The Tribune

By LYNAIRE MUNNINGS

Tribune Staff Reporter

lmunnings@tribunemedia.net

THE parents of a severely disabled boy have called for the swift payment of a $3.6m damages award after the Court of Appeal unanimously upheld a finding that obstetrician Dr Gregory Carey negligently managed the child’s delivery at Princess Margaret Hospital.

The court dismissed every ground of Dr Carey’s appeal, finding that the Supreme Court judge was entitled to conclude that his use of two assisted-delivery methods fell below the required standard of care and caused the catastrophic neurological injuries suffered by the child, identified only as TK.

His parents, who have pursued the case for more than a decade, said they hoped the ruling would finally end the legal battle and allow them to meet their son’s lifelong needs.

“As the parents of a severely injured child who was robbed of a fair chance at life, we his parents have been trying to seek justice for TK for over a decade,” they said. “We're happy that the Appeal Court judges unanimously ruled in our favor, as did the Supreme Court.”

TK, who will celebrate his 14th birthday next week, was born in August 2012 after what the Court of Appeal described as an uneventful pregnancy that rapidly descended into a medical emergency.

Dr Carey initially attempted to deliver him with a vacuum extractor before switching to Wrigley’s forceps. When neither method succeeded, consultant obstetrician Dr Harold Bloomfield was called and completed the delivery.

TK was born unconscious and was not breathing. His skin was blue, his umbilical cord was wrapped around his neck and he had a poor APGAR score. He was resuscitated and transferred to the Neonatal Intensive Care Unit, but had already suffered severe injuries.

Several weeks later, he was diagnosed with West syndrome. He was subsequently found to have Lennox-Gastaut syndrome, cerebral palsy, epilepsy, microcephaly and other serious neurological conditions that left him permanently disabled.

The Court of Appeal said TK was in a vegetative state by the time of the Supreme Court trial.

His parents urged Dr Carey to bring the matter to an end before their son’s birthday and warned against further delays.

“At this point, we just want this whole process to be over with as quickly as possible and we are hoping that there will be no further delay or stalling tactics which clearly shows a lack of empathy, consideration and concern for the well-being of the incapacitated minor who is being impacted the most,” they said.

“We would like payment to be made swiftly so that we can continue to take care of our beloved son's lifelong needs. TK celebrates his 14th birthday next week and we hope that Dr Carey will see fit to now end this and have this settled before TK's 14th birthday.”

The appeal centred on whether the trial judge was wrong to find that Dr Carey’s attempts to use the vacuum extractor and forceps fell below accepted medical standards and caused TK’s injuries.

The appellate judges found no basis to interfere with those conclusions.

“The trial judge correctly approached the issue of medical negligence by determining whether the appellant's conduct fell below the standard expected of a reasonably competent practitioner,” the court said.

“Expert evidence was relevant to that assessment, but the trial judge was entitled to evaluate the reasoning, reliability, and consistency of the expert opinions rather than accept any opinion without scrutiny.”

The court upheld the trial judge’s decision to prefer the evidence of TK’s medical experts over the expert called by Dr Carey.

It said the weight attached to expert evidence depended on the strength of the reasoning and its consistency with the facts, rather than whether the expert practised in The Bahamas or elsewhere.

The Supreme Court found that the vacuum delivery failed because the suction cup repeatedly detached, not because the machine was defective. It also found that attempts to use forceps while the baby’s head was improperly positioned contributed to the injuries.

Dr Carey had argued that the vacuum extractor was defective and that any failure should have been attributed to faulty hospital equipment.

The Court of Appeal rejected that argument.

“The trial judge correctly rejected the contention that any alleged deficiency in hospital equipment relieved the appellant of responsibility,” the court said. “The evidence supported the conclusion that the issue concerned the appellant's use of the available equipment and the decisions made during the delivery.”

The original judge found that TK remained trapped in the birth canal for too long and suffered oxygen deprivation and brain damage during the prolonged delivery.

The judge concluded that Dr Carey’s treatment “did not meet the standards expected of a physician skilled in the field of obstetrics with a significant practice in that area.”

The Court of Appeal also rejected the argument that the trial judge failed to properly determine what caused TK’s injuries.

“The trial judge properly addressed causation and was entitled to reject the alternative explanations advanced by the Appellant,” the court said. “The conclusion that TK's injuries resulted from the negligent management of the delivery was supported by the evidence.”

The appellate court said Dr Carey attempted the delivery for about 25 minutes before summoning Dr Bloomfield.

“Eventually, the appellant called for the assistance of Dr Bloomfield who delivered TK soon after he arrived. But there was no cry nor a sound from TK,” the judgment said.

“TK was delivered unresponsive with a flat line and a poor APGAR score. His skin was blue with an umbilical cord wrapped around his neck. He was quickly resuscitated but by then had sustained injuries.”

The judges also dismissed Dr Carey’s complaint that the nearly five-year delay in delivering the Supreme Court judgment rendered the ruling unsafe.

“Although delay in delivering judgment was undesirable, it did not render the judgment unsafe,” the court said. “The judgment demonstrated a proper engagement with the evidence, and no prejudice or error arising from the delay was established.”

The Court of Appeal found no reason to disturb the approximately $3.6m damages award and concluded that Dr Carey’s grounds of appeal largely challenged findings of fact and credibility that the trial judge was entitled to make.