Breen v Larkin [2002] QSC 107

SUPREME COURT OF QUEENSLAND CITATION: Breen v Larkin [2002] QSC 107 PARTIES: SHARNEE GAYE BREEN (an infant by her next friend) GAYE KATHERINE BREEN (plaintiff) v PAUL KELSALL LARKIN (defendant) FILE NO: S1438 of 1993 DIVISION: Trial DELIVERED ON: Wednesday 24 April 2002 DELIVERED AT: Brisbane HEARING DATE: 8 April 2002 – 12 April 2002 JUDGE: Chesterman J ORDER: 1. That there be judgment for the defendant against the plaintiff 2. That the defendant’s costs be assessed on the standard basis and be paid by the plaintiff CATCHWORDS: NEGLIGENCE – Medical Negligence – Res ipsa loquitur – where plaintiff baby suffered harm during childbirth – whether obstetrician acted negligently in delivery of plaintiff – whether plaintiff could rely upon res ipsa loquitur NEGLIGENCE – DAMAGES – Assessment of damages for pain and suffering – whether damages would be awarded for future economic loss – whether damages would be awarded for provision of past care COUNSEL: Mr. M. Cooke QC with Mr. S. Di Carlo for the plaintiff Mr. S.C. Williams QC with Mr. G.W. Diehm for the defendant SOLICITORS: Baker Johnson Solicitors for the plaintiff Flower & Hart Solicitors for the defendant [1] CHESTERMAN J: The plaintiff is a nine year old child who sustained spinal cord injury during birth on 16 December 1992 at the Allamanda Private Hospital at Southport. She has recovered almost completely from her neurological damage but, nevertheless, claims more than $500,000 as damages for negligence against the obstetrician who attended her mother during confinement and delivery. [2] Dr Larkin, the defendant, wrote a summary of Mrs Breen’s labour on the day following the birth. This was ordinary practice. Dr Larkin’s summary has been used by the expert witnesses as the basis for their opinions and it is convenient to -- 1 of 17 -- 2 repeat the salient parts of the account. I should, perhaps, add that I accept it as factually accurate despite some oblique suggestions by counsel for the plaintiff that Dr Larkin may have misstated facts in a desire to avoid responsibility for the plaintiff’s injury. [3] Mrs Breen was admitted to the hospital at 8.30 a.m., on 16 December 1992, three weeks prior to the expected birth date. Examination revealed that the cervix was dilated between 1 and 2 centimetres and the baby’s head was 1 centimetre above the ischial spines which are bony protuberances forming part of the pelvic cavity. The membranes were artificially ruptured and an epidural anaesthetic was applied at 10.00 a.m. At 11.00 a.m., the cervix was dilated by 2 to 3 centimetres. The mother’s contractions were only moderate. At 12.30 p.m., no further dilation had occurred in the cervix. The defendant directed that the epidural anaesthetic be continued and that the mother be given Syntocinon to strengthen the contractions. At 2.00 p.m., the cervix was dilated to 7 centimetres and the baby’s head had descended to the level of the ischeal spines. The head had not rotated fully and was right occiput transverse (“ROT”) which means that the back of the baby’s head was to the mother’s right. The normal delivery position is for the baby to be facing downwards, a position known as occiput anterior (“OA”) i.e., the back of the baby’s head is to the mother’s front. According to the expert obstetrical evidence it is not unusual for a baby’s head to be ROT at that stage of labour. As the head descends the muscles on the pelvic floor should cause it to rotate into the OA position. [4] At 4 p.m. the cervix was fully dilated but the baby’s head was still ROT. Mrs Breen was exhausted. The significance of the observation is that she was unable “to push as efficiently” to assist contractions. Dr Larkin noted that he would review Mrs Breen at 5 o’clock and, in the meantime, “await rotation”. [5] At 4.45 p.m., the baby’s head was still ROT and was 1 centimetre below the level of the ischeal spines. Dr Larkin attempted to deliver the baby by applying Kiellands forceps, a pair of which were demonstrated in evidence. They were designed, as I understand things, for the particular purpose of rotating babies who present in a transverse position or in an occiput posterior position, i.e., facing towards the mother’s front. The forceps consist of two blades which are inserted separately. One end of each blade is shaped to fit over the foetal head. They are then connected by a sliding lock. The handles of the two blades are held in one hand while a rotational force is applied. [6] According to his notes Dr Larkin experienced some difficulty in applying the anterior blade. Having inserted it he corrected an asynclitism, i.e. a condition where the baby’s head tips more towards one shoulder than the other. Dr Larkin disimpacted the foetal head slightly to allow him to attempt to rotate the baby by the forceps. Disimpaction occurs by manually pushing the foetal head upwards into the pelvic cavity to create more space for the rotation which was effected with “no undue force”. The forceps were then removed and the position of the baby checked. It was OA – the correct position for delivery. The Kiellands forceps were reapplied and the head was delivered with two firm pulls. The shoulders were a little more difficult to deliver but the front shoulder was extracted and the second shoulder followed more easily. -- 2 of 17 -- 3 [7] In oral evidence Dr Larkin explained that the rotation was of one to two minutes duration. Having removed the forceps he replaced them which took another two or three minutes. The head was delivered using traction applied via the forceps. Once the head was delivered the body was delivered by traction applied manually (i.e., without forceps) to the head. The duration of traction applied to deliver both head and body was one to two minutes. [8] At birth the plaintiff was flaccid and showed few signs of life. She made no attempt to breath. Her heart rate was only 20 to 30 beats per minute. An immediate attempt was made by the defendant to resuscitate the baby and the heart beat picked up rapidly. Dr Davis, paediatrician, attended within a few minutes and took over resuscitation. An hour later the plaintiff was transferred to the Mater Mother’s Hospital in Brisbane for specialist treatment and care. [9] It is convenient now to set out the defendant’s account given in evidence. Dr Larkin has been stricken by cancer. His tongue, larynx and neck glands have been removed. He is unable to speak or to swallow and experiences considerable discomfort. His life expectancy is measured in weeks, or perhaps months. His evidence-in-chief consisted of an affidavit supplemented by some brief questions which he answered in writing. His answers in cross-examination were also written. They were read aloud by my associate so all in court could comprehend the course of the evidence. [10] The defendant became a registered obstetrician and gynaecologist in January 1976. He commenced private specialist practice in November of that year. For the next 19 years he delivered on average 400 to 450 babies per year. He regards himself as skilled in manipulative deliveries. [11] The account of the delivery in his affidavit is: “My preferred method of assisted delivery, where it is needed, is the use of the Kiellands forceps with which I am proficient. All methods of delivery involve risk to mother and child. I am capable of performing all methods but if there is no reason why a caesarean section ought be performed in preference to a Kiellands forceps delivery then that is what I will do because of my skill and experience. There was some difficulty with the application of the anterior blade of the forceps and correction of asynclatism. The difficulty with the application of the anterior blade was an inability to apply the blade directly to the left side of baby’s head. I used the indirect method of application which entails application of the anterior blade of the forceps over baby’s face and then to “wander” the blade to the side until it is applied in the correct position to the side of baby’s head. “Asynclatism” indicates that the baby’s head was at an angle which required correction. This is done by sliding the forceps over each other until the head is in a level presentation. I then deliberately disimpacted the head slightly to allow rotation. This means the head was pushed back to find a more roomy area in the pelvis, then rotated the head. I used one hand. The use of these forceps requires that only one hand be used, because the forceps are -- 3 of 17 -- 4 handles designed to slide against each other during the procedure. I would describe the rotation as being like turning a key. If the head cannot be rotated by simple pressure the procedure should be abandoned. The head has to move around easily. In this case it did move easily. The forceps were then removed and the position of the baby’s head was checked. I observed that the head was then direct occipito anterior – as required for delivery. The reason I removed the forceps before reapplying traction was to enable me to accurately confirm the position of the baby’s head. I then reapplied the Kiellands forceps and delivered the head with two firm pulls. A moderate episiotomy was performed on the mother. The shoulders were a little more difficult to deliver, but the anterior shoulder was delivered under the symphysis pubis with one firm pull which lasted 4 to 5 seconds. There was then an easy delivery of the posterior shoulder and the rest of the baby was delivered at 4.57 pm.” [12] The particulars of negligence alleged against the defendant are that he: (a) failed to carry out a caesarean section, or to appreciate that a caesarean section was a more appropriate method of delivery. (b) failed properly to monitor the progress of the delivery. (c) failed to use the Keilland Rotation forceps in a manner that would not cause injury to the plaintiff. (d) used excessive force during rotation or extraction with the forceps. (e) did not remain with the plaintiff’s mother at all times during labour when he knew that the plaintiff was ROT. (f) failed to identify complications associated with the delivery and consequently failed to take appropriate remedial steps such as performing a caesarean section. [13] It is obvious, and accepted, that the defendant owed the plaintiff a duty to take reasonable care not to harm her. “ . . . the standard of care to be observed by a person with some special skill or competence is that of the ordinary skilled person exercising and professing to have that special skill. But, that standard is not determined solely or even primarily by reference to the practice followed or supported by a responsible body of opinion in a relevant profession . . . The courts have adopted the principle that, while evidence of acceptable medical practice is a useful guide for the courts, it is for the courts to adjudicate on what is the appropriate standard of care . . .” Per Mason CJ, Brennan, Dawson, Toohey and McHugh JJ in Rogers v Whitaker (1992) 175 CLR 479 at 487. At 489 their Honours said: “Whether a medical practitioner carries out a particular form of treatment in accordance with the appropriate standard of care is a -- 4 of 17 -- 5 question in the resolution of which responsible professional opinion will have an influential, often a decisive, role to play . . .” Thomas J said in Dwan v Farquhar [1988] 1 Qd R 234 at 241: “To make out a case of negligence . . . against a medical practitioner, it is necessary to show a departure by the defendant from the standards of the ordinary skilled practitioner. The test whether a surgeon has been negligent is whether he has failed to measure up in any respect, whether in clinical judgment or otherwise, to the standard of the ordinary skilled surgeon exercising and professing to have the special skill of a surgeon (Whitehouse v Jordon . . .). . . . It is significant in the present case that there is no evidence from any expert source suggesting a failure on the part of the surgeon to act in the way he would then have been expected to act.” [14] The sentence last quoted is of equal application to this case. Evidence was led from two obstetricians: Dr Wilson called for the plaintiff and Dr Keeping for the defendant. Both expressed the opinion that Dr Larkin had not done anything which should not have been done by an obstetrician effecting delivery of a baby as the plaintiff presented, nor had he failed to do that which a skilled obstetrician would have done exercising reasonable care to effect delivery. The plaintiff’s case depends upon the evidence of a paediatrician, Dr O’Duffy that the objective of the obstetrician is to deliver an unharmed baby so that the birth of a damaged child is proof of negligence. [15] The plaintiff’s indicated reliance on res ipsa loquitur is, I think, misplaced. The role of the principle has been substantially curtailed by its exposition in Schellenberg v Tunnel Holdings Pty Limited (1999) 200 CLR 121 in which two points are made. One is that before the principle can apply the accident which is said to have been caused by negligence must be of a kind which in the ordinary experience of human affairs indicate a lack of care. The second is that the principle applies only where the occurrence is unexplained. When a plaintiff proves the cause of an injury it is also necessary to prove that the cause involved negligence. Gleeson CJ and McHugh J said (para 24): “What flows from these statements of principle is that, while res ipsa loquitur may ameliorate the difficulties that arise from a lack of evidence as to the specific cause of an accident, the inference to which it gives rise is merely a conclusion that is derived by the trier of fact from all the circumstances of the occurrence. When it applies, the trier of fact may conclude that the defendant has been negligent although the plaintiff has not particularised a specific claim in negligence or adduced evidence of the cause of the accident.” Later (para 32) their Honours said: “Once the cause of the external event is identified, the question becomes whether the plaintiff has proved that that cause was the product of negligence . . . ‘The doctrine is dependent on the absence of explanation, and, although it is the duty of the defendants, if they desire to protect themselves, to give an adequate explanation of the cause of the accident, yet, if the facts are sufficiently known, the question ceases to be one where the facts speak for themselves, and -- 5 of 17 -- 6 the solution is to be found by determining whether, on the facts as established, negligence is to be inferred or not.’ ” Kirby J pointed out (para 118) that the implements at issue in that case, an air pressure hose with specially designed couplings and clamps, were “not within the ordinary knowledge of tribunals of fact”. His Honour went on: “They do not constitute simple implements with which the ordinary decision maker (judge or jury) is familiar in daily life or which are so rudimentary that they may be readily understood. As the evidence revealed, it is a mistake to equate such equipment with garden hoses attached to domestic water taps. The peculiarities of the work equipment require explicit evidence. Such evidence was given. Once given, it left no real scope for the legitimate operation of informed inference. There was ample scope for speculation and conjecture. But this fell far short of establishing that the occurrence which happened would not have occurred in the absence of negligence on the part of the respondent.” These remarks are equally apposite to the processes of assisted child birth and the mechanisms by which children may be born damaged. [16] Dr Wilson’s evidence-in-chief consisted principally of an exposition of, and commentary on, the defendant’s notes of the delivery. Additionally he expressed the opinion that the plaintiff suffered neurological injuries, some tearing or over stretching of the nerves in the cervical spine, during the birth itself and as a result of delivery. He said (T 148.20-30): “. . . cervical spinal cord injuries are described occasionally in association with the use of Keilland forceps or with rotation in other circumstances. They are particularly described in association with rotation of the baby’s head. . . .The other option is really that excessive force was applied, but I have never heard of this sort of injury occurring with excessive traction on the baby’s head.” [17] In cross-examination it emerged that Dr Wilson had provided a report to the plaintiff’s solicitors on 5 November 1997. Counsel for the defendant called for the report. A copy was tendered. In his report Dr Wilson wrote: (a) In my opinion the most likely cause of (the plaintiff’s) injuries is birth trauma associated with the Kielland forceps delivery. (b) The first stage of . . . labour progressed normally . . . In my opinion in the circumstances it was reasonable for Dr Larkin to attempt to deliver the baby vaginally with Kielland forceps. (c) . . . I think the likely cause of (the plaintiff’s) injuries was birth trauma . . . (d) . . . In view of these (the defendant’s) accounts, in my opinion Dr Larkin did not use an unreasonable degree of force with a forceps delivery nor did he continue with the forceps delivery for too long. (e) The risks associated with a caesarean section to mother and child must in each case be balanced against the expected difficulty of the forceps delivery. In my opinion . . . in the -- 6 of 17 -- 7 circumstances it was reasonable for Dr Larkin to attempt the forceps delivery. (f) In my opinion Dr Larkin did not persist too long with forceps delivery, rather than choosing an emergency caesarean section. (g) In conclusion, in my opinion although the injury to the baby resulted from birth trauma caused by the forceps delivery, on the information available it was reasonable . . . to attempt the forceps delivery and (the defendant) does not appear to have used an unacceptable degree of force or persisted for an unreasonable time with the forceps delivery rather than resorting to delivery by caesarean section.” [18] Dr Wilson explained that in effecting the rotation with Kielland forceps an obstetrician will always encounter some resistance. The manoeuvre should be discontinued if there is a “significant degree of resistance”. The doctor thought that either rotation or traction could have caused the plaintiff’s spinal injury though he had never personally encountered an example of traction causing such an injury nor had he read of such an event in the professional literature. It is generally hyper- rotation of the head in relation to the shoulders that causes the injury. If there were hyper-rotation the obstetrician should detect resistance as the shoulders failed to turn with the head. Moreover a rotation through 90 degrees, as it was in the plaintiff’s case, should not lead to hyper-rotation. Dr Wilson accepted that there may be anatomical reasons peculiar to an individual “whereby in the use of Kielland forceps something which does not cause an injury to one child will cause an injury in another”. (T 153.45). Dr Wilson also agreed that if the rotation manoeuvre was not difficult, in the sense that no significant resistance were encountered, there would be no reason for the obstetrician to believe that the shoulders were not following the head in rotation and no reason to cease the manoeuvre. In the end Dr Wilson thought that traction to effect delivery was the probable cause of the injury because, for the reasons he had advanced, the rotation should not have caused it. [19] According to Dr Wilson at 4.45 p.m., before Dr Larkin commenced to effect delivery by forceps he had three options: to attempt an assisted vaginal delivery, to wait and see if the baby delivered spontaneously, or to undertake a caesarean section. At that time there were insufficient indications for a caesarean section, which though relatively safe for the baby, has significant risks for the mother. There were potential risks associated with assisted delivery whether by forceps or vacuum extraction. This last mentioned mode can cause foetal skull fracture or brain damage. It was, according to Dr Wilson, a matter for the obstetrician’s personal preference. It was “basically a question of using the instrument you are most familiar with and have the most expertise with”. (T 157.50). [20] In relation to the appropriate degree of force to effect delivery Dr Wilson said that the obstetrician should “use the appropriate force necessary to deliver the baby safely”. (T 159.22). [21] Dr O’Duffy’s report of 26 March 2002 does not assist the plaintiff. It concluded that the plaintiff had suffered, during birth, an “hypoxic event causing severe metabolic acidosis, encephalopathy and cerebral palsy” but, unhelpfully, does not -- 7 of 17 -- 8 describe a more particular cause for the condition. In oral evidence however he explained that: “If the trunk of the baby is gripped by the uterus . . . or is jammed in the birth canal and is fixed, and tractional force is applied to the skull, particularly rotation or extraction force, then that is likely to be taken up in the spinal cord. That, I believe, is what has happened here, that . . . the baby’s head has been moved inappropriately allowing traction to occur on the cord.” (T 186.20-30). When asked if there was some “rule of thumb about the amount of force which one . . . should use with forceps”, Dr O’Duffy replied circuitously that even to the experienced paediatrician who has observed many births the amount of force that an obstetrician appears to apply in delivery is “horrifying” but does not cause spinal injuries. He said, perceptively, that he could not “quantitate” the amount of force because “it’s not possible to quantitate . . . that depends on the obstetrician’s experience”. (T 187.35). [22] The essence of Dr O’Duffy’s testimony (T 188.15-.40) was that “the force used (to deliver the baby) should not damage the baby” which “should be prepared so excessive force isn’t necessary, so if you have got to use excessive force it means that the preparation wasn’t right, the baby wasn’t in a situation it should have been in”. In anticipation of a difficult delivery involving forceps manipulation a caesarean section should have been performed to avoid risk of harm to the baby. [23] Dr O’Duffy could not express a view on whether the spinal cord injury occurred during rotation or extraction. He thought that “in fairness to the baby it would have been better to abandon the procedure and do a caesarean section because it was not getting anywhere, and the attempt to get the baby out certainly led to trouble”. He conceded however that if an attempted rotation of a baby presenting ROT using Kielland forceps succeeded in turning the baby without observable difficulty or unusual resistance there was then, in the absence of other indications, no need to proceed to a caesarean section. (T203.55). He also agreed that the amount of force applied in delivery is a matter for the judgment of the obstetrician effecting delivery. (T 205.10-.15). [24] Dr O’Duffy’s evidence gave rise to a potential complication which, in the end, can be disregarded. There is no doubt the plaintiff was born severely hypoxic. Dr O’Duffy suggested that the cause of the hypoxia may have been some obstruction to the umbilical cord during birth so that insufficient maternal blood, and therefore oxygen, flowed to the foetus in the minutes prior to birth. Before this evidence had been given there appeared a consensus that the plaintiff’s injuries were caused by localised injury to the spinal column which led to complete muscular paralysis including an inability to breath. It is clear from Dr Larkin’s evidence that there was no damage to the umbilical cord and it is safe to assess the case on the basis of the prior consensus. [25] Dr Keeping concurs that the plaintiff’s injury was caused by her delivery. In his report of 26 March 2002 he notes that the labour was not inappropriately long and was, indeed, “quite a rapid labour” in both first and second stages. The partogram which records observations of the foetal condition shows no evidence of distress. In the doctor’s opinion there can be no criticism of the manner in which labour was -- 8 of 17 -- 9 monitored nor is there any basis for thinking that an earlier delivery, by any means, should have been attempted. Dr Keeping wrote: “The labour had progressed quite nicely. The head was in a transverse position and below the ischeal spines . . . It (had) well and truly entered the pelvis, implying that it should normally be expected to deliver vaginally. . . . In this case the head was in the transverse position, which it frequently is in labour, it was below the spines, but was not progressing any further. That is quite a common situation, in particular where an epidural anaesthetic is in place. That situation is exactly the situation where an operative vaginal delivery is indicated.” Later in the report Dr Keeping said: “Kiellands forceps are indicated where the baby’s head is in a position that it cannot just be pulled out by ‘straight forceps’. . . . Where the head is in the transverse position (it) cannot be delivered . . . and must be rotated and then delivered by a straight pull. Such a rotation is accomplished with Kiellands forceps . . . There is the possibility (rare) that in the rotation part of the delivery . . . there may be damage to the cervical cord. [26] Dr Keeping summarised his opinion: “The damage was specifically to the cervical cord of the baby . . . It would appear to have been specifically caused by the rotation part of the Kiellands delivery . . . Unless it can be shown that the rotation part of the forceps, which is before there is any pulling or attempt to deliver the baby, was unduly forceful, then it would appear to be an act of God. There would be many hundreds of thousands or millions of Kiellands forceps deliveries done around the world and this would appear to be a rare complication. It is possible to state that that sort of damage is not caused by traction on the head . . . Straight forceps delivery, with varying amounts of force, are much commoner than the rotational Kiellands forceps . . . It is possible to damage a baby . . . during straight forceps delivery. However that damage is direct trauma to the head and damage to the brain. I think it would be impossible to cause damage to the spinal cord by a straight forceps delivery pulling on the head.” [27] In cross-examination Dr Keeping remained adamant that the plaintiff’s injury must have been caused during rotation and not during the application of a straight traction force. He bases the opinion upon the absence of any observed or recorded case in which the injury occurred during traction. He knew of two similar cases at the Mater Mother’s Hospital at which he has worked for about 25 years. He said (T 301.1-5): “In a Kielland forceps you are twisting the head relative to the body, and it seems to be the twisting or rotating that can damage. It’s a very rare thing, but it’s well recorded in the literature and a big hospital would have seen a few cases.” -- 9 of 17 -- 10 He denied that “some force” is required to cause the injury. He explained: “The two deliveries at the Mater I followed up, and one in particular was one of the most gentle practitioners . . . who had done hundreds of Kiellands. And I ask him specifically in the last week, and he said it was just the usual easy rotation and not a particularly difficult delivery of the head. The reason why it occurs is really unknown but, in the experience of obstetricians as revealed in their writings, the injury can occur with the application of ‘usual’ or ‘appropriate’ force.” [28] One of the articles referred to by Dr Keeping (and relied upon by Dr O’Duffy) was published in the Australian and New Zealand Journal of Obstetrics and Gynaecology in 1998. Entitled “Have Kielland forceps reached their ‘used by’ date?” the authors conclude: “The three large studies of a combined total of 38,262 deliveries suggest the use of Kielland forceps does not increase perinatal morbidity or mortality beyond the rates found in non rotational forceps deliveries. There are, however, two important caveats to consider. The first is a satisfactory analgesia must be provided for attempt at rotational delivery. The second, that the forceps are used by a ‘skilled operator’. A rare but important complication of Kielland forceps delivery was not mentioned in the series, that of high cervical spine injury. There are 22 reported cases of such disastrous complication of Kielland delivery in the literature. The calculated incidents is one in 75,000 deliveries and is such that many obstetricians may not be aware of this complication. The most likely explanation for such cervical spine injury is the rotational component of the delivery being undertaken during a uterine contraction which fix the trunk preventing its rotation in synchrony with the head.” Dr Larkin was aware of the need to avoid rotation during contractions. He testified that the rotation was performed between contractions. [29] Dr Keeping noted that in one of the studies post mortem examination discovered a defect in the foetal cervical cord which it predisposed the infant to the injury. It will be recalled that Dr Wilson conceded the possibility that some rare but specific anatomical defect may predispose one child to injury in a “normal” rotation which would be harmless to those without the defect. Dr Keeping emphatically rejected the plaintiff’s major premise (T 305.10-50): “As a matter of deduction, if a baby is not delivered safely one can assume that the force may have been more than was required to deliver the baby safely? - You can’t assume that it was because it is possible to deliver a baby . . . very carefully . . . with no undue force and yet there is some damage to the baby so because there is damage does not mean that there was undue force . . . So it’s really the situation that if the Kielland forceps were correctly applied and used this sort of injury should not have occurred? - No I think that’s exactly what I didn’t say . . . My reading of the literature, my experience . . . my discussion with the people involved -- 10 of 17 -- 11 in the two disasters at the Mater . . . would lead me to believe that it could happen . . . without any undue force or bad judgment . . . Obviously it can happen with bad judgment and force . . . but I don’t think the fact that the baby is damaged at all means that there was undue force.” [30] It was Dr Keeping’s opinion that the plaintiff’s hypoxia was unrelated to damage to the umbilical cord. He believed that the plaintiff’s quadriplegia on birth which prevented her breathing was the cause of the hypoxia. I accept the opinion. I have already noted that Dr Larkin did not observe any damage to the umbilical cord and the specific nature of the injury, quadriplegia, rather than a generalised dulling of cerebral function support it. The plaintiff is an intelligent and vivacious child. There is no evidence of cognitive malfunction. Dr O’Duffy, too, thought this indicated localised spinal column damage. [31] I should mention some lay evidence led by the plaintiff in an attempt to prove that “excessive force” had been used by the defendant during delivery. The evidence was given by a midwife, Mrs Slynco, who was present during the latter stages of the birth, and by the plaintiff’s mother and grandmother who testified to statements allegedly made by the defendant which are apparently relied upon as admissions of misjudgment or misconduct of some kind. [32] Mrs Slynco’s recollection was that she walked into the delivery room as the baby was being delivered. She was a qualified midwife but her responsibilities at the time were for the care of new born infants. It was for that reason she was called to join Dr Larkin. When she arrived the baby’s head and, she thought, shoulders were visible. She described a pull to effect delivery “a little bit stronger and longer” than she had seen before. It struck her as unusual. In a statement she had given to the defendant’s solicitors in 1995 she said the force used in delivery was stronger than she had observed previously when forceps were used but she would not describe the force as excessive, though admitting candidly that it was impossible to judge whether force was excessive. She thought that the duration of the pull she saw was about five seconds. She had no criticism of Dr Larkin whose reputation as an obstetrician was high. I have no doubt that Mrs Slynco gave her honest recollection but her account is not consistent with Dr Larkin’s, nor with the expert opinions. [33] Dr Larkin described the principal difficulty in delivery as being the extraction of the first shoulder. Once that was freed the other followed easily. If Mrs Slynco is right in thinking that both shoulders were visible when she entered the room then she is not likely to have seen a “long, strong pull”. If she observed the delivery of the first shoulder she may well have seen such a pull but not one which involved the use of forceps. The evidence of Dr Wilson is that once the head is delivered the rest of the baby must follow. At that point in time a caesarean section is impossible. The obstetrician must use appropriate force, which I would understand to be the force necessary to overcome the gripping of the uterus or birth canal. This may, on occasions, damage the baby as Dr Keeping explained. Mrs Slynco’s evidence provides no basis for thinking that Dr Larkin used more force than was necessary to overcome the resistance to delivery. Mrs Slynco was obviously not present when Dr Larkin used forceps to rotate the baby. [34] The evidence of Mrs Breen, and her mother, Mrs Wollins, has curious features. Despite there being some reference in the opening address of the plaintiff’s counsel -- 11 of 17 -- 12 to the “admissions” Mrs Breen concluded her evidence without saying a word about them. She was recalled the following day to give evidence of the conversation which she fixes as occurring in January 1993. She asked Dr Larkin what happened. He said he observed the labour in the hope that the baby would rotate as it descended and deliver spontaneously. Mrs Breen then asked why Dr Larkin had not returned to the labour delivery room at 3.30 p.m. He arrived about 20 minutes later. He answered that he was in constant contact with the midwife. In his affidavit Dr Larkin explains that his rooms are one block away from the hospital and there was no need for him to attend personally throughout the labour. I interpolate that no complaint was made in the evidence that it was in any way remiss of the defendant to return to his rooms when he did. Mrs Breen then asked why the defendant had not performed a caesarean section. She claims he gave no answer. That account, Mrs Breen said, was her entire recollection of the conversation. However she then gave a different account of Dr Larkin’s first answer. She remembered that he said “I thought I broke her neck”. Despite affirming twice more that Dr Larkin had made that statement she retracted it and said she did not know whether Dr Larkin had said it: he may have referred to the diagnosis that had been made of spinal shock and her earlier evidence may have been a paraphrase of what Dr Larkin had said. [35] Mrs Breen added that Dr Larkin had told her that he had never had to deliver a child “in this position before and it was quite a difficult labour”. [36] Mrs Breen claims to have made a note of what Dr Larkin said just after the conversation. She lost the note but gave her solicitors a statement setting out what Dr Larkin had said. When asked to produce the statement so that her veracity on the point could be tested she declined, having taken advice, on the ground of privilege. [37] Mrs Breen’s mother, Mrs Wollins, also gave evidence of the conversation. She accompanied her daughter to the consultation and she also interrogated Dr Larkin. Mrs Wollins asserted that Dr Larkin had told her that Mrs Breen “was in a lot of pain and very distressed” and that he instructed a nurse to “top up the epidural”. Mrs Wollins asked whether a nurse should have been entrusted with such a task. Dr Larkin “shrugged his shoulders and said ‘not really’ ”. I interpolate again to mention that there is no support for this event in any of the hospital records which reveal the attendance of an anaesthetist and no complaint of it in any of the plaintiff’s material. Mrs Wollins claimed to have asked the defendant why he had not performed a caesarean section to which he replied “there was no time, I had to get her out”. He then said “I’m sorry, I thought I broke her neck. It was a long, hard, lengthy delivery. I had to use forceps”. [38] In cross-examination Mrs Wollins added significantly to her evidence. She claimed that Dr Larkin “knew (her) daughter didn’t want forceps used”. The basis of her knowledge was that her “daughter told (her) many times. She worked with special children and (she thought she) remember her saying . . . that she had said to Dr Larkin that she would prefer forceps not to be used”. Mrs Breen provided no corroboration for any part of this testimony. [39] I prefer Dr Larkin’s account of the conversation which appears in paragraphs 32 to 35 of his affidavit. I accept that he did not say he thought he had broken the plaintiff’s neck or that it was too late for a caesarean section. I also accept that the -- 12 of 17 -- 13 delivery was not long and hard or particularly difficult. It is impossible to believe that Dr Larkin said he had never had to deliver a baby ROT. The evidence from the obstetricians is that babies presenting in a transverse position is very common. An experienced obstetrician would have encountered hundreds of such instances. Dr Larkin himself says that by December 1992 he had delivered hundreds of babies from that position. I am satisfied that Mrs Breen and Mrs Wollins have distorted what Dr Larkin said and given a false account to enhance the plaintiff’s prospects of succeeding in the litigation. Negligence [40] There seem to be two bases for the allegation of negligence. The first is that the defendant should have performed a caesarean section rather than attempt rotation and delivery with Kielland forceps. The second is that the plaintiff’s spinal cord injury itself gives rise to an inference that excessive force was used in the delivery. [41] The first basis is absolutely without foundation. The allegation receives no support from the obstetricians. All of them, including Dr Larkin, are clear that this was an appropriate case in which to perform a delivery utilising Kielland forceps and that there was not sufficient indication for a caesarean section. That course is now put forward because it is known that the delivery did injure the plaintiff and that birth by caesarean section would have avoided that outcome. This is impermissible reasoning. The question is: was the decision to effect delivery by Kielland forceps one that should not have been made by the ordinary skilled obstetrician exercising reasonable care? On the evidence the answer is a firm negative. The labour had not been unusually protracted or complicated. The only difficulty was that the baby would not rotate into the correct position. This is a condition frequently encountered. It is not one which, by itself, indicates the necessity for or advisability of a caesarean section. An appropriate course, probably the appropriate course, was to effect delivery as the defendant did by rotational forceps and assisted delivery. Only Dr O’Duffy’s evidence could support the plaintiff. The opinion of the obstetricians is to be preferred. Dr O’Duffy, too, qualified his opinion, which in the end, did not differ from the other experts. [42] The second basis for alleging negligence has no better foundation. The case is not one in which the process of reasoning, res ipsa loquitur, is applicable. In Dwan at 242 Thomas J said: “In the present case the material is of a sufficiently complex nature as to go beyond any situation where the principle res ipsa loquitur could assist the applicant. The circumstances do not suggest that the surgeon did other than observe the usual procedures or that he should have done anything differently. Without such evidence he could not be held liable in negligence.” The phenomenon of childbirth with its risks and the techniques available to avoid or reduce them is not so familiar to the lay tribunal that it can conclude from the fact of injury that there must have been negligence. Dr Keeping’s evidence, which I accept, is that such injuries as the plaintiff suffered can occur in ordinary, careful, indeed gentle, deliveries involving Keilland forceps. In any event the plaintiff cannot rely upon the principle. Having established that injury occurred during delivery she was obliged to prove that the defendant failed to -- 13 of 17 -- 14 take reasonable care during that procedure. There was an attempt to do so by alleging that “excessive”, or “undue” or “inappropriate” force was used. The immediate difficulty is that the use of such adjectives begs the question. Obviously some force was used by Dr Larkin to rotate the plaintiff and then effect delivery and it appears that that force did harm the plaintiff. The question is: did the force exceed that which it was reasonable for an ordinarily skilled obstetrician to use in the circumstances? The only acceptable evidence is that of Dr Larkin himself. No one else was in a position to judge or, with the possible exception of Mrs Slynco, even to observe what force was used, or its reasonableness. [43] The question of excessive force must be approached on two hypotheses. The first is that the injury occurred during rotation: the second that it occurred during traction. On the evidence there is no rational basis for concluding that the injury must have occurred in one or the other. Both Dr Wilson and Dr Keeping had persuasive reasons for concluding in the one case that it occurred during rotation and in the other during traction. Dr Keeping’s opinion may be thought the better relying, as it does, on the fact that there is no recorded instance of traction causing such an injury. Dr Wilson, aware of that fact, nevertheless thought it may have occurred in traction. [44] I propose to discuss both possibilities. Dr Larkin’s contemporaneous note of the rotation was that there was no undue difficulty in rotation. In his letter to Dr Krause of 18 December 1992 (exhibit 25) and in his affidavit he described the rotation as “easy”. In cross-examination Dr Larkin agreed that rotation of forceps should always be gentle and delicate and should stop if difficulty or resistance is met. In re-examination he confirmed that he did not encounter any unusual resistance and that he did not apply a rotational force beyond what was appropriate, that is, reasonable. This is the only evidence on the point. I accept it. Even if I did not there would not be evidence that excessive force was used. [45] The case is no different when one considers the possibility that the injury occurred during traction. There are here, in turn, also two possibilities. One is that the injury occurred when traction was applied by forceps to deliver the head. Dr Larkin said he gave two firm pulls. Dr Wilson agreed that it is sometimes necessary to pull firmly. The resistance was no more than “was to be expected” (T 291.10). The second possibility is that it occurred when Dr Larkin used his hands to deliver the baby’s shoulders and trunk. If the injury occurred in traction it may be thought more likely that it was during delivery of the shoulders which proved more difficult. In this case it is impossible to say that excessive force was used. Once the head is delivered the obstetrician must use whatever force is necessary to deliver the trunk. A caesarean section is then impossible. The baby will die if not delivered quickly. Mrs Slynco may have observed this part of the delivery and had an impression of an unusually strong pull. She herself denied that the force was excessive though conceding that such a judgment is impossible to make. The amount of force to be applied is a matter for the skilled judgment of the practitioner. Dr Larkin said he delivered the first shoulder with one firm pull which lasted four to five seconds. He described this part of the delivery as moderately difficult. Dr Keeping explained that the likely injury flowing from an attempt to free the shoulders was a brachial plexus, which the plaintiff did not suffer. There is no evidentiary support for finding that more force was applied than was reasonably required in the circumstances. -- 14 of 17 -- 15 [46] The allegations of negligence have no basis in fact. The plaintiff has not made out her case. Damages [47] I must assess damages, but will do so briefly. [48] There is no doubt the plaintiff was severely disabled at birth. She could not breath unaided and had no control of any muscle group or limb. She was transferred for emergency treatment and intensive care to the Mater Mother’s Hospital. It is a tribute to the skill and care of the medical and nursing staff there that the plaintiff has made such a remarkable recovery. The plaintiff’s initial disabilities and the milestones of her recovery best appear in the reports of Dr Burke and Dr Davis as well as the assessments made of the plaintiff’s motor skills by the physiotherapists who treated her. Both Mrs Breen and Mrs Wollins have exaggerated their descriptions of the plaintiff’s early condition and her ongoing problems. It must be recognised that the plaintiff’s injury was a cause of considerable anxiety and distress for Mrs Breen and her mother both of whom are genuinely concerned and protective of the plaintiff. Nevertheless this action has been on foot since the plaintiff was nine months old and it is likely that every childhood ailment and misfortune has been observed with an eye to its possible monetary value. It is not surprising that in such circumstances the plaintiff herself would be manipulative and temperamental at times, as she is reported to have been, and that there would be an exaggeration of her symptoms. [49] The plaintiff’s early difficulties were the result of lowered muscle tone itself a consequence of a damaged spinal cord. She was slow to crawl and walk. For some months feeding was effected by a tube left permanently in place which was a cause of irritation to the plaintiff and anxiety to her parents. By the age of three, as appears from exhibit 15, the plaintiff was performing the tasks expected of a child of that age. She could walk, run, jump, pedal and had good eye hand, and eye foot coordination for catching, throwing, batting and kicking. She had good balance and her speech and language were noted to be good. When the plaintiff was four years and nine months old, in August 1997, she was assessed comprehensively by a physiotherapist and occupational therapist (exhibit 17). She had virtually all the skills expected of a child of her age. She was described as a friendly, talkative, cooperative girl who concentrated well and tried hard during the assessment. Her mother reported that the plaintiff was independent with feeding, dressing and toileting. In terms of neurological signs her muscle tone was within the lower range of normal and she was coping well with a wide range of activities. The only noted area of difficulty was a weakness in lifting her head from the floor when lying on her back. At the time the plaintiff’s parents were contemplating moving from the Gold Coast to northern New South Wales. The therapists noted that in view of the plaintiff’s “excellent progress no follow up . . . will be organised following her family’s move . . . and she will be discharged”. [50] On 4 May 1994 Dr Burke, a neurologist, reported that the plaintiff had made “very encouraging progress in the past few months. Her head tilt seems to have largely resolved with physiotherapy . . . (the plaintiff) has shown remarkable improvement in the 16 months since she was virtually immobile at the Mater Mother’s Hospital”. On 27 April 1995 Dr Burke again reported that he had seen the plaintiff who was then about 2½. According to Mrs Breen the plaintiff was developing normally but -- 15 of 17 -- 16 still had problems with eating and vomiting which seemed related to certain foods and fatigue. Examination revealed a slight head tilt to the left but no restriction in neck movement. The plaintiff ran well without weakness. There was some slight in-toeing on the left but hand coordination was normal. Dr Burke could not detect any functional abnormality. The slight head tilt was a consequence of the initial injury but was not significant. In July 1998 Dr Burke reported, for the purposes of the action, that he could not detect any muscle weakness in the plaintiff’s limbs and sensation was intact. He could not detect any evidence of disability. There was some minor weakness on the right side of the neck and altered tone on the left ankle but these were minor neurological findings which did not appear to be causing any impairment to the plaintiff’s everyday activities. He thought it was unlikely she could participate in sporting activities at school to the same extent as other children and that she would probably need to choose a sedentary form of employment rather than a more physical occupation. Dr Burke’s last words on 20 March 2002 was that the plaintiff did not appear to have any neurological deficits as a result of her birth injury. [51] The plaintiff is slightly built and a little under weight for her age. She tires easily and is prone to respiratory infections and vomiting which may have an emotional element to it. The plaintiff’s ongoing problems are those just described. There was a very late attempt to link them to the initial injury but the defendant was given notice of the attempt only on 5 April 2002. The trial started on 8 April. It had been set down urgently because of the defendant’s condition. Orders were made for the delivery of medical reports by specified dates. The plaintiff did not comply with the orders nor with UCPR 423. The defendant was not in a position to meet the new allegation and for reasons which I gave at the time I refused the plaintiff leave to adduce evidence in support of it. From what did appear in evidence it was by no means clear that the connection could be made. The attempt would have involved a lengthy and complicated investigation of the plaintiff’s history of respiratory illness as well as treatment at several hospitals and by several doctors. [52] On the evidence the plaintiff has not suffered from any significant injury as a consequence of damage to her spinal cord since about age five. Most of her distress would have occurred in the initial 12 months of life with respect to which she would have no recollection. She has made a good recovery and in the assessment of her mother and grandmother continues to improve in terms of strength and stamina. Given the limited duration of her serious disabilities and her lack of recollection of them I think an award of $10,000 for pain and suffering is sufficient. [53] There is no basis for assessing damages in respect of economic loss. There is obviously no past loss and no prospect of any future loss. The plaintiff is described as bright and outgoing. There is no reason to think she cannot obtain qualifications and employment suited to her skills and abilities. Even if it be accepted that at present she lacks the endurance of her peers there is no basis for thinking that will be so when she enters the workforce. There is, in any event, no evidence that she will suffer economic detriment by being unable to engage in occupations involving strenuous physical activity. [54] In relation to the provision of past care by the plaintiff’s parents I would accept the defendant’s submissions and assess damages in the sum of $30,000. I would allow nothing for the future. -- 16 of 17 -- 17 Special damages have been estimated at about $18,000 and I would allow two thirds of this amount. [55] There will be judgment for the defendant against the plaintiff with costs to be assessed on the standard basis. -- 17 of 17 --