LW203 2022: Torts Law I

Tutorial 8 (Week 10): Breach of Duty

Instructions: Read the following problem scenario and answer the following questions. You must use the IRAC method when writing your answer and provide case authorities to support your arguments.

Tom and Zendaya were a young couple who married in 2020. In March 2021, they discovered that they were going to have a baby. Zendaya was slightly built (152 cm tall and weighing about 50kg before pregnancy) and an insulin dependent diabetic. There are a number of complications that could possibly arise during pregnancy which are associated with diabetes. One such complication is shoulder dystocia, which is a condition where the mother's pelvis is too small for the baby's shoulder to pass through. This condition is prevalent in 10% of diabetic pregnancies where the mother is of a slight build. Babies born to diabetic mothers are likely to be larger than normal - particularly around the shoulder area. When shoulder dystocia presents during labour, there are increased risks that the baby or the mother will be seriously injured or die.

Zendaya sought out the services of the specialist gynecologist in Pacifica, Dr. Octavius, to ensure that she and her baby would have the best care. Dr. Octavius was the only female specialist in Pacifica and had been working in the field for over 18 years. She informed Dr. Octavius on multiple occasions that she was concerned how the diabetes would affect her pregnancy. Zendaya was adamant from the beginning that she wanted to have a natural birth (where the baby is delivered vaginally) and avoid a caesarian section (C-section) birth at all costs. Dr. Octavius assured Zendaya that she would monitor her pregnancy closely and that she would let her know "if anything serious came up".

On 30 November 2020, Zendaya had her final consultation with Dr. Octavius and her graduate assistant, Dr. Dre. During this consultation Dr. Octavius discovered that Zendaya's baby was bit on the larger side but still within the recommended range for natural delivery. When Zendaya asked Dr. Octavius whether her baby was too big, she responded, "Baby is a tad on the bigger side, but there is nothing to worry about. There is a super small chance that shoulder dystocia might occur but there are methods to easily remedy this". Dr. Octavius did not think that it was necessary to elaborate further. Being a natural birth advocate, Dr. Octavius knew from experience that women who were told of shoulder dystocia almost always opted for a C-section - which has serious risks for the mother.

Zendaya was due to give birth on 15 December 2021 but went into labour at 11:00 pm on 5 December 2021. During labour, it became apparent that the baby was bigger than expected and that the pelvic outlet was smaller than estimated. Dr. Octavius decided to use forceps when the baby's head failed to descend naturally. Unfortunately, the baby's shoulder became impacted (shoulder dystocia occurred) and half of the baby's head was outside of the perineum. It was the first time in Dr. Octavius's entire career that this condition had presented.

After taking a moment to deliberate, Dr. Octavius performed a symphysiotomy (where the pelvic bone is cut to artificially widen the pelvic gap) and baby Peter was delivered at 1:12 am on 6 December 2021. Tom, who was in the delivery room, noted that there was 15 minutes between the time the baby's head appeared and the delivery. During this time, the umbilical cord had become compressed and the baby was deprived of oxygen (this is a risk associated with shoulder dystocia). As a result of being deprived of oxygen, baby Peter suffered from serious health complications and passed away an hour after being born.

Zendaya and Tom would like to bring an action against Dr. Octavius for the death of their son. They consult with Dr. Osborn, who is the other specialist gynecologist in Pacifica and head of the Pacifica Gynecologists Association, who stated that, "Pepper should have told you about shoulder dystocia in more detail when you expressed your concerns about your baby being too big to deliver naturally." He also further explained that, "When a baby's shoulder becomes impacted, the accepted practice is to perform the Zavanelli manoevure (which involved pushing the baby's head back in and performing an emergency C-section) not a symphysiotomy." He concluded that, "If you had just had a C-section, it is likely that your son would not have died."

(1) Assess whether Dr. Octavius breached her duty of care for failing to warn Zendaya about the risk of shoulder dystocia and its associated complications and in relation to the management of the delivery.

Answer:

Issue:

Whether Doctor Octavius can be held liable for breach of duty against Zendaya?

Rules:

Application:

Conclusion:

(2) Would your answer to Q1 (in relation to the delivery) change if Dr. Octavius was called to attend to another patient in an outer island of Pacifica and it was her graduate assistant, Dr. Dre, who delivered baby Peter?