Hospital patient compensated for loss of her baby in nervous shock claim

PUBLISHED 25 Jul 2014

Our client wanted to make a nervous shock claim against a private hospital (First Defendant) and the obstetrician treating her at the private hospital (Second Defendant). Although our client wanted to be compensated for her loss, she did not want to partake in lengthy and complex legal procedures that could possibly add to her stress. Rather, she wanted to resolve the matter as quickly as possible so that she could move on her with life. For this reason, our client approached Gerard Malouf and Partners. She was aware that our firm has sufficient resources to meet the costly requirements of Court fees and other legal expenses. Further, our no win no fee agreement meant that our client felt she had nothing to lose with going with our firm. Our client’s case was assigned to Christine Beshay, one of our accredited senior solicitors who specialises in medical negligence claims and practices in nervous shock claims. Christine’s experience in nervous shock and the skills she has developed from studying psychology means that she is able to deal with sensitive matters in a prudent, efficient and respectful way. For the duration of the medical negligence claim, our client felt she could trust Christine and that everything would be handled accordingly.

Our client was nearly 40 years of age and had a medical history of having one son born almost 15 years ago by normal vaginal delivery complicated by a prior miscarriage. When our client discovered she was pregnant, she attended to a private hospital (‘First Defendant’) and was under the care of a private obstetrician and gynaecologist (‘Second Defendant’).

When our client was approximately 29 weeks pregnant, she was diagnosed with gestational diabetes but she did not require insulin. When our client was 33 weeks pregnant, she raised concerns to the Second Defendant that her baby was not growing as appropriately when compared to her first pregnancy. The Second Defendant did not take any formal steps to investigate the issue, and instead re-assured the Plaintiff that she had nothing to worry about.

When our client was 39 weeks pregnant, she suffered from a pink vaginal discharge. She was admitted to the Private Hospital with a provisional diagnosis of spontaneous rupture of the membranes. A CTG was performed and our client was told by agents of the First Defendant that the CTG tracing was normal. In actual fact, the CTG tracing was not normal. Our client continued to lose a large amount of blood and started to feel strong contractions. Our client then discharged a large gush of blood, and was taken to theatre for an emergency caesarean. Our client gave birth to a baby girl showing no dysmorphic features. A neonatologist was unsuccessful in attempting to resuscitate the baby and the child was declared to be deceased.

Our client wanted to be compensated by the First and Second Defendants for the nervous shock that she suffered as a result of their negligent conduct. Upon opening the file, Christine requested our client’s medical notes from the relevant hospitals and general practitioners. Christine also arranged for our client to see various expert psychiatrists, obstetricians and gynaecologists so that she was able to determine whether there were reasonable prospects of success. Once Christine was satisfied that she had sufficient evidence necessary to establish a claim against the First and Second Defendants, she began to draft the Statement of Claim and Statement of Particulars.

Our Statement of Claim alleged that the First Defendant owed our client a duty to exercise reasonable skill and care in the provision of medical treatment to her, namely to have exercised reasonable care in the management and CTG monitoring to guard against the foreseeable risk that the foetus would be compromised and to take urgent action. We submitted that the urgent action that would have been taken by a reasonable person would have been to summon the Second Defendant or any other obstetrician on duty to perform an urgent caesarean section as soon as the CTG results were being demonstrated as being abnormal given our client was a high risk patient. We submitted it would be reasonably foreseeable that the foetus would die in utero if such urgent action was not taken, and it was reasonable foreseeable that our client would suffer from psychiatric injury as a result.

We further submitted that the Second Defendant owed our client a duty of care to undertake a thorough analysis of the foetus including referral for regular ultrasounds to determine the measurements of the foetal growth and to place a management plan so as to ensure that an elective caesarean was undertaken at least at 37 weeks so as to guard against the risk of foetal distress and death. Such an event would foreseeably result in our client sustaining psychiatric injury.

Initially, both the First and Second Defendants submitted in Defence that they acted in a manner that was widely accepted in Australia by peer professional opinion as competent professional practice. The First and Second Defendants requested that the parties close the matter and pay their own legal costs.

However, as we obtained more evidence in favour of our case, the strength of our legal argument grew. The Defendants eventually sought to settle the matter outside of Court. This was beneficial to our client in that it would save her time, money and energy, given that Court procedures can be lengthy, costly and emotionally draining. The matter was eventually settled for $110,000.00. Our client was satisfied with this result.

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