I read with interest the recent article in The Guardian provided an update as to the ever escalating rate of cesarean section births in Australia. The article makes all of the well-known [predictable?] arguments in favor of natural delivery.
It is true, the divergence between cesarean section rates in Australia and the World Health Organization’s recommended rate is remarkable.
Unfortunately, what the article does not do (and much of the debate ignores), is a ‘risk-benefit’ comparison of the two options of cesarean versus a natural delivery (in other than high-risk pregnancies). The truth is that there are risks involved with either option. While public perception in this century tends to ignore this; the simple fact is that childbirth is not [yet] a risk-free process, whichever mode of delivery is preferred.
The most interesting issue, not tackled by the article, is why the divergence of rates?
This must result from the relative weighting applied to the pros and cons of the two alternatives, by contemporary Australian society [and mothers]. Obviously, such weighting diverges from the weighting the WHO considers ‘appropriate’.  The really interesting question is what are the factors leading women to increasingly frequently choose caesarian as their mode of preference?
The law in Australia has for a long time (and in the UK more recently) recognized that healthcare choices, including mode of delivery, are for the patient to make, on a properly informed basis. They are not to be dictated by the health professional, the WHO, or population-based policy, at a government level. This is complicated by the fact that the mother is actually making a choice for two rather than one person. An intriguing (near unique) legal issue is the question of the mother’s obligations when making such choice to weigh the competing pros and cons from her and her child’s perspective. It is clear that in some respects, the unborn child’s interests may point towards one option while the mother’s preference may lie elsewhere.
The “appropriate” rate for cesarean sections in Australia is to be determined by the rate at which properly informed mothers make their choice, one way or the other.
If there is concern at such rate, the ‘answer,’ if there is one, is to better educate parents, to ‘assist’ them to make sensible decisions as to the weight to be attached to the respective pros and cons of one mode of delivery and the other. To do so, once again, requires that this information be clear. To me at least, this is not yet the case in this debate.

 On 14 December 2012 the Court of Appeal upheld an appeal in the claim brought by Tahlia Burns against King Edward Memorial Hospital (formally the Minister for Health), alleging negligent obstetric care at the time of her birth in April 2004.

Tahlia’s claim had previously been dismissed by the District Court as being out of time (being commenced more than 6 years after her birth) + crucially, because she was born before changes to the time limit for claims law (the Limitation Act 2005 ("LA 2005")), not a claim in which any extension of time could be allowed.

The Court of Appeal overturned this decision concluding that although born before such change in the Law, nonetheless, she could rely upon the changes it made, permitting extensions of time for claims. This was based on the Court of Appeal’s interpretation of section 7 of the LA 2005, which they confirmed specifically gave the power for such extensions of time, even in birth cases for children born before such Act came into force (so retrospectively).

Interestingly, one member of the Court, Justice Pullin went further and appears to have supported the power to extend time in cases in which the 6 year limitation period that applied in cases against public hospitals before the LA 2005, had already expired at the time the LA 2005 came into force (November 2005). In other words, claims which the public hospitals (and their insurers) would have assumed to be forever lost + out of time. As I have commented previously, for many years it had been recognised that this 6 year time limit for childrens’ claims relating to birth injury could be very unfair indeed.

It will be interesting to see whether Justice Pullin’s ‘invitation’ is accepted and any older obstetric claims (pre Nov 99 birth dates) are now sought to be brought with a request for an extension of time.

it is important to appreciate that birth injury cases are a special category of cases + this power to seek an extension does not retrospectively apply to other cases (medical or otherwise).

 Further to my earlier post, time is now extremely short for birth injury claims, for children born before Nov 2005.

As I have previously posted, the Limitation Act 2005, retrospectively (and without any publicity) shortened the time for claims relating to alleged negligent obstetric (or midwifrey) care, prior to its introduction in November 2005.

Before this legislation, children injured due to negligent obstetric or midwifrey care had until age 24 in most cases to bring claim (there is an important exception, in the case of claims against public hospitals or other public health services).

The time for such claims was shortened, so that it runs out in less than 10 days time… on 15 Nov 2011! This does not apply to other medical claims, only birth injury claims.

Anecdotally, there are very few people (even lawyers) who are aware of this limitation period shortening.

If you have such a claim – or are handling it for a client, the time for action is now……

As most lawyers practising in med neg in Perth will know, a specific provision was inserted in the 2005 Limitation Act, setting new time limits for child-birth injury claims in Western Australia.

Apart form setting a new scheme for children born after 2005, the then labour government did medical insurers a very great favour, by effectively retrospectively shortening, in some cases, enormously, the time for claims for many children born before Nov 05.

Apart from claims against public hospitals, for whom special time limits were set before the 2005 legislation, generally children (and their parents/guardians) prior to the Nov 2005 changes to the Law, had a period of 24 years (period to age 18 + 6 years from then) within which to make claim. This was the timeframe for a claim against a private obstetrician, midwife or hospital.

By section 7(2) of the Limitation Act 2005, for children born before November 2005, this period was shortened to a maximum of 6 years from Nov 2005 (so to Nov 2011). Theoretically, a child born in October 2005 therefore had only 6 years + 1 month to bring claim within time. How many 6 year olds do you know who can initiate and manage complex medical negligence litigation!

There is some scope for extensions of time (no doubt a fertile area of litigation in the near future) + potential for arguments whether this shortening of time applies to cases alleging negligence in antenatal care prior to delivery (see the odd definition of ’cause of action (childbirth)’) and when a cause of action is now taken to accrue (and so time start), but as a general rule, if you have an interest in a possible medical claim relating to a child born before Nov 05, you now have only 11 months to investigate + initiate claim…better get cracking!

 In this decision delivered by Judge Stevenson of the District Court on 23 December 2009, Judge Stevenson concluded that he had no power to extend the time for commencement of a claim under the 2005 Limitation Act, in relation to a child born prior to such Act’s commencement.

The case, in which I am involved on behalf of the child Patrick, relates to alleged negligence on the part of King Edward Memorial Hospital in Patrick’s mother’s obstetric care in November 1996. Patrick suffers from cerebral palsy which it is alleged arose because of the shortcomings in care.  The allegations of shortcomings of care and that this caused Patrick’s cerebral palsy are supported by compelling expert opinions from independent obstetricians, neonatologists, paediatric neurologists and otherwise.  Uncontested medical evidence put before the court spelt out Patrick’s significant disability as a consequence of his cerebral palsy.

Prior to November 2005 the law in Western Australia provided that any medical negligence claim against a public hospital alleging negligent care causing birth injury had to be commenced, at the very latest (and this time limit required either the hospital’s consent or permission from the court) by the time the child turned six years of age (section 47A Limitation Act 1935).  Such time-limit self evidently could result in gross unfairness and injustice, and for a substantial period of time has been the subject of criticism by judges, law reform bodies and others.  No equivalent applied to private hospitals or private patients in public hospitals (at least in so far as claim was brought against the private obstetrician), against whom the time limit was generally the child’s 24th birthday.

In this case it was argued on behalf of Patrick that changes to the limitation laws which came into effect in November 2005 should permit the court a discretion to allow claim to be brought outside the six-year time limit, if warranted as a matter of justice.

As stated at the outset, Judge Stevenson, whilst expressing obvious disappointment at such conclusion, determined that this was not the case and in effect, the changes to the limitation period laws in 2005 were only of prospective effect and did not remedy the injustice arising for children born prior to November 2005 (when such laws came into effect).

An appeal has been commenced to seek the Court of Appeal’s decision in relation to this important issue.

The situation specifically with regard to Patrick’s case is complicated further by the fact that the failure to begin a claim within the six-year time limit required was caused by the hospital’s failure prior to this deadline, to disclose a critical piece of evidence in relation to Patrick’s delivery and his mother’s obstetric care (the CTG trace relating to such labour).  As Judge Stevenson mentions in passing in his decision, apart from further accentuating the injustice of the six-year time limit, this potentially gives rise to complex legal issues in terms of the hospital’s capacity to rely upon such six-year time limit as a defence to the claim.

What is assured is that Judge Stevenson’s decision is by no means the end of this matter.

Reasonably often, clients consult us following the death of a loved one, resulting from apparent negligent medical care.

I have spoken to a potential new client this week, traumatised by the tragic death of their child as a consequence of what seems from the client’s account to be clearly negligent care on the part of a GP (who failed to take any action despite complaints that the child had vision disturbance and excruciating headaches for weeks prior to their death).

In Australia, in such circumstances, claim can be brought by the surviving parent/child/relative, but ‘only‘ for the psychological injury suffered by them.  No claim can be brought for the suffering and death per se of the victim of the negligent care.  This is different from the US, though some strange rules appear to apply there (for example see here).

Sadly, the most common situation in which I have seen such claims, concerns negligent obstetric care, leading to the death during childbirth (or in utero) of the baby.  In such claims, the parents’ entitlement to compensation for the loss of their child, if it can be shown that the obstetric care was negligent, is limited to compensation for their psychological or psychiatric suffering.  No claim exists for the loss of the child in itself.  No claim can be made for the loss of an opportunity for life by such child.

Further, no claim can be brought at all if all the parents suffer is "normal grief" (whatever this may mean!) falling short of amounting to a psychologically or psychiatrically diagnosable condition.  This is an entirely illogical (and utterly absurd in practice) restriction upon those who can claim.  It is justified on (dodgy) policy grounds of limiting the scope of people able to bring claim.

Clients are often dismayed to hear of these restrictions (as was my client this week), which mean that where death of a child results from negligent care, in most cases, entitlements to compensation will be modest.  For now (and there is no sign of any inclination for the courts to expand the scope or extent of liability at present), unfortunately these limits will however continue to apply, whether fair, just or not.

It was interesting to read the Sunday Times newspaper’s, front page article a week ago in relation to the unnamed obstetrician/ gynaecologist recently struck off from practise in Western Australia. 

I was particularly interested to read the newspapers’ editorial column concerning their strong view that the ongoing suppression order, prohibiting publication of the particular Doctors details, was inappropriate. 

There is a clear public interest in the broader community being made aware of the identity of the relevant practitioner (or other doctors in such cases).  This has 2 primary aspects:

  • an entitlement on the part of former and prospective patients to be aware of the conduct of this practitioner.
  • as a strong deterrent against similar conduct by other health professionals (the “shame” factor) 

Clearly from the report there were 2 factors tempering this, in this particular case.  These no doubt lead to the relevant suppression order being made by Judge Chaney:

1. Firstly, it is clear that though doubts may exist concerning such opinions, there was evidence before the Tribunal that the relevant Doctor was psychiatric fragile and at some risk of suicide or self harm in the event that his name was published. 

As no doubt emphasised by his representative before the Tribunal, the potential for such harm if the suppression order was lifted would seem a very powerful consideration indeed.

2. Secondly, it is clearly the fact that the relevant Doctor is no longer practising in Western Australia or elsewhere in Australia. As such, there is no necessary concern for the Tribunal as to potential harm to future patients coming under his care. 

There is also some suggestion that former patients of the practitioner had been informed of the allegations brought which further ameliorates this consideration.  

In these circumstances, I can well understand Judge Chaney’s conclusions, unpopular though they may be. Certainly though, it would be hoped that once "risk" to the Doctor’s health has reduced, his details will be released.