A Recent Decision - McLennan v MacCallum

Editor's note

Cerebral palsy cases have seen some high profile judgments handed down over the years, most notably Simpson vs. Diamond, which remains the highest damages award in Australian medical negligence history. A recent case in WA highlights the evolution of medical opinion on cerebral palsy causation, from a model where perinatal hypoxia was considered central to a more multifactorial framework.

This matter was in relation to the birth of the first plaintiff Jacob McLennan in May 1997 and was heard before the Western Australian District Court this year. Yvonne McLennan, Jacob's mother and second plaintiff, was admitted to Kalgoorlie Hospital on 14 May 1997, for induction and management of the delivery. Jacob was born with severe encephalopathy (dyskinetic cerebral palsy) and is severely disabled. It was alleged that the first defendant, primary treating specialist (Obstetrician & Gynaecologist) Dr. MacCallum failed to provide reasonable care and skill in the provision of advice and/or treatment, provided to Mrs. McLennan.

The Department of Health operated the hospital and was named as the second defendant. The court was required to determine the primary cause of the outcome and whether it could have been avoided, had appropriate steps been taken by the defendants immediately prior to and during Jacob's delivery.

The Facts

Mrs. McLennan was 34 years of age and this was her second pregnancy. She had been under the care of her GP, with regular monthly visits to 30 weeks gestation and subsequently fortnightly. At 35 weeks she reported good foetal movement. Her GP advised that the foetus was in the breech position and referred her to Dr. MacCallum. She had her first specialist visit on 7 May 1997. Dr. MacCallum examined her and advised that she was two to three centimetres dilated and that she should book into hospital for induction of labour using prostaglandin gel (Prostin).

Mrs. McLennan was admitted at 1700 hours on 14 May 1997. At 1800 hours Dr. MacCallum examined her, applied Prostin and indicated that he would probably deliver the baby in the morning. At approximately 0315 hours Mrs. MacLennan's waters broke. The midwife examined her and noted that the contractions were 3 minutes apart. She was moved to the labour ward at 0400 hours. She was ambulatory and stated that the midwife suggested that she go to the toilet as this would make her more comfortable. While in the toilet she began to deliver. She returned to her bed and was given an oxygen mask by the midwife. Shortly thereafter, Dr. MacCallum delivered the baby, assisted by the midwife. Jacob was delivered at 0458 hours. He was apnoeic and Dr. MacCallum and a paediatrician commenced resuscitation. Midwife Jones observed that there were no more than 15-20 minutes from the emergency to the delivery indicating the period of bradycardia was no greater than 15-20 minutes. The baby was evacuated to Perth's Princess Margaret Hospital, by the Royal Flying Doctor Service.

The Allegations

The plaintiffs alleged that Dr. MacCallum did not give Mrs. McLennan advice regarding the risks inherent in a breech delivery. Mrs. McLennan had indicated that she preferred a vaginal delivery.

The plaintiff alleged that the second defendant, the Western Australian Health Department, breached its duty of care in the provision of medical services at Kalgoorlie Hospital. The alleged breach comprised failure to keep Dr. MacCallum abreast of CTG monitoring and the rupture of the membranes in a timely manner (prior to 0400 hours.) Further alleged was that the hospital failed to take adequate steps to increase foetal heart rate and to improve blood flow between 0430 - 0500 hours. The allegations against the hospital were abandoned.

The Evidence and the Verdict

The court heard evidence from a large number of experts with significant obstetric experience. The court noted that almost ten years had elapsed from the birth of Jacob until the hearing date. This presented difficulties in determining the appropriate standard of care at that time, as midwife Jones died in 2002.

The judgment provides details of the evidence of the experts in the following areas:

• breech presentations;
• natural or abdominal delivery when foetus in complete breech presentation;
• the use of Prostin;
• CTG monitoring; and
• induction

The court found that neither defendant was in breach of their duty of care.

There was however, some difference of opinion regarding Mrs. McLennan's health status and her smoking habits. The court found that her evidence was not reliable on significant issues. It was rejected on the basis of lack of cogency and conflict with more credible evidence from midwives.

The significant body of evidence was in relation to causation and this was summarised in the decision. The plaintiff's case against Dr. MacCallum and the Department of Health representing the Kalgoorlie Hospital were dismissed.

In recent times there have been only a small number of cerebral palsy cases brought to trial. The issue has been further complicated by an increasing body of evidence with regard to perinatal viral infections. The reasoned argument of the judgment sets an important precedent. Reading of the full decision is recommended: http://www.austlii.edu.au/au/cases/wa/WADC/2007/67.html

Dr. Michael van der Griend, MBBS-UNSW, FRANZCOG, FRCOG
Medical Adviser - Invivo