December 2018


No damages for hospital care breach

by Resolve editor Kate Tilley and John Reynolds, KT Journalism

* Names have been deleted from this article at the request of the family.

Canberra Hospital breached its duty of care by not properly informing a couple of their unborn child's severe disability but has not been held responsible for her ongoing care.

ACT Supreme Court Justice Michael Elkaim said a woman and her husband should have been told of the potential for their daughter, now seven, to be born with tracheoesophageal fistula (TOF), which would have given them sufficient information to consider termination.

But he rejected the couple's claim for $9 million to care for their daughter until she turned 31, the child's life expectancy, because they could not prove they would have terminated, or been able to terminate, the pregnancy.

Justice Elkaim heard the woman fell pregnant with twins in early 2011. The couple already had two children and the pregnancy was unplanned. The woman had had earlier terminations.

An ultrasound detected abnormalities in the female embryo and Canberra Hospital's Fetal Medicine Unit (FMU) took over the woman’s care.

In July 2011 the parents were told the female twin had a potential heart problem.

They said they would have had a termination of one or both twins, had they known the extent of the abnormalities. They argued they had only been aware of the potential cardiac problem with the female twin.

When the twins were born on 3 November 2011, the daughter was diagnosed with TOF, an abnormal connection between the oesophagus and the trachea. Medical evidence was that her oesophagus ended in a pouch instead of connecting to her stomach and she would need lifelong 24-hour care.

Justice Elkaim said a fundamental issue was “the nature and content of the information provided to the parents and when, if at all, it was provided”.

The husband gave evidence a termination would have been chosen for “any abnormality, whether simple or not simple”.

The couple argued had they been aware of TOF’s potential, they would have terminated the pregnancy in Australia or gone to the USA if Australian law prevented a late-stage abortion.

The hospital agreed it had a duty of care but argued it had told the couple of TOF indications as soon as possible. If Justice Elkaim found the couple had not been properly informed, the hospital argued TOF could not have been used to justify termination because it could not be positively confirmed until birth.

The hospital argued there was no proof the couple would have terminated the pregnancy had they been fully informed.

Justice Elkaim rejected FMU director Meiri Robertson’s claim she told the parents of her concerns and found her recollections were designed to mitigate the hospital’s failures.

But he said the hospital’s breach of duty did not overcome the couple’s difficulty in showing termination would have occurred with the additional knowledge.

There were too many unknowns, including the potential for the parents to change their minds after counselling; difficulties in finding a specialist willing to conduct a late-stage abortion; and the possibility of the woman being refused permission to fly overseas for a termination.

If he were wrong, he would have awarded the couple $1.8 million for their daughter’s care until she turned 18, not 31, because the National Disability Insurance Scheme would provide cover from then.

The court heard the family intended to move to Sydney to be closer to medical intervention and for their daughter to go to school. She had attended an early learning centre at Canberra Grammar School in early 2017 but that was “unpractical and ended after about five weeks”.

There was a requirement a parent be on the premises while the daughter was in class; and difficulties arose with her feeding arrangements. “It was necessary to cease feeding during class attendance and then compensate with extra feeding through the rest of the day or night. This led to vomiting,” Justice Elkaim said.

He said there were “significant concerns” about some of the father’s evidence about economic loss and financial matters.

But it was clear the prenatal indications were not dismal, which contrasted with the “very dismal eventualities”.

Justice Elkaim said medical evidence supported the couple’s contention they should have been informed not only of the suspicion of a TOF but also its possible ramifications for the newborn child. There was an identified heart anomaly, an issue between the doctors about the nature of the heart condition or at least its effects, and evidence of a shortened femur, a small stomach and excess fluid.

“At 22 September 2011, there were enough issues to necessitate a discussion with the parents outlining the meaning of a TOF, the manner in which it could be addressed, and the relevance of [the daughter’s] fetal state to her likely condition after birth,” Justice Elkaim said.

He found note taking and record keeping in FMU was “well below an acceptable standard”; an ethics committee in any Australian state or territory would not have approved a selective or total termination after 22 weeks’ gestation; and a termination would not have been available in Australia outside the public health system.

However, a TOF could not have been conclusively diagnosed before the daughter’s birth but a suspicion of its presence was available.

“Even if a TOF was only a possibility, it was nevertheless a possibility of a real condition of a nature parents would be entitled to be informed about. The [hospital] repeated on [several] occasions that the parents were sophisticated. They were clearly able to understand the information. They were not people who needed to be shielded from ‘bad news’ or complicated information.”

Nouri v Australian Capital Territory [2018] ACTSC 275, 28/09/2018

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