Nemes v South Eastern Sydney Local Health District [2025] NSWSC 418 concerned the 2016 birth of a baby boy, Benny, at the Royal Hospital for Women. Benny later developed infantile seizures and global developmental delay. His parents brought proceedings against the hospital, alleging that his injuries were caused by delays in delivery and poor clinical decisions made during labour.
The core allegation was that the hospital should have delivered Benny earlier. The plaintiffs argued that abnormalities on the CTG trace and other clinical features meant labour should have been expedited, and that, had that occurred, Benny would have avoided his injuries. They also alleged failures to prescribe antibiotics, mismanagement of Syntocinon, failure to do a foetal scalp test, and failure to retain the placenta.
The court ordered that each issue be dealt with as a separate question and considered: was there a breach, and if so, did it cause harm?
Expert evidence was, as always, critical.
There was disagreement among the obstetricians, neurologists and radiologists called by each side. Some experts, particularly Dr Schmidt and Professor O’Connor, believed there were signs on the CTG that required earlier action. But others, including Professors Chapman and Keogh, disagreed. It was Keogh’s evidence that ultimately carried the most weight.
Keogh described the CTG as typical of many labour traces – occasionally non-reassuring, but not pathological. He accepted that there were decelerations but emphasised that these resolved and were not signs of acute distress. When concerns did arise in second stage, Keogh considered the obstetric team acted appropriately, escalating care and delivering Benny with forceps promptly and competently.
Keogh’s evidence was that there were no signs that would have required earlier delivery. He was also emphatic that Benny did not suffer a hypoxic ischaemic brain injury. He pointed to the absence of neonatal encephalopathy (no seizures, no abnormal tone, no need for NICU-level support) and said this simply could not be a birth-related brain injury. Other experts, including the neonatal team who managed Benny post-delivery, agreed.
So if Benny’s condition was not due to perinatal asphyxia, what was the cause?
The answer, said the defence experts, was congenital. Benny was later diagnosed with cortical dysplasia – a developmental brain malformation that forms in utero. His seizures began at five months of age. The neurologist and neuroradiologist for the defence explained that his imaging and clinical course fit with a congenital, rather than acquired, abnormality.
One of the plaintiffs’ experts did suggest that signs like feeding difficulty and low Apgars pointed to encephalopathy. But this was rejected. Feeding difficulty alone is not diagnostic of HIE, and Benny’s feeding issues were attributed to maternal anatomical factors. He was assessed thoroughly after birth, and there were no signs of encephalopathy.
The court found no breach of duty – not in the timing of delivery, not in the Syntocinon use, not in the decision to avoid foetal scalp sampling, and not in failing to give prophylactic antibiotics. The care provided was consistent with widely accepted professional standards. Section 5O of the Civil Liability Act 2002 (NSW) applied and the court held that even if there had been a breach, it did not cause Benny’s neurological condition. His problems were due to a congenital brain anomaly, rather than anything that happened during labour.
Key take-outs
- Courts may find in favour clinicians who can point to recognised, peer-supported practices, even where expert opinions differ.
- Section 5O (peer professional opinion) continues to be a strong shield when used properly: it doesn’t require unanimity, just a wide body of support.
- Clinical documentation matters. Notes made by neonatal staff in the hours after birth confirming normal tone, reflexes, and a lack of neurological signs were pivotal.
- The absence of neonatal encephalopathy remains a powerful argument against causation in alleged birth injury cases.
- Courts are cautious about speculative radiological findings and theories of hypoxic injury not matched by clinical presentation.
Ultimately, the court accepted that while Benny tragically suffers from ongoing disabilities, those disabilities were not caused by any error in his delivery.
Judgment was entered for the defendant with costs awarded.
