Sarah Lunn v Edward Paul Trevor GiblinTort - negligence - damages

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Sarah Lunn v Edward Paul Trevor Giblin
Tort - negligence - damages
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Tort - negligence - damages

DARWIN, 13-17 July 1998 (hearing), 30 July 1998 (decision)

#DATE 30:7:1998



Plaintiff Mr David Smith

Defendant Mr Darcy Stratford


Plaintiff: Cridlands

Defendant: Morgan Buckley

Order:judgment for plaintiff.


In this proceeding, the plaintiff claims damages for negligence and breach of contract against the defendant, who is a medical practitioner.

The plaintiff is a 45 year old woman who lives in a state of de facto marriage with one John James. The relationship has been on foot for 13 years and the couple have two sons. They are Jac, born on 12 March 1988, and Sam, born on 1 April 1992.

The plaintiff and Mr James own and run a rambutan orchard on an acreage just south of Batchelor. The orchard is about 120 kilometres from Darwin. The couple lived together at the orchard from the birth of their son Jack but moved to Darwin in January 1998. The plaintiff, who has recently completed a law course, is presently employed as an articled clerk with the Attorney General's Department. Mr James attends to the running of the orchard by commuting from Darwin, as does the plaintiff less frequently.

The plaintiff was born in South Australia but her family moved to Sydney in about 1968. The plaintiff married in 1975 but the marriage broke down in 1981. Soon after getting married the plaintiff had a pregnancy terminated at six weeks. She remained in the surgery for about four hours and returned to work the next day. A few years later, the plaintiff had a laparotomy to deal with a ruptured ovarian cyst. The plaintiff fully recovered after each of these procedures.

After the break-up of her marriage, the plaintiff came to Darwin in 1982. She met Mr James in 1985. The plaintiff occupied the position of manager of the ABC radio station until the birth of her son Jack in 1988. She did not return to the ABC following Jack's birth.

The plaintiff became a patient of the defendant in 1983. The defendant was in general practice in Darwin in partnership with Dr David Welch. The plaintiff tended to deal more with Dr Welch as time passed because the defendant was very busy with the obstetric part of his practice.

In about August 1987 the plaintiff was diagnosed as pregnant and was referred by Dr Welch to the defendant. Thereafter, the defendant managed the plaintiff's pregnancy.

The plaintiff was aware that the defendant was not a specialist. She was 35 at this time which was then considered rather old for childbirth. She was uncertain about the problems which might be expected. She made it plain to the defendant that, in the event of any complication, a specialist would be brought in. The defendant agreed with this condition. This matter was discussed at an early stage of the pregnancy and was referred to several times thereafter. At a late stage, there was a conversation at which John James was present when the defendant confirmed that a specialist would be engaged if maters did not run smoothly.

The plaintiff attended the defendant's surgery at regular intervals during the pregnancy and the ante natal period was uneventful. The birth was expected, according to the plaintiff, on 26 February 1988. The defendant's calculations led him to believe the due date was 2 March 1988.

Whatever be the correct date, it came and went. Initially there was no particular concern but when labour had not started when almost two weeks had passed, arrangements were made to induce the birth.

The plaintiff was admitted to the Darwin Private Hospital early on 12 March and was taken to the delivery suite. She was examined by a midwife to see if any dilation had occurred.

Mr James accompanied the plaintiff and it was intended that he would remain throughout the delivery.

The midwife expressed some concern that the baby's head had not locked in and there was some talk of the induction being called off. But after the arrival of the defendant, it was decided to proceed. An injection was administered and a drip was put in place and started.

At about 10.00a.m. the plaintiff began to experience contractions. At about 11.00a.m. the contractions became very strong and the plaintiff was offered Pethadine by a nurse and got into bed. She was also given a mask through which nitrous oxide could be inhaled. Then followed about 1.5 hours of contractions during which the process of cervical dilation occurred.

The plaintiff pushed hard and strenuously over a long period. The baby moved so its head could be seen and then stuck. The plaintiff became exhausted and distressed and asked for help. The defendant was present at this stage and said he would do a forceps delivery. He gave the plaintiff an injection in the skin outside the birth canal, which is called a pudendal block. He cut the skin at the opening of the birth canal. This procedure is called an episiotomy and widens the opening of the birth canal. The defendant then achieved the delivery of the baby with the use of the forceps.

The plaintiff, although hugely relieved, was, in her own words "pretty knocked up". The plaintiff was shown the baby and was assured that he appeared healthy. The defendant then began pushing on the plaintiff's stomach and pulling on the cord which was still inside the plaintiff. This was an attempt to free the placenta which had not been discharged spontaneously. The defendant then said that he was going to do a manual removal of the placenta and then embarked upon this undertaking.

The plaintiff's description of what followed was expressed as follows:

"Well, basically it was hard for me to see much because I was on my back and he was at the other end of the bed, but the procedure involved him placing his hand up through my cervix and into my uterus and scraping at the wall of the uterus to dislodge the placenta.

Could you feel that?---It was unbelievably painful.

Right?---And he did that repeatedly. He did that over and over and it was worse for me than any part of the birth that I had experienced that day.

Can you tell us how you reacted to that, physically?---I was very distressed. I was crying, I was shouting out, I was writhing around. It was an absolutely hideous experience. I wouldn't want to ever repeat it. It was - it was incredibly frightening.

How long did that go on for, do you know?---My sense of time would be distorted, but I'd have said several minutes. He made a number of attempts. He - it didn't come out in one piece. He - he did it over and over and over again. It felt like World War III to me."

Mr James confirmed that during this procedure the plaintiff was grossly distressed and was "writhing in agony" throughout. Mr James described how from time to time the defendant pulled out "pieces of meat" and when he desisted, said "I think I got it all".

The defendant in his evidence described the forceps delivery. He said he then put the baby on the plaintiff's abdomen. This enabled him to observe the pulsation of the cord and quickly check the baby's well being. He then placed two umbilical clamps on the cord five or six inches from the baby. The cord was then cut between the two clamps. The baby was then removed by a midwife for cleaning. The defendant then attached a pair of long forceps to the cord close to the vulva. If the forceps move away from the vulva it is a sign that the placenta is separating.

In this instance, the defendant said that he was pleased to see that the forceps moved away an inch or so. There was also a small bleed known as "a show" which is common when placenta begins to separate.

The defendant then commenced a procedure known as the Brandt-Andrews technique of continuous cord traction. The heel of the left hand is placed above the pubis against the uterus. The right hand holds the forceps and two pounds of pressure is applied to the cord to help ease the placenta off the wall of the uterus and deliver it out through the cervix. The defendant carried out this procedure but it was not successful. He decided to undertake the manual removal of the placenta.

The defendant's account of what happened thereafter is recorded in the transcript as follows:

"At this time, that is, back in March of 1988, did you have a usual practice in relation to the removal of separation of the placenta from the uterus?---My normal practice, I believe in distinction from other obstetricians, was to wait about 30 minutes or thereabouts, for the placenta to separate. I'm aware that it's been said today that the normal teaching is to wait 30 minutes - 60 minutes or perhaps 30. My observation of practical obstetrics is that it's rarely as long as 30 minutes, let alone 60.

And on this occasion, do you know if you followed your usual practice to wait 30 minutes?---I know that I didn't.

And why didn't you follow your usual practice on this occasion?---Firstly, because I had been exhibiting some pressure on the cord and there had been no progress. Secondly, Sarah was distressed and very tired, exhausted. Thirdly, I was concerned about bleeding. The total blood loss was not great but there was some bleeding occurring at the time. She'd - Sarah had had to put up with 90 minutes of pushing. And finally, I was aware that the pudendal block had been put in about 30 minutes before and normally they last about 60 minutes and I wanted to intervene before that time."

Then, after making some comments about the extent of the blood loss, the defendant went on to describe what happened, as follows:

"Right. Well, after applying the lotion, what did you do?---I did that, I inserted my right hand - or the fingers of my right hand through the - into the vagina and then followed the cord up to - through the cervix to the placental surface.

And at that time, where was your left hand?---It was holding the fundus or the uterus firmly, yes.

As previously described?---Yes.

Thank you. All right. Now, what did you feel with your right hand?---Normally - well, having come to the - the slippery smooth surface of the foetal - the surface of the placenta, then moved to the side of the placenta to begin peeling - peeling it off.

And what did you do?---Well, my first impression was that this was completely different from anything that I'd felt before.

All right. Perhaps you could just tell us what you had normally felt in the past when you have been engaged in a manual removal of a placenta?---Yes, normally, having - having reached the slippery surface and moving to the side, you find a - an edge which is a rolled edge attached to the uterus and you can then begin sweeping the ulna border of your - of your hand in firm but gentle motion. In the plane of cleavage, I think, described it as being like pulling a rubber bath mat with those plastic suction caps off a wet bath. It's just peeling it off.

So that's the normal situation that you had experienced previously, is that right?---Yeah, many times, yeah.

And would you please tell His Honour then, in what way this particular occasion it was different?---When I moved to the side of the placenta, there appeared to be no edge at all. There was no distinction between the placenta and the wall of the uterus. The placenta appeared to be part of the uterus.

And what did you do?---I continued to feel around the edge of the placenta, looking for a plane of cleavage somewhere.

And just pausing there, can you tell us what you mean by 'a plane of cleavage'?---Well, just the part of the decidua between the placenta and the uterine wall.

And did you find a plane of cleavage?---At first, no. I finally did, though, on one edge, perhaps only four or five centimetres long, which was a normal-feeling edge.

Well, having found that plane of cleavage with the normal-feeling edge, what did you do?---Well, then I commenced to do the normal manual removal.

And the normal manual removal in what way?---Well, with firm strokes, exploring or moving the placenta off the wall of the uterus.

And were you successful?---No, not really.

What happened?---It appeared to be okay for a few seconds and then pieces - it was obvious that there were pieces - well, pieces of the placenta came away and it was obvious that there was something abnormal about the situation.

And had you experienced that before?---No.

What did you do when that happened?---It was of some concern to me at that time because a normal routine manual removal is a very simple thing and this had ceased to be routine. The - I think that at the time I felt that the option to stop at that time was no longer an option for me. I'd removed - - -

Why was that?---Well, because I had removed some segments of uterus which had come out separately, causing some bleeding, and the best way to allow contraction of the uterus to prevent further bleeding, was to get the rest of the placenta out.

And so what did you do?---I then proceeded to separate out, as best I could, the remaining placenta.

And in what way did you try and separate out the remaining placenta?---Well, it was a continuation of the normal manual removal of the placenta, except that it was very adherent and there was no clear line of separation.

Thank you. Does this mean then that the remainder of the placenta that you removed came out in one piece or came out in several pieces?---It came out in several pieces.

And did this involve you introducing your hand and arm through the cervix on a number of occasions?---My hand, yes, through the cervix on a number of occasions.

Thank you. And for how long did you continue with this manual removal?---It was a difficult one and I don't know the exact time of that. It was certainly more than five minutes and possibly ten.

And at the conclusion of your efforts to manually remove the placenta, what was the feeling inside the uterus?---What happens after a manual removal is that a final palpation of the internal lining of the uterus is made to make sure that there's no retaining products. I did that. The surface of the uterus was uneven. I felt that I had completed the manual removal, but because of the unusual adherence I had to say that I wasn't sure whether it was complete."

I should add that the hospital notes record that the time taken from the birth to the removal of the placenta was ten minutes. The notes also record that the overall blood loss was 400 mls, which is described as normal. I should also add that the defendant said that in the 1980s he delivered about 100 babies per year. In about two to five instances annually the placenta was not expelled spontaneously and had to be manually removed.

The defendant said that at the time of this delivery he was familiar with a phenomenon known as placenta accreta, although he had never encountered the condition in the course of the many hundred deliveries had had carried out. This is not surprising, as statistically the condition occurs in between one in seven thousand to one in fifteen thousand cases. It occurs when the placenta invades the wall of the uterus and becomes fused to it.

The defendant said in evidence that he diagnosed placenta accreta as soon as he began the manual removal because the placenta was quite different from a normal placenta. This diagnosis was not recorded in the hospital notes but was recorded by the defendant in his own clinical notes which were written up in the nurses' station not long after the birth.

The question of this diagnosis is one of the disputed issues in the case and is a topic to which I shall return later.

After the manual removal of the placenta the defendant repaired the episiotomy and a photograph of the parents and child was taken. The defendant then went on his way.

The plaintiff was in a shocked state. She said that had she been informed that a complication had been encountered she would have insisted on the summoning of a specialist. She said that she was not told of any abnormality and there was no mention of placenta accreta.

The plaintiff remained in the delivery room for eight hours. During this time she was unable to pass urine and frequently fainted. She was eventually taken to a ward very late that night.

The plaintiff remained in hospital until 20 March 1988. The baby became ill and was violently vomiting. The matter was referred to the defendant who called in a paediatrician who placed the baby in a humidicrib.

The plaintiff had been put on a course of antibiotics by the defendant. She passed a number of blood clots which were closely examined by the nurses.

The plaintiff remained very tired. The first post natal visit by the defendant occurred on the third day. It was the visiting hour and the plaintiff had visitors. The defendant felt the plaintiff's abdomen and looked at the nurses' charts. After a week the baby was better and was returned to the plaintiff. By 20 March the plaintiff was still very tired and had a racing pulse. She could not walk any distance without stopping to rest. She was told that she was to go home and arranged to be picked up. As she was gathering her belongings, a nurse came in and said she looked terrible. The plaintiff was told to get back to bed. The defendant was summoned after the nurse had done blood pressure and other tests. The defendant arrived and after studying the charts decided she was fit to go home. It was arranged that the plaintiff should pick up a referral for a blood test the next day at the defendant's surgery. There was some talk of an ultrasound but no referral was given for this purpose. There was no conversation about the possibility of retained products in the uterus.

The plaintiff returned to Stuart Park with the baby. Within two hours she began to have vision disturbances. She telephoned the defendant but he was out. She eventually spoke to him at about 7.00p.m. He said the problem could be anaemia and that the planned blood test should be undertaken.

Next day, Mr James took the plaintiff to the defendant's surgery where she was given a referral form. She then proceeded to have the blood test done. She heard nothing for three days. She telephoned and was told that she was a bit anaemic and should take some iron.

The plaintiff continued to feel very tired and had pain in the genital area. She planned to return to the Batchelor farm and needed reassurance that she was fit to go to such a remote place.

On 28 March the plaintiff went to the defendant's surgery. She saw the defendant and told him of the genital pain. He said she had probably stretched ligaments during the birth. He gave her an anaesthetic cream to put on. He did not give the plaintiff a full examination and there was no talk of an ultrasound. The plaintiff told the defendant about her anxiety regarding her return to Batchelor but the defendant expressed no concern.

Although still feeling tired and listless, the plaintiff returned to Batchelor the next day. She went for a walk in the orchard with Mr James and found she was unable to walk more than 100 metres. The plaintiff concluded that there must be some problem. She telephoned the defendant's surgery. A receptionist told her that the defendant could not speak to her because he was with patients. The plaintiff stated her concerns to the receptionist and suggested that she have the ultrasound that the defendant had spoken of earlier. The receptionist went away. She returned and told the plaintiff that the defendant thought the ultrasound was a good idea and that the plaintiff should come in and collect a referral form.

On 31 March, the plaintiff travelled to Darwin and undertook the ultrasound. She waited for the results and took them to the defendant. She took the precaution of reading the report before giving it to the defendant. The relevant part read "There is within the uterus echogenic foci consistent with the presence of retained products".

Having considered the report, the defendant wrote out a referral to Dr Wickremachandran, who is a specialist gynaecologist. This doctor was referred to throughout the trial as "Dr Wicky" and I will hereafter do likewise.

The plaintiff enquired whether it meant that she must undergo a curretage. The defendant confirmed that it did. The plaintiff enquired as to the urgency of the procedure and was told that it could wait until after Easter, the following day being Good Friday. An appointment was made for the following Tuesday, 5 April 1988.

The plaintiff returned to Batchelor over Easter and presented herself to Dr Wicky on 5 April. Dr Wicky did not give evidence but an agreed Statement was admitted in evidence as Ex O. The course of events following the plaintiff's referral to Dr Wicky is best expressed by referring to part of the agreed Statement. After setting out the plaintiff's history, the Statement continues:

"8. I made a physical examination of Ms Lunn, including inserting my finger slightly, and feeling the cervix was open and I could feel what I believed was placental material. I told her that I would need to carry out a curette.

I arranged for Sarah to be admitted to hospital straightaway that afternoon, so that I could perform the curette the next morning on 6 April 1988, and so that if she suffered any haemorrhaging, it could quickly be attended to.

10. I commenced the curette at 8.17 am in Theatre 4 with Dr Pillai as anaesthetist. I carried out the procedure using my fingers to remove the residue of the placenta which was adhering to the wall of the uterus. I was able to remove all of the material and feel that the uterus was clear. The operation ceased at 8.55 am and Sarah was taken to the recovery room.

11. Sarah was bleeding heavily in the recovery room and I became concerned with the amount of blood she was losing, so she was returned to the theatre at about 10.45am. Dr Pillai had been transfusing blood into her from about 9.50am.

Dr Ray Anderson, another specialist obstetrician/gynaecologist was operating in the next theatre and I asked him for his assistance. He felt that Sarah would have to have a hysterectomy to stop the haemorrhage but we agreed to try to pack the uterus with packing gauze, and this was done and we left two packs in situ. She was returned to the recovery room at about 12.05pm to remain under close observations including blood loss.

Dr Pillai requested a full blood coagulation profile from pathology because he had made a provisional diagnosis of post partum haemorrhage, pyrexia (fever), septicaemia, and queried DIC.

I saw Sarah again at about 7.00 pm that evening and inserted another intravenous line in her right arm for her continuing antibiotics, whilst her left arm had a line for the blood transfusions. At that stage she was receiving Ampicillin, Gentamyacin and P1. I spoke to her and her husband John telling them of my concerns because of her severe haemorrhaging and how close we had come to having to give her a hysterectomy. I explained that the antibiotics were to cover the possibility of septicaemia.

I saw Sarah again the next day, 7 April 1988 at about midday with Dr Anderson and she looked much better. I reduced the dosage of intravenous antibiotics and arranged that the intrauterine packs would be removed the next day. I checked on her again that evening with Dr Anderson again and advised Sarah that she would be in the theatre at 8.30 in the morning.

On 8 April 1988 I removed the uterine packs in Theatre 4 and transferred Sarah to the Obstetric Ward for observation.

On 9 April I arranged the removal of her intravenous line and ceased her antibiotic therapy. She was to remain in hospital to recover from the operations and her blood loss.

On 12 April in the morning I arranged for Sarah to receive some Maxalon to assist her in feeding her son. At 4.00pm Sarah was discharged from hospital with her baby.

19. I saw Sarah again on 16 June 1988 when she told me that she had not had any bleeding since hospital and had been feeling well. She was not on any form of contraception and was not menstruating.

R micro."

The plaintiff gave a graphic account of the sense of emergency which prevailed on the two occasions she awoke from the anaesthetic. She was kept in hospital until 12 April during which time she received a number of transfusions and was kept on antibiotics. She was in very poor condition at first but slowly regained some strength. The defendant made a visit to the hospital and expressed his sympathy. The plaintiff, who believed she had nearly lost her life, expressed some anger and the relationship of doctor and patient terminated at that point.

The plaintiff returned to Batchelor. Her health slowly recovered. After some months the breast feeding of the baby came to an end and the plaintiff expected the resumption of menstruation.

She went to Dr Howe in Darwin as her new general practitioner. He prescribed some medication but menstruation did not resume. Dr Howe referred the plaintiff to Dr Sabaratman, a specialist gynaecologist, in mid 1989. He performed a battery of infertility tests. These included hormone tests and a laparoscopy under general anaesthetic. After these tests Dr Sabaratman opined that the plaintiff may be suffering from Sheean's syndrome, which involves a malfunction of the pituitary gland and produces infertility. Then followed a series of investigations which extended to November 1990 when the plaintiff was referred to a Sydney specialist. In dealing with the period leading up to the visits to Sydney, the plaintiff gave the following descriptions when asked about an admission to the Darwin Private Hospital in September 1990:

"Do you know what that was for? Do you remember?---I - my recollection is that - that he was still sort of grappling in the dark. He still didn't - hadn't worked out what it was and he was, I think, going back to have another look and see if anything was obvious now that wasn't before. That - this had been sort of a year that was - I seemed to always have a doctor's appointment pencilled in my diary. I seemed to go for test after test after test. I took tablet after tablet after tablet. And Doctor Sabaratnam - the best that he seemed to be able to offer me was that there was experimental work going on that he - he had told me, when he said that there may be a possibility of getting around the problems that I appeared to have, by using fertility drugs, he told me that would almost certainly mean that I'd be at high risk of a multiple pregnancy if I got pregnant that way, and I was - well, pretty devastated by that. Pretty frightened by that. Not the least of which was it was bad enough getting one baby out without the thought of having to try and get two or three or four out. But also because financially it would've been quite crippling for us to try and cope with multiple births and I was quite frightened by that. So Doctor Sabaratnam told me there was some experimental work going on where the fertility drugs were being administered on a sort of trickle method where you wore some sort of a belt and had - had the drugs being administered on a continuous and sort of slight basis rather than the other method where - where you got a lot of drug in one hit, which was resulting in the multiples. But we discussed that for a while and he said he'd try and find out about that and - and see if he could get me referred to find out if I was a suitable patient for that type of treatment."

The plaintiff was then sent to Sydney for an appointment with Professor Shearman of Sydney University. He conducted tests which showed that the plaintiff was ovulating. This ruled out Sheehan's syndrome and made Asherman's syndrome a more likely diagnosis. This is an extremely rare condition in which the front and back wall of the uterine cavity adhere to each other in a way which may obliterate the cervical canal.

The plaintiff said that by this stage, the frustration, the endless round of doctors' appointments and the plaintiff's loss of libido were imposing a severe strain on her relationship with Mr James. The plaintiff felt guilty and inadequate.

Professor Shearman told the plaintiff that Asherman's syndrome could sometimes be corrected by surgery. He told her that it would take more than one operation and that there was no guarantee of success. He added that if a pregnancy did occur it would inevitably be difficult. He spoke of other specified risks and advised her that she should not undertake the procedures unless she was absolutely bent on having another baby.

After discussing the matter at length with Mr James and Professor Shearman, the plaintiff decided to go ahead. She was warned that, in the event of a pregnancy, she would have to live in Sydney for some months during the later part of the pregnancy.

Professor Shearman referred the plaintiff to Dr Sutherland to do the surgery. On 23 November 1990 Dr Sutherland attempted to cut the adhesions by entering the uterus through the cervix with a hysteroscope. This would have avoided the necessity for open surgery. However, it proved unsuccessful and the uterus was perforated in the attempt. The plaintiff returned to Darwin for a few weeks to allow the uterus to mend itself.

The next procedure was another unsuccessful hysteroscopy performed on 21 December 1990 by Dr Sutherland assisted by Professor Fraser.

Finally, open surgery was carried out by Dr Sutherland on 8 February 1991 in the form of a laparotomy. In a complicated procedure the adhesions were cut and a tunnel created to carry sperm from the cervix to the uterus. A device was inserted to keep the walls of the uterus apart. This device was removed after a few days. The plaintiff was discharged on 13 February 1991 and returned home. On 17 April 1991, Dr Sutherland performed a hysteroscopy to see that everything was in order.

In August 1991 the plaintiff became pregnant. As had been predicted, difficulties were encountered. In November 1991 the plaintiff spent three days in Darwin Private Hospital as a result of a threatened miscarriage. The cervix was stitched under a general anaesthetic. The plaintiff was admitted again on 14 December because of massive haemorrhaging. This occurred at the Batchelor farm and was a terrifying experience.

The plaintiff did not thereafter leave hospital until the birth of her second son on 1 April 1992. From 14 December 1991 to 12 February 1992 the plaintiff was in Darwin Private Hospital. From then on she was an in-patient at Royal Prince Alfred Hospital, Sydney, until her son was born by caesarean section.

This period of incarceration had an adverse effect upon the plaintiff's law studies and imposed further strains upon her relationship with Mr James. The plaintiff has been strongly advised not to have further children and has accepted this advice.

After all these trials and tribulations the plaintiff has settled into a happy family life.

The time has now come to return to the question of the defendant's liability in damages to the plaintiff.

There is no question that the defendant owed a duty of care to the plaintiff nor as to the standard of care:

"The law imposes on a medical practitioner a duty to exercise reasonable care and skill in the provision of professional advice and treatment. The standard of care is that to be expected of an ordinary careful and competent practitioner of the class to which the practitioner belongs" - F v R (1984) 33 SASR 189 per King CJ at p190.

Accordingly, the standard of care required of the plaintiff was that of an ordinarily careful and competent general practitioner with considerable experience in obstetrics.

Apart from the duty of care which arises from the doctor/patient relationship, the plaintiff has pleaded a term of her contract with the defendant that the defendant undertook to engage the services of a specialist in the event of a complication being encountered. The defence denies the express agreement alleged but admits the obligation as an implied term of the contract. In his evidence, the defendant conceded that he gave an assurance in the terms alleged.

The conduct of the defendant which is said to be negligent commences from the delivery of the baby on 12 March 1989. There is no criticism of the defendant's ante natal care nor of the actual delivery of the baby.

The plaintiff's case against the defendant is based upon the plaintiff's own evidence as to what occurred and the professional opinion of Dr Sweet concerning those events. To some extent, it is based upon concessions made by the defendant and some aspects of the evidence of Dr O'Loughlin.

Dr Sweet is a highly qualified and very experienced specialist in obstetrics and gynaecology. He is presently the medical chief of the women's and babies' division of the Womens and Children's Hospital in Adelaide. Dr O'Loughlin is equally well qualified and is the Senior Visiting Obstetrician at Dr Sweet's hospital and Senior Visiting Gynaecologist at Royal Adelaide Hospital. It is sufficient to say that each witness is fully qualified to express opinions in this area.

Dr Sweet's primary criticism of the defendant's conduct was in embarking upon a manual delivery of the placenta prematurely when there was ample opportunity to arrange for an adequate anaesthetic and/or the assistance of a specialist. There was no abnormal bleeding and no urgency for manual removal. Dr Sweet said that without proper anaesthesia the procedure is "extraordinarily painful". He said that a pudendal block only removes sensation from the lower vagina and the perineum. It has no effect upon the walls of the uterus. Dr Sweet said that manual removal of the placenta can be a difficult procedure and in all cases there is a risk that the entire removal may not be achieved. Without adequate anaesthesia, the discomfort and movement of the patient may make the manual removal more difficult and thus increase the likelihood of some retained placenta.

The need for a manual removal occurs only in 3% to 4% of pregnancies. The standard teaching is to allow one hour from birth before attempting manual removal unless some life threatening bleeding is occurring. Dr Sweet said that the placenta will often separate within the hour and be expelled spontaneously.

As to the issue of whether this was a case of placenta accreta, Dr Sweet said that he cannot say for certain it was not, but he considered it unusual in a woman who had had no previous surgery to the uterus. Dr Sweet did not consider that the plaintiff's history of an abortion at six weeks made placenta accreta any more likely. He said that the fact that Dr Wicky was able to remove the adherent placenta manually made placenta accreta most unlikely.

He conceded in cross-examination that the incidence of placenta accreta is increased in the case of the older mother. Dr Sweet did not regard it as significant that Dr Sutherland reported placenta accreta at the time of the birth of the plaintiff's second child. Dr Sweet said that in the three cases of placenta accreta he had personally experienced, the adhesion was complete and a hysterectomy was required. In short, Dr Sweet said that he could find no confirmation in the material that the plaintiff had placenta accreta. It should be noted that Dr Sweet was not given the detailed description of the removal procedure which the defendant later gave in evidence.

Dr Sweet made a number of criticisms of certain aspects of the defendant's post natal activities. I put these aside for the moment.

In relation to what I have described as Dr Sweet's primary criticism of the defendant, Dr O'Loughlin expressed some measure of agreement with Dr Sweet. Dr O'Loughlin agreed that manual removal of a placenta should not be undertaken before at least a thirty minute interval after birth unless there was excessive bleeding or some other compelling reason. He expressly stated that the fact that the anaesthetic provided would be effective for only a limited time is not a valid reason for intervention.

However, Dr O'Loughlin took a view different to Dr Sweet as to whether this case was an instance of placenta accreta. Dr O'Loughlin was "fairly convinced" that what Dr Giblin encountered was a case of placenta accreta. His grounds for this opinion may be summarised as follows:

(i) Placenta accreta is usually preceded by some damage to the uterus.

(ii) The suction procedure carried out on the plaintiff in 1976 was probably accompanied by the use of a curette.

(iii) The description given by the defendant of the condition of the placenta at the time of the attempted manual removal; Dr O'Loughlin described this as "the main evidence".

The length of Dr Wicky's procedure suggested that a curette would have been employed as well as digital exploration. In any event, the length of the procedure itself suggested an abnormally adhesive placenta.

The fact that the plaintiff had an uneventful post natal period suggested that the residual placenta was adherent rather than free floating.

There were differences between the two specialists in their opinions as to the reasonableness of the defendant's conduct during the period between the birth and Dr Wicky's procedure. I put that issue aside for the moment. Neither specialist had any doubt that there was a causal connection between Dr Wicky's procedure and the subsequent development of Asherman's syndrome. Each specialist was in agreement that a pudendal block was not an appropriate anaesthetic for a manual removal of placenta.

However, Dr O'Loughlin considered that in some circumstances an obstetrician may be justified in seeking to remove the placenta manually if he had good anaesthetic block in place. But in the ordinary case of the non-delivery of the placenta, arrangements should be made for a general anaesthetic after waiting a reasonable period.

In the case of a doctor who encountered indications of placenta accreta when he placed his hand into the uterus, Dr O'Loughlin said that the first thing to do before proceeding further would be to arrange for "proper and adequate anaesthesia".

Dr O'Loughlin agreed that normal placentas have varying degrees of adherence to the uterine wall and that inadequate anaesthesia makes removal more difficult. He stated that if the patient was writhing about in great pain, the removal would be more difficult but not impossible.

Dr O'Loughlin said that he would expect any abnormal blood loss to be recorded in the hospital notes. He would also expect that placenta accreta, if diagnosed by the defendant, would be recorded in the notes or, at least, "abnormally adherent placenta".

Dr O'Loughlin said that in the case of the incomplete removal of a placenta being identified, by ultrasound or otherwise soon after the birth, he would recommend immediate evacuation under adequate anaesthetic with the fingers or sponge forceps. He said that in the case of the incomplete removal of a placenta accreta, an early evacuation should not be attempted but the patient should be carefully monitored for several weeks and the evacuation deferred as long as possible.

I now return to a consideration of the conduct of the defendant in relation to the events of 12 March 1998.

The first question is the decision by the defendant to proceed with a manual removal of the placenta at the time he did. In this regard, I am satisfied that the defendant embarked upon the manual removal within a few minutes of the baby's birth. The hospital records show that the third stage occupied ten minutes. The defendant says that the manual removal occupied about ten minutes. The notes are presumably written up by a nurse or midwife as she observes the events unfolding. The defendant was forced to say that the notes are wrong. But the evidence of the plaintiff and her husband, which was acceptable to me, make it clear that there was no period of delay between the attempted cord traction and the insertion of the defendant's hand into the plaintiff's uterus. The reasons for proceeding advanced by the defendant are, to my mind, completely inadequate. The loss of blood by the plaintiff is described in the hospital notes as "normal" and by the defendant as "not untoward". The plaintiff was doubtless tired but this hardly justified a departure from the normal course of events. The argument that the pudendal block may run out seems entirely groundless. The defendant conceded in evidence that a pudendal block was completely ineffective to anaesthetise the uterine area.

The cord traction procedure had not produced immediate results but this did not rule out the possibility of a spontaneous expulsion of the placenta. The defendant said that his normal practice was to wait 30 minutes and his failure to adhere to his practice is largely inexplicable. The answer may lie in the defendant's concession that the teachings in relation to this matter are largely ignored by practising obstetricians.

Having embarked upon the manual removal of the placenta, the next question is why the defendant did not immediately desist when his fingers encountered conditions unprecedented in his own very substantial experience. He conceded in evidence that he recognised the complete difference from anything he had encountered before at the "very earliest stage". When asked why he did not stop, the defendant replied "I have no answer to that". The defendant conceded that there was no problem in arranging for the attendance of a specialist and an anaesthetist and that he had the opportunity to do so.

The defendant's version of his decision to proceed, with a distressed and unanaesthetised patient, is, as the defendant frankly conceded, quite inexplicable.

As an experienced obstetrician is unlikely to behave quite irrationally, one is disposed to look for some other explanation of the admitted course of events.

The probability is that the problems with the manual removal were occasioned, not by a condition of placenta accreta, but by the defendant's decision to attempt the manual removal of the placenta in circumstances when it should never have been attempted in the absence of some dire emergency.

The evidence of the plaintiff and her husband entirely satisfies me that the manual removal was, to the plaintiff, an acutely painful procedure which made co-operation with the defendant quite impossible. I am satisfied that the plaintiff was, as her husband described, literally writhing in agony. In such circumstances the difficulty of a manual removal would obviously, as the specialists agreed, be greatly enhanced.

I consider that the defendant, having unreasonably entered upon the procedure, decided to continue with it but was unable to complete it. The defendant, recognising that his removal of the placenta was probably incomplete, thereafter merely hoped for the best.

The findings I have made involve a rejection of the diagnosis of placenta accreta. This diagnosis is largely based upon an acceptance of the defendant's evidence of what he found upon his manual examination of the plaintiff's uterus.

This was the main evidence relied upon by Dr O'Loughlin. The other matters to which he pointed were, as I understand him, merely supportive of the defendant's stated findings. Dr Sweet found no objective evidence of placenta accreta.

For a number of reasons I am not prepared to accept the defendant's account of his findings.

First, as I have already said, it is highly improbable that the defendant, having found what he says he found, would have persisted with the procedure.

Second, it is very significant that neither placenta accreta nor an abnormally adherent placenta is recorded in the contemporary hospital notes. The defendant says that he made the diagnosis at the outset. In view of the difficulty he encountered, one would expect the source of the difficulty to be recorded. What does appear in the notes is "?complete placenta, fragmented". This entry is consistent with a normal placenta which fragmented during removal.

Third, is the undoubted fact that placenta accreta is extremely rare, even among women who have suffered prior damage to the uterine walls. In this case, I think it is improbable that the plaintiff did suffer any damage to her uterus during the 1976 abortion. However that may be, the fact of statistical improbability remains.

It follows from what I have said that I do not accept the defendant's version of what he found upon manually entering the plaintiff's uterus. I think it is likely that the defendant has engaged, perhaps unconsciously, in some retrospective rationalisation and reconstruction. I consider that the difficulty the defendant encountered stemmed entirely from his ill-considered decision to proceed despite the circumstances to which I have drawn attention. This decision did, in my opinion, represent a departure from the standard of care which reasonableness required in all the circumstances.

As I have found that the placenta was normal, it follows that a complete removal could have been achieved if the plaintiff had been adequately anaesthetised. If the defendant had waited a reasonable time before proceeding, the placenta may have been expelled spontaneously as happens in most cases. In either event, the inference is inescapable that the plaintiff would have been spared the need for Dr Wicky's procedure which undoubtedly caused the unfortunate chain of events which befell the plaintiff.

There is no problem with causation in this case. There was no dispute that it was the retention of part of the placenta which caused the chain of events which constitute the plaintiff's damage.

It was the defence case that this was a case of placenta accreta and that the unfortunate course of events was an inevitable consequence of that fact and was not influenced by any negligence on the defendant's part.

Having rejected that defence, it is clear that the plaintiff is entitled to judgment. Furthermore, I do not find it necessary to say anything concerning the criticisms levelled at the defendant in relation to his post natal care of the plaintiff.

As to damages, I have already set out the particulars of the series of medical procedures and hospital admissions leading up to the birth of the plaintiff's second son in April 1992. These particulars show that the plaintiff suffered an almost continuous succession of tedious involvement with the doctors, numerous operations and tests, inconvenient travelling and general dislocation of her capacity to get on with her life. These hardships undoubtedly markedly affected her health, emotional state and family relationship. Fortunately these problems did not go on forever and seem to have ended happily. This speaks volumes for the plaintiff's durability and fortitude.

Although the plaintiff's problems came to an end, they extended over four years and were sufficiently serious to attract a significant award of general damages for pain, suffering and the loss of enjoyment of life. In the circumstances, I allow $40,000 under this head. The special damages are agreed at $62,565, making a total award of $102,565. Subject to argument and upon the assumption that the medical and hospital expenses have not been paid by the plaintiff, I allow interest at 10% per annum on $52,000 from 1 April 1990 to judgment. This amounts to $43,332 in round terms and would result in judgment for the plaintiff for $102,565 plus $43,332 interest with costs.