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Peter Jackson

- 9 Jan 2024
  • Medical Negligence

  • Personal Injury

Deakon Schwarze — the battle for justice and damages

Deakon Schwarze was delivered by emergency caesarian section on 19 September 2006 at the Women’s & Children’s Hospital (WCH) in Adelaide. He was eleven weeks premature and had been diagnosed with intrauterine growth retardation (IUGR). As soon as he was delivered, Deakon was observed to be having difficultly breathing spontaneously.

Deakon’s heart rate had dropped to under 60 beats per minute, and a specialist resuscitation team was called to attend. Two items of equipment — a Neopuff and a Leardal bag — were used in an attempt to deliver oxygen to Deakon, neither of which were immediately effective.

It was found that the Leardal bag and mask had been incorrectly configured and so was not functioning. This failed resuscitation meant that Deakon was deprived of oxygen for a total of 27 minutes after being delivered.

Deakon has subsequently been diagnosed with multiple medical conditions, including cerebral palsy, chronic lung disease, asthma, autism spectrum disorder (ASD), severe intellectual disability, gastroesophageal reflux disease (GORD), and an inability to swallow.

For the rest of his life, Deakon will require supervision 24 hours a day. He has to be fed via a feeding tube, as he is only able to take minimal food and drink orally.

In May 2012, Deakon’s parents began the process of lodging a claim for damages arising out of the failure to resuscitate Deakon effectively immediately after birth.

Nine years later, on 7 May 2021, the Honourable Chief Justice Kourakis awarded Deakon damages amounting to $9,500,000.

What is outlined above are the bare facts of the case. However, the process of obtaining this significant sum of damages for Deakon was long, complicated and fiercely contested at every stage.

While there are some unusual factors in this matter, it is nevertheless illustrative of the way in which cases of medical negligence resulting in birth injury are resolved, why these matters can be so drawn out, and why expertise, extensive research and a commitment to justice is required at every stage of the process.

Initial instructions from Deakon

I was first instructed by Deakon’s parents, in their capacity as his Litigation Guardians, when he was six years old. By this time, his significant disabilities including developmental delays, spasticity, and difficulties in eating and drinking, meant that he required around the clock care. It was also very apparent that his needs were only going to increase over time.

The awarding of substantial damages would therefore be essential to Deakon’s future and securing the level of care he would require for the rest of his life.

However, it was also immediately apparent, on receiving both Deakon’s and his mother Candy’s notes from WCH, that this was going to be a very complex and challenging matter.

Nevertheless, it was clear to me that there was the potential for an extremely large award of damages if it could be shown that the hospital owed Deakon a duty of care, that it breached that duty of care, and that this breach was the cause of his catastrophic birth injuries and permanent disabilities.

At the time that I was first instructed in this matter, Deakon’s parents were receiving no physical or financial support to provide the care Deakon required. This is why I resolved to act on a no win, no fee basis, as would the barristers and investigators that we engaged.

I also felt a very strong moral and professional obligation towards Deakon and his family, and was prepared to commit significant personal resources to achieve a fair and just resolution of his claim.

The failed resuscitation

A Laerdal bag and mask consists of a ventilation bag, which is compressed by hand in order to pump oxygen into a patient’s lungs when they are unable to breathe spontaneously, and a face mask that seals tightly to the face to ensure that the oxygen is being properly directed.

When I obtained Deakon’s notes from the WCH, these showed that his resuscitation was potentially complicated as a result of a malfunctioning Laerdal bag and mask used during his resuscitation.

This opinion was further reinforced by a freedom of information release obtained in May 2014, in which I learned that in 2006, when Deakon was delivered, the WCH had been in contact with the distributor of the Laerdal bag and mask in South Australia to say that they had been experiencing difficulties in using the bag. The one used in Deakon’s resuscitation was later found to contain an extra flap valve that meant it did not function as intended.

This additional flap valve meant that the air tube was blocked and so oxygen was not being directed into Deakon’s lungs (instead leaking out the top), thus rendering attempts at resuscitation futile. However, it took 27 minutes before it was noticed that the faulty mask and bag was not working and was actually severely restricting the amount of oxygen Deakon was able to receive during the resuscitation process.

From the notes and other information, I formed the opinion that this extra flap valve was inappropriately and negligently incorporated into the Laerdal bag and mask by personnel at the WCH.

However, in order to pursue a claim for damages I needed to prove that, on the balance of probabilities, this failure to use the Laerdal bag and mask correctly was not only negligent but was also the cause of Deakon’s injuries.

Admitting negligence

In most cases of medical negligence, the medical institution involved is not willing to admit negligence, won’t admit that they caused the injuries suffered, and won’t admit the extent and therefore the value of the injury.

Deakon’s case was slightly different. In August 2015, the Crown Solicitor’s Office (CSO) responded to my Notice of Claim by saying that the WCH was prepared to admit that the Laerdal bag malfunctioned due to human error. However, at the same time they were contesting the nature of Deakon’s injuries, and that his disabilities were a direct result of the failed resuscitation.

In short, they were admitting negligence but denying causation, instead arguing that Deakon’s injuries were the result of his extreme prematurity. They were also contesting Deakon’s diagnosis of cerebral palsy.

Therefore, the first challenge that I faced was proving that, on the balance of probabilities, Deakon’s catastrophic injury and his resultant disabilities were in fact caused by the failed resuscitation attempt, rather than his being delivered early or IUGR.

Dr Harbord’s report

In order to establish that the faulty Laerdal bag and mask were the cause of Deakon’s cerebral palsy and other injuries, I engaged Dr Michael Harbord, an Adelaide consultant paediatric neurologist as an expert witness.

Dr Harbord’s report, and the respondent’s attempts to refute it, would prove to be central to the conduct of the case.

In summary, Dr Harbord’s opinion was that Deakon did suffer from cerebral palsy, as confirmed by MRI imaging, and that this was caused, on the balance of probabilities, when the resuscitation process failed.

On this basis, I formed the opinion that there were good prospects for Deakon making a successful claim for negligence.

Accordingly, in July 2015, I provided a Notice of Claim to the CSO requesting that the WCH admit liability and provide funding on an interim basis to assist the family with Deakon’s treatment and care needs.

The respondent’s reply

In order to refute the opinions of Dr Harbord, the respondent commissioned its own report.

This was by Professor Alastair MacLennan, an obstetrician and gynaecologist who is a world renowned expert in causes of cerebral palsy, in particular its genetic and epigenetic causes.

He opined that Deakon suffered severe intrauterine growth restriction and that on balance this was the main cause of his neurological deficits.

Professor MacLennan was of the view that there was no sound evidence that the 27 minutes of failed resuscitation contributed to Deakon’s severely developmentally compromised brain, nor that better and quicker resuscitation would have protected him from what he determined was an existing neurological deficit resulting from IUGR.

The challenge I therefore faced was that in order to establish causation so that Deakon was entitled to damages, we would need to counter Professor MacLennan’s evidence and deconstruct his opinion that a) Deakon did not have cerebral palsy, and b) his injuries were not a consequence of the failed resuscitation.

Given Professor MacLennan’s standing in his field, it would be a complex and time consuming task to refute his opinions.

The role of Deakon’s legal team was therefore to find appropriately qualified experts who would be prepared to appear as witnesses, and who had the expertise and experience to be able to counter Professor MacLennan’s opinion in the areas where he had called our report into question.

Countering the respondent’s expert opinions

The first of these crucial areas was the radiology, and the interpretation of Deakon’s MRIs.

Professor MacLennan had concluded that, according to MRIs of Deakon’s brain, his neurological disorders had occurred well before birth. However, we were able to obtain opinion of a specialist neurologist who in March 2016 who supported Dr Harbord’s interpretation of the MRIs, and who opined that the injuries occurred after birth.

Professor MacLennan had also called into question Dr Harbord’s assessment of the pH levels in Deakon’s blood. Metabolic acidosis, which is the level of acid in the body’s fluids, has been shown to be a primary contributor to cerebral palsy. Professor MacLennan’s opinion was that Dr Harbord’s analysis of these were incorrect, and that they did not contribute to Deakon’s cerebral palsy in the way we set out.

Again, we obtained the opinion of experts who would counter Professor MacLennan’s view, and who supported our report’s conclusion that Deakon’s metabolic acidosis (the acid in the body’s fluids) increased substantially after his birth as a result of the admitted failed resuscitation, and that this was the most likely cause of his hypoxic brain injury and resultant disabilities.

This was a pattern that was followed throughout Deakon’s case; where the WCH attempted to discount our report, we would then seek out equally eminent professionals who would support the opinions of Dr Harbord as expressed in his original report.

Crucially, we were able to do this and counter every objection the respondent raised in response to our report, which was key to our being able to obtain for Deakon a significant level of damages.

The Laredal mask and bag

As part of the respondent’s case, I received a report from the CSO by Associate Professor Nick Evans, a neonatal paediatrician who was very supportive of Professor MacLennan’s opinion that the severe IUGR was the major cause of Deakon’s catastrophic injury.

Among other areas of dispute, Associate Professor Evans claimed that if the Laerdal bag and mask had been incorrectly assembled as pleaded, it would not have permitted any oxygen at all to have been delivered to Deakon for 27 minutes, which would have meant he did not survive.

However, in 2019 I attended an obstetric malpractice conference, where I saw a presentation by Dr Mark Tracy, a Senior Staff Specialist in New Born Intensive Care Medicine in the Westmead Newborn Intensive Care Unit.

I learned that Dr Tracy led a team of biomechanics engineers and physicians conducting research on the topic of newborn resuscitation and mechanical ventilation, including the Laerdal mask and bag.

Dr Tracy explained to me the concept of ‘mask leak’ when using a Laerdal mask and bag. In particular, he identified that given Deakon’s very small size — overall, and specifically his head — it was likely that a complete seal had not been achieved and so he would still have been receiving a small amount of room air oxygen — not enough to prevent the injuries but sufficient to keep him alive.

Subsequently, in July 2020 I obtained a written opinion from Dr Tracy, also saying that if appropriate resuscitation had been provided, the pH levels in his blood would have normalised and Deakon’s long term disabilities would have been avoided.

Ultimately the opinion of Dr Tracy was not challenged by any of the respondent’s experts.

Establishing Deakon’s cerebral palsy

The respondent was also contesting that Deakon’s injuries included cerebral palsy. To this end, they arranged for Dr Peter Fleet a Rehabilitation Physician with more than 40 years’ experience in paediatric rehabilitation for children with cerebral palsy and other childhood disabilities, to asses Deakon.

Dr Flett strongly disputed Dr Harbord’s diagnosis of spastic diplegia cerebral palsy, instead reaching a diagnosis of autism spectrum disorder (ASD) with associated intellectual disability, which he opined was likely related to Deakon’s prematurity or possible genetic factors.

He then went on to state that he was unable to identify any definite medical condition that could be causally linked directly to the resuscitation problem.

It was therefore necessary to carefully review Dr Flett’s opinion, as if it were to be accepted by the Court, Deakon would not be entitled to damages. Therefore, I asked Dr Harbord to review his assessment of Deakon, as well as Dr Flett’s opinion. He reaffirmed his original opinion and disagreed with Dr Flett’s conclusion.

Given the importance of this matter, it became essential to gain further support for the opinions expressed in Dr Harbord’s report. I therefore contacted Professor Robert Ouvrier, an Australian specialist in paediatric neurology, who examined Deakon and provided a report which was generally supportive of the findings of Dr Harbord and the diagnosis of cerebral palsy.

In so doing, we had been able to establish that Deakon was in fact suffering from cerebral palsy, and that on the balance of probabilities, the resuscitation failure was the cause.

Deakon’s autism spectrum disorder

It was the respondent’s case that Deakon’s autism spectrum disorder (ASD) was responsible for the majority, if not all of his disabilities and needs, and that his ASD was related to his extreme prematurity and IUGR, not to the failed resuscitation.

I accepted that Deakon suffered from ASD, and that it would be likely that some of his disabilities and needs arose from ASD and not cerebral palsy.

Therefore, the significant issue to be dealt with was whether ASD could, on the balance of probabilities, also be the result of the hypoxic insult suffered by Deakon during the failed resuscitation. Our argument was that this was the case, and therefore any disabilities as result of the ASD should also fall at the feet of the respondent.

However, if we succeeded in proving, on balance, that the cerebral palsy was caused by the failed resuscitation, but failed to prove that the ASD was similarly caused, then we would be required to delineate what disabilities were consequent on the cerebral palsy and which on ASD, which would impact on the sum of damages Deakon could be awarded.

This was so important because if Dr Flett’s opinion was accepted by a trial Judge, then there would only be a minimal allowance, if any, for Deakon’s future care needs, which had been assessed at approximately $6,500,000.

In order to assist in the breakdown of Dr Flett’s opinion, Deakon’s legal team commissioned a report from Professor Vicki Anderson, a paediatric neurologist and Director of Psychology Services at the Royal Children’s Hospital, Melbourne.

Professor Anderson’s opinion was that the ASD, on the balance of probabilities, was also caused by the prolonged period of hypoxia during the 27 minutes of failed resuscitation. I also approached Dr Patricia Jungfer, a psychiatrist who works with adults with brain injury related psychiatric conditions.

Both supported our contention that Deakon’s ASD, as well as his cerebral palsy, were the direct result of the failed resuscitation, and that damages should be awarded accordingly.

Reviewing the evidence ahead of trial

The issue of causation was extremely complex and involved calling 16 expert witnesses in the causation of cerebral palsy and ASD, paediatric neurology, paediatric neuroradiology, paediatric neonatology, paediatric neuropsychology and paediatric psychiatry.

In preparation for the trial, it was also necessary for all of Deakon’s witnesses to review the respondent’s expert opinions, to ascertain whether the opposing reports would give them any reason the change their opinions.

In addition, assessments were also obtained from an occupational therapist, physiotherapist and psychiatrist in relation to Deakon’s need for future treatment, and an architect in relation to Deakon’s future housing needs. We also engaged experts on the matter of the quantum of damages it would be necessary to claim to ensure Deakon’s current and future care needs could be met.

The case resolved and damages awarded

In the end, Deakon’s case did not go to Court; instead, it was resolved at mediation.

This is because we were clearly able to establish that on the balance of probabilities, the failed resuscitation of Deakon where he was deprived of adequate oxygen for 27 minutes, was the cause of his catastrophic injuries and disabilities.

That the case did not go to trial, and the compromise reached between the parties, reflects the weight of the opinions I was able to obtain against that of Professor MacLennan and the other WCH experts.

We were also able to show that, despite the WCH’s claims to the contrary, that Deakon does indeed suffer from cerebral palsy, as well as ASD and other conditions, and that on the balance of probabilities these were not the result of IUGR or being delivered prematurely — instead, they were the result of negligence on the part of the WCH

Although the negligent acts were admitted by the respondent at the outset, it was still a significant battle to establish that this was the ultimate cause of Deakon’s catastrophic injuries. The WCH sought at every stage to negate the reports of our experts though obtaining their own contradicting opinions. This meant our having to find further experts to refute these as well; a pattern that occurred repeatedly throughout the case.

This is why it took nine years from the time I was first instructed by Deakon’s parents to his receiving the damages to which he was rightly entitled. As medical negligence cases can involve very large sums in damages, they are always vigorously contested, while awaiting the reports and assessments of medical experts across a variety of fields is necessarily a drawn out process that is reliant on their limited availability.

However, having an experienced legal team like the one we assembled to fight Deakon’s case meant that we were able to do this in the most effective and efficient manner possible.

Although the sum awarded in damages cannot make up for the injuries Deakon suffered through no fault of his own, the money does at least bring some peace of mind in that his complex and ongoing care needs will be met in the future.

In this regard, at least, Deakon has received some justice for the hospital’s failure with regard to the duty of care it righty owed him and his family.