A doctor is not necessarily responsible for the result of an intervention

The First Court of Civil Courts decided that a medical doctor and a private hospital were not responsible for the rupture of the shoulder of a baby during birth, because they used acceptable medical practice which any other doctor would have used.

This was decided on 28 October 2013 by Mr Justice Mark Camilleri in Albert and Astrid Gambina vs The Golden Shepard Group Limited, which operate St Philips and Astrid Camilleri.

The plaintiffs had filed a lawsuit against St Philip's Hospital and Dr Astrid Camilleri, after their daughter suffered injuries in her shoulder during birth, which resulted in a permanent disability. They claimed that if all the precautions were taken, this could have been avoided. They asked the court to condemn the defendants to pay damages. The hospital and the doctor denied the claim.

Mr Justice Camilleri pointed that there was no contestation that the baby had suffered these injuries during birth. Therefore, the court had to examine whether a medical professional did what was reasonably expected from her and from the hospital and whether the damages suffered were a result of their negligence. The Court relied on a medical technical report, which was drawn up by a court appointed medical expert. The expert recommended that the defendants were not to be held responsible for what took place to the baby.

According to jurisprudence, there is a contractual relationship between a doctors and the patient. However, this is not based on a positive result, but a relationship where the doctor is to use his diligence during his activity of care. It is the plaintiff that must prove that the doctor acted incorrectly during her intervention. In order to prove professional malpractice it has to be proved that a doctor acted outside general medical practice. In an English judgement Dunne vs National Maternity Hospital (1989) IR 91 established two requests for establishing medical responsibility: 

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 of 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 specialization and skill would have followed had he been taking the ordinary care required from a person of his qualification.

When the plaintiff arrived to hospital to give birth, Dr Astrid Camilleri, was assisted by a team of a midwife, a matron and a doctor. At birth the head of the baby did not come out completely and did not turn as it was meant to in order to facilitate the rest of the body to come out. The midwife assisted but failed and this is when Dr Camilleri intervened. She tried to put her hand to assist the baby to come out but that did not work either. They administered a syntocinon drip to help the mother push, but that failed also. The medical staff used an episiotomy scissors but that was useless. The medical staff had to pull at the baby in order for her not to suffocate. The defendant doctor denied panicking and held that she was faced with a problem and she had to solve that problem. She claimed to have done her utmost and saved the baby's life. The child is alive thanks to her pulling her for less than five minutes.

The plaintiff alleged that all this was predictable due to the baby's size, which was larger than normal, however the court expert Dr George Buttigieg dismissed this argument since although the baby was large it was not "excessively big by statistical and comparative studies". 

In antenatal examinations there were no indication that this complication would take place. In his conclusions the Court expert noted that the hospital and the medical staff assisting in this particular birth acted as expected and there is no evidence of medical malpractice. The Court embraced the expert's conclusions and dismissed the plaintiffs' claims of damages.

Malcolm Mifsud is a partner at Mifsud & Mifsud Advocates



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