Coffey v Murrumbidgee Local Health District formerly known as Greater Murray Area Health Service [2019] NSWSC 1265 (available on Caselaw) was a decision today of Justice Ian Harrison.
The substantive claim in negligence saw the plaintiff allege that the hospital was negligent by failing to transfer her to appropriate hospital for birth of son and failed appropriately to care for son after his birth. The defendant raised the usual issues as to whether the hospital acted in a manner that was widely accepted by peer professional opinion as competent professional practice, The court held that the standard of care had been met by the hospital.
The significant and over-arching allegation pleaded against the defendant was the failure to transfer Ms Coffey to the Canberra Hospital prior to James’ delivery. The defendant maintained that in the circumstances of this case, the decision not to transfer, as well as the treatment provided while still at Wagga Wagga Base Hospital and following delivery, conformed to competent professional practice.
At [167] the court concluded:
The standard with which the Wagga Wagga Base Hospital was required to comply was the standard described by the experts as one that was widely accepted in Australia by peer professional opinion as competent professional practice. Those experts established the standard of care for the purposes of this litigation. That standard was met by the hospital. The hospital does not incur a liability in negligence either to Ms Coffey or James Coffey. That is so in my opinion having regard to the whole of the evidence, both with respect to the allegation of a failure to transfer Ms Coffey to Canberra Hospital before James was born as well as with respect to the individual allegations of want of proper care at Wagga Wagga Base Hospital leading up to the time of his delivery and immediately thereafter.
A further argument by the defendant focused on where statement of claim filed 7 years and 2 months after events giving rise to cause of action; whether the cause of action was undiscoverable until a later date and whether plaintiff under a disability such that limitation period was suspended.
At [195] – [196] the court noted:
The steps that Ms Coffey should reasonably have taken then, which she did not take until 2011, was to have continued to press, during the dormant years, for expert evidence to be sourced, rather than doing nothing for four years until instructing Mr Potter to close the file.
The hospital therefore submitted that for the purposes of s 50D, Ms Coffey is one who “ought to know” of the facts that informed the decision to commence the proceedings (i.e. the availability of expert evidence sufficiently corroborative to provide an arguable case), because the Fliegner opinion would, within the meaning of s 50D(2), “have been ascertained by the person had the person taken all reasonable steps before that time to ascertain the fact.” On any view, Ms Coffey ought to have known of that fact at a time prior to 31 March 2008 (i.e. that date 3 years before she commenced) and, for the purpose of s 50D, the cause of action was discoverable before 31 March 2008.
The plaintiff also failed to prove that she was under a disability for the purposes of the limitation consideration.