Coffey v Murrumbidgee Local Health District is an example of a case where the plaintiff was unsuccessful in a medical negligence claim and demonstrates the application of both the “competent professional practice” defence and the “out of time” defence.

Factual summary

  • James Coffey by his tutor Kathleen Coffey (his mother) brought a medical negligence claim against Murrumbidgee Local Health District (MLHD) in relation to his premature birth at the Wagga Wagga Base Hospital on 19 January 2004. It was alleged that various failings by the hospital “significantly diminished” the prospect of a satisfactory perinatal outcome. Ms Coffey also brought a claim for psychiatric injuries suffered as a result of the circumstances surrounding her son’s birth.
  • On 4 January 2004, at 25 weeks and 2 days gestation, Ms Coffey was admitted to Wagga Wagga Base Hospital and was provisionally diagnosed with “threatened premature labour”. Ms Coffey was treated with Celestone (medication for promotion of lung development in an unborn baby) and Adalat (medication for suppression of contractions).
  • On 8 January 2004, the results of a urine sample gave the impression that Ms Coffey likely had a urinary tract infection. Ms Coffey was treated with antibiotics and was discharged on 10 January 2004.
  • On 19 January 2004, at 28 weeks and 3 days gestation, Ms Coffey presented to Wagga Wagga Base Hospital after experiencing “mild tightenings every ten minutes…increasing to contractions four minutes apart”. At 8:00 am, Ms Coffey was examined and it was noted that she was fully dilated and at 8:14 am, Ms Coffey gave birth to James. James required cardiac massage and was ventilated via a bag and mask. Subsequently, James was transferred to Canberra Hospital.
  • During the admission at Canberra Hospital, James suffered various health problems including an increasing oxygen requirement, collapse of the left lung, hypotension and incomplete retinal vascularisation. James’ blood tests were suggestive of sepsis and he was also diagnosed with staph auerus MRSA infection of the skin.

Allegations of negligence

  • The plaintiffs’ primary allegation was that Ms Coffey should have been transferred to Canberra Hospital on 5 January 2004 or alternatively that she should have been transferred “no later than some time during the period between 5 January 2004 and 19 January 2004”.

The “competent professional practice” defence

  • MLHD, in their defence to the plaintiffs’ second further amended statement of claim relied on s 5O of the Civil Liability Act 2002 (NSW).
  • In this matter, the Court noted, subsequent to an analysis of previous cases that considered s 5O:

“It follows that, where a professional adduces evidence that established that he or she acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice, then, subject to the court not finding that the opinion is irrational, that practice established the standard of care, conformity with which by the defendant will mean he or she “does not incur liability in negligence”. That should be so even in cases where the judge is of the opinion that a different or higher standard, of which the defendant fell short, should obtain”.   

  • The defendants adduced evidence from various experts to the effect that “Wagga Wagga Base hospital acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice”. The Court found that the experts in this case established the standard of care with respect to this particular matter and that the hospital met that standard of care. As such, MLHD was not liable in negligence.

The “out of time” defence

  • The defendants also relied on a limitation period defence, submitting that the plaintiffs were out of time to commence proceedings noting that “proceedings were commenced more than three years after the date upon which the cause of action was discoverable”. The statement of claim was filed on 31 March 2011 (7 years and 2 months after the birth of James).
  • Ms Coffey initially consulted with her solicitor on 3 March 2004. Ms Coffey received advice from her solicitor in relation to the limitation period.
  • After two unfavourable reports from experts, Ms Coffey’s solicitor did not advise in favour of pursuing the matter. The file was closed, upon Ms Coffey’s instructions.
  • In February 2011, Ms Coffey instructed her solicitor to recommence searching for an appropriate expert. Following a conference with an expert obstetrician, Ms Coffey’s solicitor “formed the view that there was an arguable case” and filed a statement of claim.
  • The Court considered that, “…The suggestion that Ms Coffey was unaware of the relationship between the injury sustained by her son and the fault of the hospital until she was informed of the views expressed by Professor Fliegner in the conference with Mr Potter on 21 March 2011 in my view either misunderstands the applicable test or is not supported by evidence. The issue of one of discoverability, not discovery…The fact that Ms Coffey did not “discover” Professor Fliegner’s opinion until within a three year period before she commenced these proceedings ignored the significance of what she should have discovered and when she should have discovered it. All the steps that were taken and everything that occurred that led to the provision of Professor Fliegner’s opinion could correspondingly have been taken or could have occurred well before the period of three years prior to the commencement of proceedings…”

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This case highlights some of the complicated legal and medical issues involved in these claims. In order to understand these complicated issues and have the best chance at success, it is crucial to have lawyers with the right experience and knowledge who are prepared to go to a trial if a reasonable settlement cannot be achieved.

At Turner Freeman we have lawyers who specialise in medical negligence claims. Our Sydney partner, Sally Gleeson, along with her team of lawyers, have a dedicated practice in medical law.

We have adapted with the latest changes to the court procedures with COVID-19 and are continuing to help many clients progress their cases on a “no win, no fee” basis so they can obtain compensation needed for treatment, aids, equipment, care and assistance.

If you or someone you know has suffered as a result of medical negligence, including a situation in which you have suffered injury as a result of radical treatment, we encourage you to call us on 13 43 63 to speak with one of our medical law experts. We will treat your enquiry and all information you provide confidentially.