In an unusual development, two Victorian midwives, Gaye Demanuele and Melody Bourne, have been charged with negligent manslaughter over the death of their patient, Caroline Lovell, in 2012.
The case was the subject of a coronial inquest by Coroner Peter White in 2016.
Caroline delivered her second baby, Zahra, at 8.52am on 23 January 2012 in a birthing pool. It was noted by the midwives that there was some blood loss, but this was assessed as being related to the separation of the placenta. She remained in the pool for nearly an hour until she complained of feeling unwell and lightheaded then fainting whilst getting out of the pool. Caroline’s condition continued to deteriorate and she became pale, clammy and unresponsive. An ambulance was called, but before it arrived Caroline went into respiratory arrest. She was transported to the Austin Hospital where attempts were made to control the bleeding. Investigations showed a severe hypoxic brain injury consistent with the period of cardiac arrest. Caroline died shortly after midnight on 24 January 2012.
Susan McDonald, professor of midwifery at La Trobe University, gave evidence at the inquest. It was her opinion that Caroline’s obstetric history was important. She suffered a post-partum haemorrhage after her first delivery and was known to have a uterine fibroid, which were both risk factors for a further post-partum haemorrhage. It was Professor McDonald’s opinion that Caroline should have been counselled about the advisability of delivery in a birth centre rather than at home and that the third stage of labour should have been carefully monitored and actively managed.
Maternal observations following the birth and the management of the third stage of labour was another area of criticism. It was considered that Caroline had suffered a major blood loss after the birth that was undetected because she remained in the birthing pool and that the midwives failed to detect Caroline’s deteriorating condition. A pathologist gave evidence that it was inconceivable that Caroline’s very low iron level when she presented at the Austin Hospital could have occurred in the absence of a major blood loss event.
In his findings, delivered on 24 March 2016, the coroner found that the midwives had caused or significantly contributed to Caroline’s death.
Civil cases for compensation for medical negligence are not uncommon. In such cases, a plaintiff must prove that:
Under Victorian law, the standard of care expected of professionals is what could reasonably be expected of a person possessing that skill as at the date of the alleged negligence. The claimant must prove their case “on the balance of probabilities”.
Where medical treatment provided has led to death, there have been cases where medical professionals have also been criminally charged with negligent manslaughter.
In criminal cases for negligent manslaughter, the prosecution must prove that the accused:
The prosecution need not prove that that the accused intended to cause the death, rather that the accused’s actions were conscious, voluntary and deliberate.
Similarly as in a civil case, the standard of care expected of a medical professional in a criminal negligence case is that of a reasonably competent member of that profession.
A paramount difference however, between a criminal prosecution and civil case for negligence is that, the prosecution must prove that the accused medical professional’s treatment was grossly negligent and that it significantly contributed to the death. The prosecution must also prove their case “beyond reasonable doubt”, a much higher standard of proof than in a civil case.
The first documented case of manslaughter related to medical treatment in Australia was in 1843 where Dr William Valentine was found guilty of manslaughter after administering the wrong medication that resulted in death. Since then, there have been only a handful of prosecutions of medical professionals for negligent manslaughter and the majority have resulted in the accused being acquitted.
One of these few cases concerned negligent manslaughter charges against surgeon, Dr Jayant Patel. Dr Patel was dubbed “Dr Death” in the media after having approximately 87 patient deaths linked to his treatment whilst Director of Surgery at Bundaberg Base Hospital in Queensland. He was initially convicted of negligent manslaughter of three patients however these convictions were quashed by the High Court in 2012. He was retried and acquitted in one case and the two further charges were dropped after he entered into a plea deal.
In 2019, midwife, Ms Lisa Barrett, was found not guilty on charges of negligent manslaughter brought against her in the Supreme Court of South Australia. The charges concerned the deaths of two babies during home births in 2011 and 2012. Justice Vanstone found that although Ms Barrett’s conduct breached the standard of care expected of a midwife, her actions and treatment did not amount to gross negligence and therefore, criminal negligence.
Given the historical propensity of Australian courts to acquit medical professionals who have been charged with negligent manslaughter, it would not be surprising if the current prosecutions are not successful.
This is, perhaps, related to the difficulty in proving a criminal case “beyond reasonable doubt” where the accused does not have an intention to harm the victim.
The cases will, however, be watched carefully by health professionals, their associations and insurers.
Our dedicated medical negligence team at Adviceline Injury Lawyers can assist you in navigating your claim. Contact our expert lawyers for a free initial consultation on (03) 9321 9764.Go Back