Background

At 8:25am on 24 August 2009, Cooper’s mother was induced and progressed normally until she reached full dilatation at 8:40pm. There had been no recorded foetal head movements from 4:30pm, and there was clinical evidence of disproportion between the foetal head and maternal pelvis.

At 8:45pm she had entered the second stage of labour. She was pushing with each contraction and there was no sign of foetal distress.

At 9:12pm the General Practitioner Obstetrician (GPO) made his first pull with the Kiwi vacuum cup. The first two pulls advanced the foetal head, but the third was ineffective. A Silastic vacuum cup was applied with the third pull delivering Cooper’s head at 9:38pm, which then ‘turtle-necked’ back into the perineum.

At 9:42pm, Cooper was born floppy, without breath or movement. The Plaintiff argued that the delivery was negligent and caused Cooper’s injuries.

Key Points

How is the standard of care assessed?

The Court discussed the application of the professional peers defence in section 5PB of the Civil Liability Act WA (see [327]-[358]). The Plaintiff had to prove that the GPO’s acts or omissions:

  1. were not in accordance with a practice that, at the time, was widely accepted by his peers as competent professional practice (s 5PB); and
  2. carried risks that were foreseeable, not insignificant, and that a reasonable person in the defendant’s position would have taken precautions against (considering the probability and seriousness of the harm, the burden of taking precautions, and the social utility of the act or omission) (s5B).

What is considered widely accepted?

A practice is widely accepted if a large group of the professional’s peers regard it as competent medical practice. A professional peer is someone who is charged with the general responsibility of making the decision under scrutiny.

At [361], His Honour endorsed the following comment:

In a situation where there might be two or more schools of thought, or two or more treatment options, both or all of which might be accepted as representing competent medical practice, and competing factors to be weighed against each other as part of exercising clinical judgment, then each option is capable of being widely accepted as representing competent medical practice, although individual practitioners might choose one over the other, consistently or from time to time, and debate that choice.

Conclusion

The GPO breached his duty by:

  1. attempting an instrumental delivery whilst the foetus was mid-cavity (see [386]-[394])
  2. attempting an instrumental delivery without proper indication (see [395]-[440])
  3. failing to undertake a trial of instrumental delivery in an operating theatre set up for an emergency caesarean section (see 441]-[497]); and
  4. failing to abandon the vacuum delivery after 3 pulls when birth was not imminent (see [498]-[543]).

Cooper suffered various injuries including stage 2 hypoxic ischaemic encephalopathy causing neurological and developmental deficiencies. He was awarded $3,972,435 (exclusive of administrative fees) in damages.

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