records can still carry evidentiary value, provided they are accurate and clearly identified as retrospective. In this case, however, retrospective entries contained inaccuracies regarding the timing and sequence of key events. Those inconsistencies substantially reduced the weight the Court was prepared to place on the records.
Where contemporaneous documentation is not possible, clinicians should complete retrospective entries as soon as practicable, clearly identify them as retrospective, and ensure they accurately reflect the events being recorded.
Clinicians should document the presence of other persons in the room particularly where their presence is relevant to clinical decision-making
The Court accepted evidence that the child’s father, who was present throughout the induction, questioned clinicians extensively and that this contributed to delays in obtaining the mother’s consent for an emergency Caesarean section.
Although several witnesses gave consistent evidence about the father’s involvement, the contemporaneous clinical records did not document his presence, his interactions with staff or the effect those interactions had on clinical decision-making. As a result, the witnesses were required to rely on recollection to establish those facts.
The judgment highlights the importance of documenting the involvement of family members or other support persons where their conduct is clinically relevant, such as where it affects communication, consent or any other aspects of patient care. Such documentation can provide important contemporaneous evidence if those events later become the subject of scrutiny.
The matter is currently the subject of an appeal.
