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David Hirsch - Selbourne Chambers Sydney - Lifting the Drapes:  Twenty Years of Obstetrics Litigation
David Hirsch - Selbourne Chambers Sydney - Lifting the Drapes:  Twenty Years of Obstetrics Litigation
David Hirsch - Selbourne Chambers Sydney - Lifting the Drapes:  Twenty Years of Obstetrics Litigation
David Hirsch - Selbourne Chambers Sydney - Lifting the Drapes:  Twenty Years of Obstetrics Litigation
David Hirsch - Selbourne Chambers Sydney - Lifting the Drapes:  Twenty Years of Obstetrics Litigation
David Hirsch - Selbourne Chambers Sydney - Lifting the Drapes:  Twenty Years of Obstetrics Litigation
David Hirsch - Selbourne Chambers Sydney - Lifting the Drapes:  Twenty Years of Obstetrics Litigation
David Hirsch - Selbourne Chambers Sydney - Lifting the Drapes:  Twenty Years of Obstetrics Litigation
David Hirsch - Selbourne Chambers Sydney - Lifting the Drapes:  Twenty Years of Obstetrics Litigation
David Hirsch - Selbourne Chambers Sydney - Lifting the Drapes:  Twenty Years of Obstetrics Litigation
David Hirsch - Selbourne Chambers Sydney - Lifting the Drapes:  Twenty Years of Obstetrics Litigation
David Hirsch - Selbourne Chambers Sydney - Lifting the Drapes:  Twenty Years of Obstetrics Litigation
David Hirsch - Selbourne Chambers Sydney - Lifting the Drapes:  Twenty Years of Obstetrics Litigation
David Hirsch - Selbourne Chambers Sydney - Lifting the Drapes:  Twenty Years of Obstetrics Litigation
David Hirsch - Selbourne Chambers Sydney - Lifting the Drapes:  Twenty Years of Obstetrics Litigation
David Hirsch - Selbourne Chambers Sydney - Lifting the Drapes:  Twenty Years of Obstetrics Litigation
David Hirsch - Selbourne Chambers Sydney - Lifting the Drapes:  Twenty Years of Obstetrics Litigation
David Hirsch - Selbourne Chambers Sydney - Lifting the Drapes:  Twenty Years of Obstetrics Litigation
David Hirsch - Selbourne Chambers Sydney - Lifting the Drapes:  Twenty Years of Obstetrics Litigation
David Hirsch - Selbourne Chambers Sydney - Lifting the Drapes:  Twenty Years of Obstetrics Litigation
David Hirsch - Selbourne Chambers Sydney - Lifting the Drapes:  Twenty Years of Obstetrics Litigation
David Hirsch - Selbourne Chambers Sydney - Lifting the Drapes:  Twenty Years of Obstetrics Litigation
David Hirsch - Selbourne Chambers Sydney - Lifting the Drapes:  Twenty Years of Obstetrics Litigation
David Hirsch - Selbourne Chambers Sydney - Lifting the Drapes:  Twenty Years of Obstetrics Litigation
David Hirsch - Selbourne Chambers Sydney - Lifting the Drapes:  Twenty Years of Obstetrics Litigation
David Hirsch - Selbourne Chambers Sydney - Lifting the Drapes:  Twenty Years of Obstetrics Litigation
David Hirsch - Selbourne Chambers Sydney - Lifting the Drapes:  Twenty Years of Obstetrics Litigation
David Hirsch - Selbourne Chambers Sydney - Lifting the Drapes:  Twenty Years of Obstetrics Litigation
David Hirsch - Selbourne Chambers Sydney - Lifting the Drapes:  Twenty Years of Obstetrics Litigation
David Hirsch - Selbourne Chambers Sydney - Lifting the Drapes:  Twenty Years of Obstetrics Litigation
David Hirsch - Selbourne Chambers Sydney - Lifting the Drapes:  Twenty Years of Obstetrics Litigation
David Hirsch - Selbourne Chambers Sydney - Lifting the Drapes:  Twenty Years of Obstetrics Litigation
David Hirsch - Selbourne Chambers Sydney - Lifting the Drapes:  Twenty Years of Obstetrics Litigation
David Hirsch - Selbourne Chambers Sydney - Lifting the Drapes:  Twenty Years of Obstetrics Litigation
David Hirsch - Selbourne Chambers Sydney - Lifting the Drapes:  Twenty Years of Obstetrics Litigation
David Hirsch - Selbourne Chambers Sydney - Lifting the Drapes:  Twenty Years of Obstetrics Litigation
David Hirsch - Selbourne Chambers Sydney - Lifting the Drapes:  Twenty Years of Obstetrics Litigation
David Hirsch - Selbourne Chambers Sydney - Lifting the Drapes:  Twenty Years of Obstetrics Litigation
David Hirsch - Selbourne Chambers Sydney - Lifting the Drapes:  Twenty Years of Obstetrics Litigation
David Hirsch - Selbourne Chambers Sydney - Lifting the Drapes:  Twenty Years of Obstetrics Litigation
David Hirsch - Selbourne Chambers Sydney - Lifting the Drapes:  Twenty Years of Obstetrics Litigation
David Hirsch - Selbourne Chambers Sydney - Lifting the Drapes:  Twenty Years of Obstetrics Litigation
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David Hirsch - Selbourne Chambers Sydney - Lifting the Drapes: Twenty Years of Obstetrics Litigation

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David Hirsch delivered the presentation at the 2014 Obstetric Malpractice Conference. …

David Hirsch 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: http://www.informa.com.au/obstetricmalpractice14

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  • 1. IIR Obstetric Malpractice Conference Melbourne - 27 June 2014 David Hirsch, Barrister Selborne Chambers, Sydney
  • 2. ! Footling breech ! Normal vaginal delivery ! Birth asphyxia – cerebral palsy ! Damages agreed at $8 million ! P’s experts argued baby was FB and should have had Caesarean delivery ! D denied it was FB
  • 3. ! Sketch at 1800 – delivery at 0450 ! SROM at 0315 ! Mother walks around and goes to the toilet ! Foot drops through the introitus ! Cord compression – severe bradycardia ! APGAR scores: 1:1, 3:5, 3:10
  • 4. ! Trial ◦ Plaintiff lost ! No footling breech when D made his delivery plan ! Appeal ◦ Plaintiff lost again ! Cannot introduce a new theory of the case
  • 5. ! Primigravid – normal pregnancy ! NVD at 41 weeks ! Second stage 2 hrs 15 min ! No meconium ! APGAR scores: 6:1, 7:5, 7:10 ! HIE – cerebral palsy
  • 6. ! Cord pH 7.095, BE – 17.3 ! Seizures at 14 hours ! MRI – basal ganglia damage ! Auscultation in second stage ◦ 0830 / 0845 / 0900 / 0930 ! Loss of FHR at 0950 ! Delivery at 1015
  • 7. ! CTG monitoring would have detected late decelerations and bradycardia ! Auscultation was inadequate but… ! Was CTG monitoring indicated? ! 0930 FHR “120-160 between contractions” ! CTG monitoring should have been done ! Delivery before 0950
  • 8. ! Hospital admitted liability ! Settled at a mediation
  • 9. ! Uterine rupture – cerebral palsy ! Disputed gestation period ◦ 42+5 weeks or ◦ 41+5 weeks? ! Delivery should have been by 42 weeks
  • 10. ! EDC of 2 March ! Entry for 38 weeks repeated in antenatal card ! EDC of 9 March subsequently written ! Delivery on 21 March ◦ 42+5 weeks or 41+5 weeks ! Peeled, cracking, meconium stained skin ! Nurse writes “Post mature looking baby!”
  • 11. ! Double counting of 38 weeks was a record keeping error ! No explanation for changing EDC from 2 March to 9 March ! Postnatal comments consistent with post maturity
  • 12. ! The double counting of 38 weeks was deliberate ! “Rounding up” dates because visits started on Mondays then changed to Thursdays ! Always had in mind the EDC was 9 March but only changed his records after 38 weeks
  • 13. ! Plaintiff lost ◦ Judge accepted D’s explanation of deliberate double counting ◦ “Meconium stained skin” probably meant the baby had not been washed before being seen ◦ “Post mature looking baby” never mentioned in the judgment
  • 14. ! 1980 case ! Failure to diagnose rubella ! Mother continued the pregnancy ! Baby born with rubella encephalopathy ! Parents’ claim not pursued because of limitations ! Claim by disabled child for damages
  • 15. ! Febrile illness and rash in early pregnancy ! GP does standard IGG test – normal result ! No second test for rising IGG
  • 16. ! Reassures mother her illness was not rubella ! After birth told rubella blood testing was not reliable – new improved test available ! Pathologist tested stored blood – positive IgM
  • 17. ! D should have requested IgM test because of febrile illness and rash ◦ D admits negligence ! Mother would have terminated the pregnancy but for the negligent advice ◦ D admits this too
  • 18. “The child suffers from serious disabilities. If the defendants had not been careless, the child would not be suffering now because it would not be alive. Why should the defendants not pay the child for its suffering: The answer lies in the implications and consequences of holding that they should… [It would make] a further inroad on the sanctity of human life which would be contrary to public policy.”
  • 19. !  Euthanasia ◦  “It would mean regarding the life of a handicapped child as not only less valuable than the life of a normal child, but so much less valuable that it was not worth preserving.” !  Believers, non believers and the afterlife ◦  “…how can a worldly court resolve this conflict between believers and non-believers?” !  The gift of life ◦  “Such a claim seems utterly offensive; there should be rejoicing that the hospital’s mistake bestowed the gift of life upon the child.”
  • 20. ! No duty ◦ No duty to child to prevent life with disabilities ! No causation ◦ D’s negligence did not cause the rubella infection ! No legal damage ◦ Impossible to say whether life with disabilities is worse than non-existence
  • 21. !  The reality of the "wrongful-life" concept is that such a plaintiff both exists and suffers, due the negligence of others. It is neither necessary nor just to retreat into meditation on the mysteries of life. !  Law is more than an exercise in logic, and logical analysis, although essential to a system of ordered justice, should not become an instrument of injustice.
  • 22. ! Trial ◦ Plaintiff lost ! NSW Court of Appeal ◦ Plaintiff lost 2-1 ! High Court of Australia ◦ Plaintiff lost 6-1
  • 23. ! Option to implant one or two embryos ! Woman informs doctor on the operating table she wants only one embryo ! Technician implanted two ! “%#*&@!!!”
  • 24. ! Birth of healthy twins ! Parents sue for the cost of raising the second child ◦ A ‘wrongful birth’ case ! Trial ◦ Plaintiffs lose ! Appeal ◦ Plaintiffs win
  • 25. ! Parents have four boys and want a girl ! Contract with IVF clinic for a girl ! Option to implant one or two female embryos ! Parents select two ! IVF clinic negligently implants one female and one male ! One of the embryos does not survive…
  • 26. ! Parents claim damages for birth of fifth son ! Claim settles out of court
  • 27. ! Forceps delivery in 1990 ! Admitted to be traumatic ! Neonatal stroke ! Was the delivery negligently performed? ! Did the delivery cause the stroke?
  • 28. ! Delivery at term – long labour – no distress ! Neville Barnes attempted – discovered OP ! Kiellands rotation – turned body through 270 degrees ! Difficult – ‘more from descent than the rotation’
  • 29. ! Seizures – skull x-ray – no fracture seen ! No vascular ultrasound studies ! Neonatal stroke - hemiplegia
  • 30. ! Even if the forceps delivery was negligent (denied), you cannot prove that this caused the stroke ! Forceps delivery is very common ! Neonatal stroke is very rare ! Literature is limited ! Causal connection is anecdotal and theoretical
  • 31. ! Overseas obstetric opinion ◦ Describes position and rotation and traction forces ! Paediatric neurologist ◦ Identifies embolic stroke, excludes other causes
  • 32. ! Paediatric neuroradiologist ◦ Confirms timing of injury and traumatic nature ! Vascular surgeon ◦ Connects the dots
  • 33. ???

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