Anne Shortall - Slater & Gordon - Recent Coroners Court Cases & Patterson v Khalsa


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Anne Shortall delivered the presentation at the 2014 Obstetric Malpractice Conference.

The Obstetric Malpractice Conference is only national conference for the prevention, management and defense of obstetric negligence claims.

For more information about the event, please visit:

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Anne Shortall - Slater & Gordon - Recent Coroners Court Cases & Patterson v Khalsa

  1. 1. Obstetric Malpractice Conference 2014! Anne Shortall- Principal Lawyer Medical Law!
  2. 2. ©Slater&GordonLimited2012 2! Inquests relating to home birth midwife Lisa Barrett! Nursing & Midwifery Board of Australia v Barrett [2014] SAHPT 1! The respondent was a registered midwife until she voluntarily surrendered her registration - Complainant alleged the respondent carried out midwifery services in such a way that her conduct was substantially below the standard reasonably expected of a midwife of an equivalent level of training or experience - Tragically several infants died - Despite surrendering her registration the respondent continues to carry out midwifery services - Held: The respondent’s conduct referred to in the complaint was professional misconduct - Respondent reprimanded in the strongest terms - The respondent is to pay a fine of $20,000 to the Nursing and Midwifery Board of Australia within 60 days of the date of publication of these reasons - The respondent is permanently prohibited from providing midwifery services - The respondent to pay the complainant’s costs - Ss 19(7), 40 Schedule 1, 41(b), 138, 196 Health Practitioner Regulation National Law (South Australia) Act 2010.! Lisa Barrett outside the Coroners Court, where she refused to answer questions in fear it may incriminate herself. Source: The Advertiser!
  3. 3. ©Slater&GordonLimited2012 3! Inquests relating to home birth midwife Lisa Barrett! •  Lisa Barrett was registered to practice as a midwife from 17 January 2003 in Australia until she surrendered her registration on 28 January 2011! •  She commenced her home birthing practice in 2005! •  She had previously practised as a midwife in the United Kingdom since 1990!
  4. 4. ©Slater&GordonLimited2012 4! First Incident - Tate Spencer- Koch! •  Between 25 April 2007 and 16 July 2007 LB provided antenatal care and managed the labour of S in South Australia! •  This was S’s second pregnancy. Her first child had been born at the Women and Children’s Hospital. She suffered pre-eclampsia and required a caesarean as her labour failed to progress beyond 3cm of cervical dilatation! •  As a result, a live baby weighing 3950g was delivered. S said the whole experience upset her a lot and she was really shaken by it all.! •  S decided she wanted a home birth and contacted the Midwives Association and Lisa Barrett was recommended! •  S was booked in at the WCH and she contacted the hospital and advised that she was seeing a private midwife but she did not cancel the booking at the hospital as she wanted a backup plan if she did ultimately require hospital admission!
  5. 5. ©Slater&GordonLimited2012 5! First Incident - Tate Spencer- Koch cont.! •  S had a BMI of 37 and Professor Roger Pepperell who provided an opinion to the Coroner indicated that her weight resulted in an increased risk of a very large baby, pre eclampsia, problems in labour, obstructed labour, problems at the time of delivery and post partum haemorrhage! •  Ultimately shoulder dystocia occurred and the delivery did not occur until 20 minutes after the baby’s head was delivered resulting in severe hypoxic brain injury. At 5.10am the head crowned, at 5.20am the head was out! •  At 5.30am an ambulance was called. The shoulders were delivered at home prior to the ambulance arriving at 5.40am but resuscitation was unsuccessful. Ms Barrett gave evidence at the Coroners Court that she had performed the McRoberts manoeuvre with the help of a friend of S, a junior student midwife, who was at the delivery. Professor Pepperell indicated two qualified persons are required to conduct the manoeuvre properly!
  6. 6. ©Slater&GordonLimited2012 6! First Incident - Tate Spencer- Koch cont.! •  Ms Barrett gave evidence at the Coroner’s Inquest that she did not advise S of these extra risk factors related to her obesity or the extra risk factors relating to a VBAC delivery. She refused to accept that there would have been a significantly better chance of the baby surviving in a hospital setting! •  The Australian College of Midwives National Midwifery Guidelines for Consultation and Referral January 2004 and the Policy for Planned Birth at Home in South Australia 4 July 2007 were referred to by the Board. The Policy indicated that conditions that preclude a home birth are a previous history of caesarean section and a BMI greater than 35! •  Catherine Adams Senior Clinical Midwife indicated in her report that she was critical of the lack of documentation about considerations in relation to the previous caesarean, plans for the home birth and reasons for transfer to hospital. Given the lack of documentation the degree to which S made an informed decision cannot be measured!
  7. 7. ©Slater&GordonLimited2012 7! Second Incident- Jahli Jean Hobbs! •  Lisa Barrett provided antenatal care and management of H’s labour from 15 January 2009 to 26 April 2009. H’s baby girl died and an Inquest was held! •  H had her first baby at Flinders Medical Centre by caesarean section. The baby weighed 3906g. The reason for the caesarean was failure of the labour to progress and foetal distress! •  H lived on a remote island with difficult access to hospital facilities. She initially saw her GP who advised her as to the complications of a VBAC delivery. She made the decision to have a home birth but did not advise her GP of this and did not receive any medical advice in relation to the advantages and disadvantages of a home birth ! •  It became clear that the baby was in breech position. The plan was that if necessary she would get in the car and go to Victor Harbour Hospital. H said that her baby’s death was ‘one of those unexplained things that happen in life’ and she would definitely have a home birth again!
  8. 8. ©Slater&GordonLimited2012 8! Second Incident- Jahli Jean Hobbs cont.! •  The time between the baby’s first foot being delivered and the entire delivery was 15 minutes and Professor Pepperell indicated that such a time frame was normal. He indicated that it was essential to continuously monitor the heart rate of the baby or less satisfactorily by use of a Doppler after every contraction. If a placenta is separated for more than 16 minutes then the baby will die. If there was a problem with the heart rate then delivery needs to be expedited by way of a breech extraction. The baby was born at 7.47 am with the placenta and the last Doppler monitoring was performed at 7.23 am! •  The Coroner indicated in his findings that there were various guidelines suggesting that a known breech presentation and delivery should not be attempted in a home birth and that H was at the highest level of risk as set out in the guidelines and this mandated that the midwife is to refer the mother to a medical practitioner. There was a complete failure on the part of the respondent to adhere to accepted standards for midwives!
  9. 9. ©Slater&GordonLimited2012 9! Second Incident- Jahli Jean Hobbs cont.! Statement of Ms Catherine Adams Senior Clinical Midwife:! “For midwives working within the above mentioned frameworks (Australian College of Midwives (2008) National Midwifery Guidelines for Consultation and Referral (2nd Edition) and Government of South Australia (2007) Policy for Planned Birth at Home in South Australia), the woman would have been advised to birth in the hospital for both indicators of previous caesarean section and breech presentation.! As defined by the International Confederation of Midwives (2005) the definition of a midwife and the scope practice as the primary carer includes ‘promotion of normal birth, the detection of complications in mother and child, the accessing of medical care or other appropriate assistance and the carrying out of emergency measures’. In my opinion a VBAC with a breech presentation would be outside the scope of practice of a midwife in the home setting and should be in collaboration with an obstetric medical officer. ”!
  10. 10. ©Slater&GordonLimited2012 10! Second Incident- Jahli Jean Hobbs cont.! Statement of Ms Catherine Adams Senior Clinical Midwife cont: “In the statements made by ‘H’ she stated that the respondent’s view of breech was ‘that breech is just a variation of normal… she does not believe that breech is an issue and is a variation of normal. The ACM National Midwifery Guidelines for Consultation and Referral nominate breech presentation at term (37-42 weeks) as a ‘C’ category which requires referral to Secondary or Tertiary Care. The Guidelines state that a midwife would transfer care to a medical practitioner in this circumstance that is to obstetric care. There was no documented consultation process with a medical officer and this is an omission of care.” !
  11. 11. ©Slater&GordonLimited2012 11! Third Incident - Tully Oliver Kavanagh! •  In 2011 Lisa Barrett started to provide antenatal care to W for a planned home birth of twins. The second twin Tully died at three days of age on 9 October 2011! •  Ms Barrett was not registered as a midwife! •  W had four previous vaginal births which were uncomplicated other than one post partum haemorrhage in hospital. The third and fourth children had been born at home with no clinical support.! •  W was fully informed of the risks in relation to delivery of twin 2 by doctors who she saw in the antenatal period at WCH!
  12. 12. ©Slater&GordonLimited2012 12! Third Incident- Tully Oliver Kavanagh cont! •  W had a normal vaginal delivery of Twin 1 Ruby at home at 1.15pm on 7 October 2011! •  Several non reassuring doppler readings of Tully’s pulse were taken and a large clot was passed! •  Active labour commenced 15 minutes after Ruby was born and it became clear that there were two sacs and that W was experiencing a placental abruption! •  Ms Barrett rang WCH at 2pm.! •  During transport to the hospital in the family car Tully was born at approximately 2.20pm over an hour after Ruby had been born! •  Tully was unresponsive and died two days later!
  13. 13. ©Slater&GordonLimited2012 13! Third Incident-Tully Oliver Kavanagh cont! •  Professor Pepperell provided a report to the Coroner and suggested that in hospital a syntocinon infusion would have been commenced 10 minutes after twin 1 was born, if this was not acceptable to the mother an artificial rupture of membranes would have been undertaken after the vaginal bleeding was observed and delivery expedited by forceps delivery if necessary! •  If born at 2pm Tully would have been in better condition and more likely to survive! •  When asked what she would say to other mothers contemplating having twins at home at the Inquest W said:! •  “ I would say to them that when you are looking at the risks, one looks like a really small number, but somebody has to be the one and if you are the one, it’s really final and you can’t do it over, and I was the one”!
  14. 14. ©Slater&GordonLimited2012 14! Fourth Incident! •  After Ms Barrett surrendered her registration she has continued to be involved in home births! •  She assisted a mother in Western Australia who was pregnant with twins in a home birth which occurred on 3 July 2011. ! •  The first twin was born at 2.37 am and the second twin was born 38 minutes later at 3.15pm simultaneously with the placenta and was unresponsive and later died!
  15. 15. ©Slater&GordonLimited2012 15! Fourth Incident cont! •  A Community Midwife Program in WA was not prepared to assist in a homebirth as it was considered that the delivery of twins in water at home was high risk! •  Ms Barrett gave evidence at the Inquest that she attended the birth as a birth advocate. This was rejected by the Coroner who found that Ms Barrett had been undertaking tasks which only a midwife would be able to undertake! •  This is almost identical to the birth of Tully Kavanagh which occurred later in 2011!
  16. 16. ©Slater&GordonLimited2012 16! Further Earlier Incident! •  A further earlier incident occurred which was not dealt with by the Coroner as both twins survived. It was however dealt with at the Midwifery Board Hearing! •  The respondent’s involvement with “X” commenced in about August or September 2009 when the respondent contracted with “W” to act as her midwife for a planned home birth by “X” of twins. The twins were born on 1 and 2 January 2010 and survived. ! •  On I January 2009 Twin 1 was born by vaginal delivery at home and on 2 January 2010 X presented at hospital 8 hours after Twin 1 was born later with the second twin in footling breech presentation. There was no foetal monitoring of Twin 2 after Twin 1 was born prior to presentation to hospital.
  17. 17. ©Slater&GordonLimited2012 17! Further Earlier Incident cont.! •  Due to the time delay between deliveries breech extraction was not possible and therefore an emergency lower segment caesarean section was performed. Twin 2 was born in good condition! •  Dr Sexton who delivered Twin 2 at WCH indicated that it was his view that X should have been transferred to hospital no later than one hour after the birth of Twin 1! •  The 19 week scan indicated that one of the twins was in breech position. The scan had been requested by Xs GP who then arranged an appointment with an obstetrician which X cancelled. Her GP contacted her and expressed concern that she had cancelled the appointment and X indicated that she ‘did not consider her pregnancy to be an illness and did not want to be booked in with a hospital’!
  18. 18. ©Slater&GordonLimited2012 18! Further Earlier Incident cont ! •  Dr Taylor Xs GP contacted Ms Barrett on 2 September 2009 and Dr Taylor gave evidence as to the conversation as follows:! “I recall that Ms Barrett was very abrupt on the telephone. She told me that it was ‘her role to support “X’s” decision about the management of her pregnancy and delivery over and above anything else’. I expressed concern over this. I asked the respondent whether the support she offered to “X” would extend to the detriment of the babies. She confirmed this. She told me that her role was to ‘prioritise the care of the mother’. I told the respondent that one of “X’s” babies was in the breech position and I was very concerned about “X” having a homebirth for primigravida twins, one of whom was breech. The respondent dismissed my concerns completely.”!
  19. 19. ©Slater&GordonLimited2012 19! Lessons to be learnt! The Coroner recommended as follows:! 1. The introduction of legislation that would render it a criminal offence for a person to engage in the practice of midwifery, including its practice in respect of the management of the three stages of labour, without being a midwife or a medical practitioner registered pursuant to the National Law! 2. The introduction of legislation that would impose a duty on any person providing a health service, including midwifery services, to report the intention of any person under his or her care to undergo a homebirth in respect of deliveries that are attended by an enhanced risk of complication, for example but not limited to, homebirths involving the birth of twins or known breech birth at term; !  !
  20. 20. ©Slater&GordonLimited2012 20! Lessons to be Learnt cont.! 3 ) That upon notification of a person’s intention to undergo a homebirth attended by an enhanced risk, that the Department of Health and Ageing cause advice to be tendered to that person from a senior consultant obstetrician as to the desirability or otherwise, in the circumstances of the particular case, for a homebirth to be conducted! 4) That consideration be given to the establishment of a position known as the Supervisor of Midwives based upon the position described as such in the United Kingdom!
  21. 21. ©Slater&GordonLimited2012 21! Lessons to be learnt cont.! 5) That consideration is given to the establishment of alternative birthing centres as contemplated by the Australian Medical Association;!  ! 6) That education in the form of written advice distributed generally to the public be provided in respect of various matters concerning homebirths.!
  22. 22. ©Slater&GordonLimited2012 22! Patterson v Khalsa! •  The case involves the home birth of the Plaintiff, Will Patterson on 21 October 2006 under the care of the Ms Khalsa! •  The Plaintiff alleged that he suffered from cerebral palsy as a result of hypoxia during the course of the labour as a result of the negligence of Ms Khalsa in recommending a home birth and as a result of management of the labour! •  Labour commenced on the morning of 21 October 2006 at 41 weeks gestation. Ms Khalsa arrived at 12 noon. By 2pm the cervix was fully dilated and Will’s head was high!
  23. 23. ©Slater&GordonLimited2012 23! Patterson v Khalsa cont.! •  Will’s head was delivered four and a half hours later with thick meconium staining. There was difficulty in delivering the shoulders which caused the delay in delivery! •  An ambulance was called to take Will to hospital.! •  Proceedings were issued on 20 October 2009! •  Ms Khalsa initially engaged solicitors and filed a Defence and two expert opinions as to negligence but later advised the Court that she would not proceed with defending the claim.! •  Her Defence was struck out in March 2013!
  24. 24. ©Slater&GordonLimited2012 24! Patterson v Khalsa cont. ! •  On 1 May 2013 an order was made freezing Ms Khalsa’s assets and requiring her to provide information to the Court as to her financial situation! •  She failed to comply with orders requiring her to provide financial information to the Court and upon the Plaintiff’s application an arrest warrant was issued on 21 June 2013 after two failures to attend Court ! •  The Plaintiff’s damages were assessed at a hearing on 10 May 2013 and on 27 September 2013 judgement in the sum of $6,606,583 was made for the Plaintiff!
  25. 25. ©Slater&GordonLimited2012 25! Assessment of Damages! Non-Economic Loss   $535,000.00   Future Economic Loss   $365,000.00   Future Superannuation Entitlement   $40,105.00   Future Domestic and attendant care   $4,247,311.00   Total   $5,187,406.00   Funds Management Cost   $1,419,177.00   Total:   $6,606,583.00   Damages  were  assessed  as  follows:!
  26. 26. ©Slater&GordonLimited2012 26! Dr Adam Scheinberg! Dr Adam Scheinberg (paediatric rehabilitation specialist) opinion set out in the judgement:! "Will had evidence of quadriplegic cerebral palsy with mixed tone (dystonia affecting right upper limb and low tone affecting other limbs and trunk). He had full passive range of motion in his upper limbs and lower limbs, other than mild contracture in the muscles of his right hand.”! Dr Sheinberg’s diagnosis:! • mixed tone quadriplegic cerebral palsy, low central tone and dystonia affecting right upper limb;! • microcephaly;! • mobility at gross motor function classification system (GMFCS) level IV;! • upper limb function at manual ability classification system (MACS) level II;! • epilepsy not requiring anti-epileptic medication;! • alternating bilateral squint;! • moderate intellectual disability;! • sialorrhoea (drooling); and! • functional independence significantly below able-bodied peers."!
  27. 27. ©Slater&GordonLimited2012 27! Dr Adam Scheinberg! •  Of particular importance, is Dr Scheinberg's opinion that the plaintiff will continue to need the full-time support of an attendant carer who does not require to be a registered nurse, but who should be trained in first aid because of an increased risk of the plaintiff having seizures! •  Dr Scheinberg concluded that the plaintiff would not be able to live independently as an adult, but would be required either to live in his parents' home, with any assistance being provided by his parents or attendant carers; to live in a group home sharing costs of care with a small number of similarly disabled adults; or else to live in his own home but with all care provided.! •  Dr Scheinberg did not suggest that for medical reasons any one or other of these should be preferred!
  28. 28. ©Slater&GordonLimited2012 28! Ms Castle-Burton! •  A report was prepared by Ms Castle-Burton, a specialist occupational therapist! •  Ms Castle-Burton, based upon the detailed assessment made by Dr Scheinberg, expressed the opinion that the appropriate level of attendant care to be provided to the plaintiff, would cost $319,374.35 per annum. ! •  This is a sum of about $6,140 per week!
  29. 29. ©Slater&GordonLimited2012 29! Patterson v Khalsa cont. ! •  On 4 February 2014 Ms Khalsa was arrested at Sydney Airport where she was attempting to board a flight to Wellington. Her departure documents and Italian passport were in the name of Dr Margaret Saviane! •  In the six months prior to attending Court she had travelled to New Zealand, Myanmar and Malaysia and had plans to travel to Fiji!
  30. 30. ©Slater&GordonLimited2012 30! Patterson v Khalsa cont.! •  When arrested she had a significant amount of money on her and various documents in her possession showed that she had a house in New Zealand, a half interest in a factory in Sydney, a car and a savings account in Sydney from which she had recently withdrawn $35,000.! •  She was found to be a serious flight risk as she had two passports in different names, had travelled regularly in the last six months and she was therefore remanded in custody pending a date for her to attend court to provide information about her financial assets!
  31. 31. ©Slater&GordonLimited2012 31! Professional Indemnity Insurance for Privately Practising Midwives •  From 1 July 2010 under s 129 of the Health Practitioners Regulation National Law all health professionals are required to hold professional indemnity insurance as a condition of being registered to practice! •  PPM’s have struggled for many years to obtain insurance and this has resulted in the current exemption under the Health Practitioner Regulation National Law for home birth midwives to hold professional indemnity insurance for intrapartum care. This will continue until July 2015! •  From 2010 there have only been two insurance providers for home birth midwives but those policies only cover antenatal and post natal care!
  32. 32. ©Slater&GordonLimited2012 32! Professional Indemnity Insurance for Privately Practising Midwives cont. •  This has resulted in less midwives practising in the area and limited access to homebirth in Australia. According to a recent study entitled ‘Professional Indemnity Insurance for Midwives Research’ (30 July 2013) conducted by PricewaterhouseCoopers at the request of the Nursing and Midwifery Board of Australia, there are only approximately 200 home birth midwives practising in Australia! •  Home births make up only 0.3 % of all births in Australia! •  As shown by Patterson v Khalsa the lack of professional indemnity insurance for PPMs needs to be resolved urgently!
  33. 33. ©Slater&GordonLimited2012 33! Considerations concluded by Authors of the Research that are recommended:
 1.  Specific Registration of PPM’s as a separate sub class of midwife! 2.  PPM practice models in partnership or group legal entities! 3.  Development of a consistent national safety and quality frameworks which all PPM’s must meet! 4.  Better data reporting requirements for home births! 5.  Strengthen ties between the insurers and the industry! 6.  Alternate insurance models moving away from profit so that commercial viability does not impact on provision of insurance such as the situation in Canada! 7.  Effective collaboration and partnerships between PPMs and health service providers! 8.  Impact of broader health policies!
  34. 34. ©Slater&GordonLimited2012 34! Implications of lack of insurance: MOTHERS : who may be unable to access midwifery assistance for home birth and either be forced into the hospital system or obtain assistance from people without midwifery training due to dwindling home birth midwifery services! BABIES: injured during a negligent homebirth who do not have access to compensation that babies born in hospital do have! HOME BIRTH MIDWIVES: who may have damages judgements enforced against their personal assets! LAWYERS : attempting unsuccessfully to obtain compensation for clients injured as a result of home birth! COURTS : forced into making orders similar to those made in Patterson v Khalsa!
  35. 35. ©Slater&GordonLimited2012 35! The Coroners Inquest into the death of Caroline Lovell!