The New South Wales Supreme Court has awarded a patient $1,785,498 in compensation following an admission by the Murrumbidgee Local Area Health Network (MLAHN) that it failed to properly monitor the patient’s labour, antenatal period and delivery, resulting in the death of the patient’s child soon after birth.1

Background

In 2010, the patient fell pregnant and required daily CTG monitoring following a severe attack of gastroenteritis.

On 14 May 2010, following a series of tests, a dispute arose between a medical practitioner and a midwife as to whether the patient could leave the hospital. Ultimately, the patient left the hospital, returning the following day for a further CTG. The patient subsequently came to an emergency caesarean section on the afternoon of 15 May 2010. Unfortunately, the baby did not survive, passing away shortly after birth.

Subsequently, the patient cried uncontrollably for days and commenced abusing alcohol. She was later admitted to St John of God Hospital for professional help, ceasing her reliance on alcohol in October 2012.

The patient subsequently attempted to re-enter the workforce but was unable to sustain long term employment. Additionally, the patient’s mental condition placed significant pressure on her marriage resulting in her husband attending to the majority of the household and domestic tasks.

Decision

The MLAHN admitted liability, resulting in only an assessment dispute at trial.

The Court was provided medical opinions from the patient’s treating psychiatrist and a number of examining psychiatrists and psychologists. The experts were generally in agreement that the patient would require ongoing inpatient and outpatient psychiatric admissions and counselling aimed at dealing with trauma reactions for desensitisation/exposure treatment.

Interestingly and relevant to other nervous shock proceedings, the Court gave consideration to arguments made by the defendants that the patient’s condition and prognosis were likely to improve in light of the beneficial effect of the completion of the litigation.

The Court acknowledged that this suggestion was not novel in this type of litigation and had received general support from the examining experts. It was specifically noted by one of the patient’s experts that the “failure of resolution of her ongoing legal issues … has compounded her difficulties”.2 The patient herself also gave evidence under cross examination that the litigation and its adjournments had caused her considerable distress.

The Court concluded that the proceeding was one factor in the cause of the patient’s distressing medical condition and, whilst the resolution of the proceeding would undoubtedly be beneficial to her, it would not make a significant difference to her suffering.

The MLAHN contended that the patient’s condition should improve and would be amenable to psychiatric, psychological and pharmacological regimes, whereas the patient argued that her condition would not improve over time and that she was not amenable to treatment due to the severity of her condition as evidenced by her limited progression to date. The patient also called the evidence of a neurosurgeon to argue that the alterations to her neural pathway were irreversible and would entirely delimit any further recovery.

While the Court was unable to accept the expert’s evidence, as the relevant neuroimaging which would underpin such an opinion had not been undertaken, it did ultimately favour the patient’s arguments that she had little real or tangible prospect of improvement.

The Court award the patient approximately $1.78 million plus costs.

Comment

Although this decision related solely to assessment of damages and was governed by the relevant New South Wales legislation, it provides a useful guide to hospitals and their insurers of the significant damages that can be awarded in claims of nervous shock, especially where the death of a child is involved. It also gives an indication of the level of evidence required to prove or disprove the chronicity of a psychiatric condition.

The decision raises interesting questions about the value of neuroimaging studies to identify neurobiological changes in the brain when determining the chronicity of severe post-traumatic stress disorder. For cases involving the development of post-traumatic stress disorder where the patient’s improvement is hotly contested, hospitals may need to consider neuroimaging studies to assist in the determination of this point.