Medical negligence birth case secures $8 million for profoundly handicapped man

Published 04 Dec 2008

It won’t give him real quality of life – that was denied him at birth because of medical negligence – but a 24-year-old man’s future is more secure, following a decision, this week in the NSW Court of Appeal.

Three judges jointly overturned a decision, made by the Supreme Court in 2007, and awarded Kaled Elayoubi, who suffers from profound cerebral palsy and spastic quadriplegia, a total $8million.

Mr Elayoubi’s brain was deprived of oxygen after his mother’s uterus collapsed during labour depriving his brain of oxygen.

The court found two hospitals and one doctor liable in the case taken up Gerard Malouf & Partners– a case other law firms had turned down as too difficult to win.

But the Court of Appeal found, on Wednesday, in favour of the young man, ruling doctors at Preston and Northcote Community Hospital were negligent in failing to advise his mother that after rare vertical incision caesarean section that, if she were to fall pregnant again with a fourth child, she should not attempt a vaginal delivery. They also ruled medical staff negligent in not recording the rare caesarean procedure.

In 1984, Mrs Kolled fell pregnant again and came under the care of obstetrician Dr Zipser. The court heard Dr Zipser made notes that Mrs Kolled had a previous lower segment caesarean section and booked her in for a ‘trial of labor’.

The Court ruled Dr Zipser and Bankstown Hospital had failed to make enquires with the previous hospital about the nature of Mrs Kolled’s previous pregnancy. And, that seeing a vertical scar on her abdomen, he should have made enquiries with the previous hospital. The failure to do so was ruled as evidence of a lack of reasonable care for the patient.

“Many people look at such a payout and see it as some kind of lottery win,” representing solicitor Christine Beshay said.

“This money, which is being put in a managed trust account, will allow for wheelchair access to his house and railings to better cater for his disability,” Ms Beshay said.

“It is also about his mother, who has been his sole carer for 24 years, getting respite. A trained nurse can now be employed to assist her to get a regular night’s sleep – something so vital to her own wellbeing and something many of us take for granted,” she said.