Infant death leading to complaint and claim

Medical Protection was recently involved in representing a consultant obstetrician and gynaecologist, Dr A, and a consultant paediatrician, Dr B, who were alleged to have failed to prevent an infant death through negligence and by failing to provide appropriate treatment. Medical Protection was able to defend the claims brought against Dr A and Dr B. This article explores the issues in this type of claim.

The case
Ms Y was admitted in early labour under our member, Dr A, a consultant obstetrician and gynaecologist. Dr A examined Ms Y and ordered intermittent cardiotocography (CTG) and an enema for Ms Y. The nurse examined Ms Y and found cervical dilation of 2 cm. The nurse noted that the result of the CTG was reactive.

On the next day, the nurse called Dr A to see Ms Y. Dr A noted that Ms Y passed two clots vaginally, cervical dilation was at 3 cm and the foetus head was still high. The CTG results were unremarkable. Dr A diagnosed Ms Y with concealed abruption. He advised Ms Y to undergo an emergency Caesarean section, which she agreed to, leading to an uneventful delivery of her baby, with an Apgar score of 9. The nurse noted that Ms Y was stable postoperatively, with no excessive blood loss. Dr A saw Ms Y and noted that she was well. Ms Y and her baby were discharged in good condition 2 days later.

Four days later, Ms Y brought her baby to the Emergency Department. The baby was seen by a medical officer who noted a history of jaundice for 3 days. On examination, the medical officer noted that the baby was active to handling and had no pallor. The medical officer’s preliminary diagnosis was neonatal jaundice. The baby was admitted under the care of another of our members, Dr B, a consultant paediatrician. Dr B decided to perform blood tests, which showed a serum bilirubin level of 18.0 mg/dL. Dr B ordered double phototherapy to be started and serum bilirubin test to be repeated the following morning.

The next day, the baby was seen by Dr B who, on examination, noted that phototherapy was being administered and the baby was active and feeding. Examination of the cardiovascular system yielded normal results, and the bilirubin level was decreasing. Examination of the abdomen revealed that it was soft. Dr B ordered that single phototherapy be continued and serum bilirubin test be repeated the next morning.

On the following day, the medical officer received a call from the nurse, who informed that the baby had collapsed and was unresponsive. The medical officer noted that the nurse had already commenced resuscitation by bagging. The medical officer also noted that the baby was unconscious, had no spontaneous breathing and was pale. The baby’s pupils were fixed and dilated, and oxygen saturation was unrecordable. Active resuscitation was commenced. The baby was intubated. Dr B arrived at the hospital 30 minutes later, reintubated the baby and applied further bagging. Oxygen saturation picked up and the baby was transferred to the ICU.

In the ICU, the baby was connected to a ventilator and given normal saline and sodium bicarbonate. Oxygen saturation picked up and the baby’s peripheral perfusion appeared better. Echocardiography was performed, which was normal. The baby was given another bolus of normal saline, and the saturation and perfusion continued to improve. Dr B ordered that the baby be given dobutamine, penicillin, netromycin and intravenous (IV) 10 percent dextrose.

On examination 1 hour later, Dr B noted that the baby was pink and perfusion was good, with blood pressure of 60/30 mm Hg. The baby had no spontaneous breathing and the pupils were still fixed and dilated. The baby was gasping and had jittery upper limbs and clenching of the fists. Dr B diagnosed the baby with possible hypoxic ischaemic encephalopathy and ordered treatment with dextrose saline, dobutamine, penicillin, netromycin and IV phenobarbitone 30 mg.

Another hour later, Dr B noted that the baby was still stiff and jittery. The baby’s pupils were fixed and dilated. Dr B ordered a chest X-ray, echocardiography and cranial ultrasound, the results of which all came back normal. Dr B ordered further IV phenobarbitone 15 mg.

Dr B saw the baby 30 minutes later and noted that there was no change. Dr B therefore ordered IV phenobarbitone 15 mg immediately as well as repeat arterial blood gas testing. Ninety minutes later, Dr B noted that the arterial blood gas test showed pH of 7. Dr B therefore ordered sodium bicarbonate to be removed from the drip and that the baby be taken off dobutamine, while IV fluid and dextrose saline were to be continued.

In the afternoon, Dr B noted that the baby’s general condition was the same. Examination of the cardiovascular system revealed no abnormalities, but examination of the abdomen revealed that the baby was hypotonic and had no reflexes. The baby was gasping on and off and had no spontaneous respiration. Dr B ordered treatment to be continued and a blood test to be performed.

One hour later, the baby’s condition was the same. Dr B ordered CT of the brain, electroencephalography and blood test for galactosaemia. These were performed and Dr B noted that the electroencephalogram showed no brain activity. CT scan showed subdural haematoma along the posterior fossa.

The baby’s condition did not improve and started to deteriorate on postadmission day 10, with bradycardia. Dr B discussed the issues of resuscitation if the baby collapsed with Ms Y and Mr Y, and they did not wish for resuscitation. The baby had a cardiac arrest and was declared dead the same day.

What happened next?
Ms Y brought a complaint against Dr B to the Medical Council. Medical Protection was involved in the complaint and successfully defended it, with the Medical Council concluding that there were insufficient grounds to support the allegation of misconduct against Dr B.

Ms Y nonetheless proceeded with a claim against Dr A and Dr B, alleging there was:

• Negligent delivery of the baby;
• Failure to note Ms Y’s medical history prior to delivery of the baby;
• Failure to monitor the baby’s health prior to discharge;
• Failure to perform appropriate investigations upon the baby’s readmission to hospital;
• Failure to give appropriate treatment to the baby prior to the collapse;
• Failure to provide appropriate nursing instructions;
• Failure to appropriately resuscitate the baby; and
• Failure to provide an appropriate amount of phenobarbitone.

Upon receiving the claim, Medical Protection instructed local panel solicitors to file a defence on behalf of Dr B. In addition, an internal review of the evidence was held between the claims manager and medicolegal consultant at Medical Protection, who did not identify any areas of negligence. Medical Protection therefore proceeded to instruct a consultant obstetrician and gynaecologist and a consultant paediatrician to provide expert evidence on this matter. Both experts supported Dr B.

The reports were disclosed to Ms Y and she was invited to discontinue this action. She failed to do so and, despite not producing any evidence, proceeded with the claim. Medical Protection proceeded with defending this matter.

Outcome
The matter went to trial and the judge concluded that:

• Ms Y had failed to prove her case on a balance of probabilities against our members Dr A and Dr B. This was especially because Ms Y had failed to provide any supportive expert evidence.
• Ms Y had also failed to prove that Dr A and Dr B caused the demise of the baby.

Ms Y appealed the decision and Medical Protection maintained the defence. The Court of Appeal found the case to be in favour of our members.

Learning points
We often see claims being brought against clinicians despite no expert evidence being obtained by the claimants to substantiate their allegations. Medical Protection has had a number of successful trials recently, where we have been able to defend a member’s actions because we have provided supportive expert evidence whereas the claimant has not.

Medical Protection will always consider the evidence at their disposal and what further evidence is required in order to support the defence of a member. The claimant’s position on what evidence they intend to furnish will be their decision. However, Medical Protection will always endeavour to provide the court with all the evidence possible in order for our members to receive a fair trial.