Are you representing a client or clients who have lost a child at birth (or some other trauma) due to negligence and as a result suffered a psychiatric injury?
In the recent case of McManus v Murrumbidgee Local Health District Health Network  NSWSC 1347 the mother sued for damages for nervous shock after the defendant failed to properly monitor her labour or manage her antenatal period and delivery with the result her newborn son died soon after birth in circumstances that could and should have been avoided by an earlier Caesarean section. What are some practical tips we can learn from this case, to assist when running psychiatric injury cases?
Ms McManus was diagnosed with gastroenteritis and monitored daily for a period of 3 weeks in mid April 2010. On 14 May 2010, after testing, including ultrasounds, a doctor told Ms McManus she was fine to leave hospital, however, a midwife disagreed and contradicted the doctors advice. Ms McManus returned to the hospital the following morning, a CTG trace (records the foetal heartbeat) was taken. She was told to go get something to eat and come back later. She was then re-examined by a doctor, told to go get some of her things by a nurse, that a Caesarean would be scheduled later that afternoon. She was told, it could not be done sooner as she had just eaten. About 2.30pm an IV (intravenous) line was inserted and another CTG undertaken at which time the staff member said “we have to go now‘ (obviously indicating problems with the foetus i.e. foetal distress or decelerating heartbeat etc). Suddenly everything appeared to become urgent. She was given a general anaesthetic. After waking up from the delivery a doctor, whom she had never previously met said to her “Im really sorry, but the baby didn’t make it.” Ms McManus replied “are you serious?” The doctor replied ‘I am very serious…..” Ms McManus was shocked, to say that least.
Afterwards, she became angry and depressed and commenced abusing alcohol, becoming totally reliant upon it and cigarettes. She was admitted to St John of God Hospital for her alcohol abuse and this resulted in her abstinence from October 2012.
Ms McManus was socially withdrawn, did not like crowds or talking to people, very edgy, anxious and nervous, unable to sleep, suffered from nightmares and flashbacks. She became fearful her husband would leave her. Her husband gave evidence that Ms McManus’ former self was eradicated by what happened. He gave evidence she was a moderate social drinker before the event and descended into alcoholism after the event. Mr McManus gave evidence that he tends to most of the household and domestic tasks.
The major issues in these proceedings included:
- how long Ms McManus’ disabling psychiatric conditions would continue
- whether or not they will diminish over time (including post litigation)
There were four medical opinions on behalf of the plaintiff. One expert psychiatrist stated in her first report, in part:
it is likely that Ms McManus will require long term follow up by a psychiatrist, a psychologist and drug and alcohol counsellors and may require admissions to psychiatric hospitals at times
Then subsequently stated in her supplementary report:
it was highly unlikely that Ms McManus will recover fully from the traumatic experience…..it is highly unlikely she will return to the level of her pre-morbid general functioning.
The second expert psychiatrist stated in his first report, in part:
Ms McManus continues to suffer from post traumatic stress disorder and major depression, in partial remission.
Ms McManus’ capacity for work at the present time is very poor…..
The second expert stated in his supplementary report, in part:
Ms McManus would require further treatment for up to two years and expected the treatment to become less and less over time, particularly once legal proceedings have been completed.
The third expert psychiatrist stated in his reports, in part:
She is likely to have ongoing chronic and relapsing condition for the foreseeable future…. She has a limited capacity for work of 8 hours per week for the next two years.
The fourth expert, a psychologist, conducted a neuropsychological assessment and formed the view that Ms McManus was suffering from PTSD and a major depressive disorder. She opined that Ms McManus would not be capable of resuming employment in a managerial role, however, may be able to work up to 16 hours per week.
The plaintiff contended that her condition would not improve over time and it is not amenable to treatment. Why?
- her condition was so severe, she will never fully recover – a permanent condition and in the alternative
- she has sustained alterations to her neural pathways secondary to her PTSD – irreversible (psychiatric and psychological treatment of limited assistance)
The defendants relied upon one expert, a psychiatrist who provided a series of reports. She opined that the extent to which Ms McManus ‘can make a full recovery remains uncertain‘, however, “the potential for benefits from X treatment suggests she could ultimately achieve a reduction from moderately severe to milder symptoms overall….”
The defendants contended that the plaintiff’s psychiatric condition would improve and was amenable to psychiatric, psychological, pharmacological, therapeutic and cognitive behaviour regimes and it would improve following the conclusion of litigation.
His Honour concluded:
- the legal proceedings are but one factor in the cause of Ms McManus’ current distressing medical condition (and not the most significant factor).
- having regard to Ms McManus’ history to the severity of her presenting cause of her illness I suspect it is improbable that she will not be able to the manage the difficulties with X treatment (proposed by the defendants).
- the situation of Ms McManus will likely continue for the whole of her life, with little real or tangible prospect of improvement.
Subject to any further argument about some of the items, Ms McManus was entitled to to the total sum of $1,785, 498 and the defendant to pay Ms McManus’ costs.
This case demonstrates the importance of the experts, family members and friends evidence in a psychiatric injury claims. Communicating with experts prior to the provision of prospective reports is recommended. When briefing experts the following guidelines may be useful:
- provide a letter of instruction with cross references to folder X or box Y (if applicable)
- organise clinical notes chronologically and paginate (Acrobat pro is a useful tool)
- if it is your practice to provide ‘assumptions‘ for the expert it may be worthwhile using the following heading and terms – Provisional Statement of Assumptions (heading) with the following “these appear be primary issues from the notes provided to you, would you please peruse to determine the factual basis of your provisional assumptions.’
- you may even point to critical parts in the material provided to the expert and ask when thinking critically, what is your opinion on X. Try to prove the case through the medical expert as well as the plaintiff.
- you can request additional information/guidance from the expert, beyond liability, causation and quantum. Why not ask the expert for their opinion how best to manage a PTSD, disordered or psychologically fragile client, when running their case?
- obtain evidence from other sources: take evidentiary statements from close family member/s and/or friend/s who can provide evidence about how the plaintiff was prior to X event and following X event. If alcohol consumption is an issue, it would need to be addressed by someone close to the plaintiff.
Louise writes a blog every fortnight on a range of medical negligence and personal injury topics. Take a minute to sign up to her blog at http://www.sydneybarrister.net.au so you can receive a copy directly into your inbox and you’ll never miss a post!