The First Hall of the Civil Court, presided over by Mr Justice Mark Chetcuti, on October 28, 2013, in the case “Albert and Astrid Gambina as curators of their minor daughter v The Golden Shepherd Group Ltd as operators of St Philip’s Hospital and Astrid Camilleri” held, among other things, that there was no professional negligence and no wrongdoing on the part of the hospital.
The facts in this case were as follows.
On January 14, 1999, Carla Gambina, daughter of Albert and Astrid Gambina, was born at St Philip’s Hospital. During her delivery, the baby suffered a rupture to her right shoulder – ‘traumatic right post ganglionic brachial plexus lesion’ as results from a certificate released by Dr A. Galea Debono dated October 18, 1999.
Her parents claimed that this condition could have been avoided if precautions had been taken by Astrid Camilleri as well as by the administration of St Philip’s.
Faced with this situation, Albert and Astrid Gambina, as curators of their daughter, proceeded to file legal proceedings for damages against the hospital and Dr Camilleri. They requested the court:
(1) to declare that their baby daughter suffered a traumatic right post-ganglionic brachial plexus lesion during birth owing to negligence of defendants or any of them;
(2) to declare defendants or any of them, were solely responsible for damages suffered by their daughter;
(3) to liquidate and condemn defendants to pay damages.
The hospital, in reply, contested the legal proceedings. It said that their claims were unfounded in fact and at law and should be dismissed. They denied that St Philip’s acted negligently towards their baby daughter.
Dr Camilleri also disputed responsibility. She claimed to have acted with the diligence and prudence required by law, in the exercise of her profession in the birth of their daughter.
The court considered that at issue was whether the doctor carried out her duty up to reasonable medical standards and whether the hospital failed in any way to contribute to the injury.
The court said that in cases such as these, involving specialised medical services, the courts often relied on technical medical expert reports, which reports should not be lightly discarded. The court should ignore such expert’s report only if the conclusions were unreasonable. In this regard, there had to be good reasons to cast doubts on the technical report.
It considered that according the expert report, neither Dr Camilleri nor the hospital were responsible for the incident. According to case law, the relations between a doctor and patient were more contractual in nature.
A doctor was obliged to act up to the standards expected from a doctor in such a case. A doctor was obliged to use the diligence which was expected from a doctor carrying out such a duty (re Corte Cassazzione d’Italia dated July 21, 1989, case no 3470). This meant that while a doctor had to show that he performed up to the standards expected from his profession, the patient had to show that something irregular was committed during the medical intervention – something which was not anticipated during the operation of this type: Tessi Ellul v Dr Astrid Camilleri (App) dated May 28, 2010.
The medical expert report found no wrongdoing on the part of Dr Camilleri and the hospital, and this court had no reason why it should discard this report
As regards proof, the burden of proof rested with the client, the failure of the doctor and that the failure of the doctor brought about the injury: Corte di Cassazzione of Italy dated December 21, 1978. Reference was made to Margaret Brazier in Medicine, Patients and the Law (Penguin Books 1987 edit. pg 80) “proving negligence by the doctors does not conclude the case in the patient’s favour. He must also show that his injury, his worsened or improved condition, was caused by the doctor’s negligence”.
Proof: The court had to be guided by medical practice and not simply decide what should have been done: Rose Gauci et v Donald Felice et App dated October 31, 2008. Two requisites had to be established for a doctor and in this case the hospital wasto be held responsible (Dunne v National Maternity Hospital 1989) IR 91;
“Principles thus laid down… can in this manner be summarised:
1. The true test for establishing negligence in diagnosis or treatment on the part of a medical practitioner is whether he has been proved to be guilty of such failure as no medical practitioner or equal specialist or general status and skill would be guilty of acting with ordinary care.
2. If the allegation of negligence against a medical practitioner is based on proof that he deviated from a general and approved practice, that will not establish negligence unless it is also proved that the course he did take was the one which no medical practitioner of like specialisation and skill would have followed and has been taking the ordinary care required from a person of his qualification.”
It resulted that in this case Mrs Gambina entered hospital to give birth to a child. During the birth, the head of the child did not come out completely as the child was not in the correct position for an easy delivery without hindrance. The midwife tried to physically help the baby come out, but did not manage.
Dr Camilleri had to intervene quickly to save the life of the baby from suffocation. She asked that the legs of the mother be place upwards in a litotomy position. She directed her husband to help his wife from the neck, to allow her push in an effective way. She also asked the midwife to help her apply pubic pressure, as the mother tried to give birth to the child. She tried with her hands to move the baby’s shoulder, but did not succeed. She requested the midwife to bring a synotcinon drip to aid the mother push as the maternal effort was lacking, as well as for the episiotomy scissors to cut the mother in order to facilitate the delivery. She did not manage however to use them as the baby was born.
In court, Dr Camilleri explained that the baby needed to be pulled or rotated – otherwise she would not be able to breathe or would live with cerebral palsy and later die. She said that she did what she thought was best to save the life of the baby. The baby was stuck in an incorrect position and she said that some force had to be used. Dr Camilleri admitted that the baby was injured with all the pulling.
The baby was born within five minutes from when her head first appeared. Dr Camilleri said that they had to pull the baby, otherwise the baby would not have been born alive. Prior to the birth, there were indications that the baby was big, though its weight was well within normal limits. The court noted that the ante-natal management of Mrs Gambina’s pregnancy was correct. Dr Camilleri was present well before the second stage of delivery. As soon as the baby was born, they realised that she was suffering from a condition known as Erb’s Palsy which meant “the paralysis of certain muscles of the upper limb such that the limb may not be raised from the side and all power is lost in flexing the elbow as well as supinating the forearm that is turning palm of the hand facing upwards”.
All hospital equipment was of good working order.
Dr Camilleri perfomed vaginal manipulation, McRoberts manoeuvre and finally fundal pressure and suprapubic pressure. Before she could carry out episiotomy and syntocinon infusion, the baby was born.
“Fundal pressure is not a method recommended to the modern obstetrician. However, here we are faced with a situation where after other manoeuvres had failed, fundal and suprapubic pressure were applied. It was whether using a part obsolete method (fundal pressure) or let the baby die jammed between two worlds. I cannot condemn a manoeuvre, which admittedly in combination with others, saved baby Carla’s life.”
The medical expert report found no wrongdoing on the part of Dr Camilleri and the hospital, and this court had no reason why it should discard this report. St Philip’s Hospital was also cleared from responsibility. Dr Camilleri was a qualified person in her practice and was assisted by a midwife and a paediatrician. The hospital was not obliged to provide another person during childbirth.
The labour room and hospital were properly equipped. No proof was brought to show any failure on the part of the hospital. St Philip’s was not obliged to have a special care baby unit for extraordinary contingencies though it would be expected that the hospital would be equipped to handle complications during a Caesarian birth. It was not proven that the condition of the baby became worse by having to be taken to St Luke’s instead of receiving treatment at St Philips.
For these reasons, on October 28, 2013, the First Hall of the Civil Court gave jugdment by dismissing all claimants’ requests. It declared that it was not proven that Dr Camilleri or St Philip’s were responsible on grounds of negligence or lack of care for the injury suffered by their daughter.
Dr Grech Orr is a partner at Ganado Advocates.