THE family of an eight-year-old boy who has cerebral palsy and brain damage is suing the doctor who delivered him, as well as the local health service.
They claim that a bungled delivery caused the young boy's catastrophic injuries when he was born in August, 2015.
Dr Mythily Ramanathan and the Central Coast Local Health District are accused of failing to properly manage his birth, as well as his mother's pregnancy.
There are two parts to their allegations, firstly that the mother was not offered suitable anti-natal management.
There were a number of risk factors leading to an increased likelihood of shoulder dystocia - the child becoming stuck in the pelvis - occurring during labour.
The family says she should have been offered a pre-labour caesarean section which she did not receive.
Secondly, the family alleges that the mother's labour and the child's delivery were not properly managed.
She was admitted to hospital late on August 29, 2015. It is alleged that an earlier call should have been made to the online consultant obstetrician for delivery due to her prolonged, late first stage, and prolonged second stage of labour, where the mother was already a poorly controlled gestational diabetic.
It is further claimed that the deficiencies and techniques relied on to overcome the shoulder dystocia resulted in an 18-minute delay between the delivery of the baby boy's head and his body, depriving him of oxygen and causing brain damage.
In an earlier stage of the case, which went before the NSW Supreme Court in 2022, a judge found that if it went to trial, substantial damages would be awarded.
An order was made against the Central Coast Local Health District for an interim payout of $60,000.
The circumstances of the birth were difficult and complicated, Judge Harrison said in that case.
In the 2020 statement of claim the family said the boy's injuries could have been avoided if his mother's diabetes had been diagnosed and appropriately treated during pregnancy, and if a decision had been made to offer her a Caesarean.
The baby's head was delivered using a vacuum before he became stuck.
The parents were not in a financial position to provide the boy with the care he needs, the court has heard.
He requires physiotherapy, and ongoing treatment and review by a specialist orthopaedic clinic in case he later requires surgery.
"Without this intervention there is a real concern that the plaintiff will lose his ability to walk," solicitor Gillian Potts put to the court in an affidavit in 2021.
"If this medical intervention is not undertaken, the plaintiff is also at risk of losing the ability to complete transfers and will be required to be lifted by his carers or will require the use of a hoist to undertake tasks such as sitting on the lounge, sitting on a toilet and getting in and out of the shower."
As well as cerebral palsy, the boy has a speech delay, hyperactive and autistic behaviours, and has been assessed as likely requiring full-time care into adulthood.
Solicitors for the health service argued that the mother was appropriately managed during her pregnancy and her labour and delivery.
In an ideal world, senior obstetric assistance would be available within five minutes of the head being delivered, but neither of the available specialists could have arrived in time to make a difference to the outcome, their legal counsel said.
In the current case the family is seeking permission to run a separate hearing on the issue of liability, arguing that the issue of damages could not be determined for many years.
Their medical experts said it was impossible and inappropriate at this stage to try to predict the child's long-term needs, educational attainment, employment or vocational outcomes.
They also argued that the primary liability witness, Professor Michael O'Connor, who is now in his seventies, may not be in a position to participate in a hearing many years down the track.
In general, the issues of liability and damages are heard together, but the family has argued it is in the child's best interested and in the interests of the defendants to ensure he receives the treatment he needs as he grows to minimise the amount of damages that will ultimately be awarded at a hearing.
In a decision handed down this month, Judge Walton said it was likely the hearing would be delayed by between five and ten years, pushing the damages hearing out as far as 2031, when the child's long-term prognosis could be better understood.
In the meantime, Professor Connor said the costs of intervention for cerebral palsy alone was likely to run over $145,000 per year.
Another expert, working in occupational therapy, said it was likely he would need 24 hour daily care as an adult from the age of 18 onwards.
Judge Walton agreed with Judge Harrison that the family was likely to succeed in obtaining a judgement for damages against Central Coast Health.
If the issue of liability was decided before damages, the child may be eligible for another interim payment.
Given the severity of his disability and the extra care and support he requires, it was in the interests of justice that those issues be decided at the earliest available time, he said.
"I consider the issues as to liability are very clearly defined," Judge Walton said.
"The hearing of the separate question of liability will, in my view, facilitate the quicker and cheaper resolution of the proceedings."
The matter comes back to court on May 15.
