In a recent decision by the NSW District Court, a plaintiff was awarded $326,122 in damages for a psychological injury caused by negligent treatment of a miscarriage whilst she was on board the defendant’s cruise ship.
It was alleged:
- On the evening of 3 April 2018, Ms Waine was onboard a Carnival cruise ship when she noticed some discolouration of her urine. She called reception, told them of her pregnancy of 15 weeks gestation and asked to see the doctor. She was advised that the medical centre would open at 6:00 am in the morning.
- Ms Waine became increasingly concerned overnight after noticing spotting. On 4 April 2018, Ms Waine consulted with the cruise ship’s doctor, Dr Warren Pretorius. The doctor took Ms Waine’s antenatal history which included two first-trimester miscarriages. Dr Pretorius attributed Ms Waine’s spotting to a ‘scratch’ on her cervix.
- Ms Waine requested an ultrasound, however, there was no ultrasound onboard the ship.
- On 5 April 2018, Ms Waine advised reception that she was still bleeding and was told that an appointment had been made for her to visit a doctor the following day in Noumea. During that appointment, Ms Waine was informed, “no good. Baby no good. No heartbeat”. She was told to consult with the cruise ship’s doctor.
- Upon returning to the cruise ship, she contacted Dr Pretorius who allegedly said “Shame” and did not provide further advice. She was told that Reception would contact her. Ms Waine denied that Dr Pretorius told her that she could start bleeding heavily or the risk of infection to her uterus.
- The Reception Manager booked flights to Sydney from Auckland the following day.
- Unfortunately, Ms Waine suffered heavy bleeding and discharge of the products of conception whilst at Auckland airport, suffering a psychological injury as a result.
Duty of Care
The trial judge found that Dr Pretorius’ duty of care to the plaintiff included the following:
- On 4 April to advise Ms Waine about the possibility and risks of miscarriage including severe bleeding, infection and loss of the baby. He was obliged to identify a plan of management, including an ultrasound to confirm the status of the foetus, and for patient rest until then, and to investigate the facilitation of getting Ms Waine off the ship if she wanted that, especially if it was at her cost.
- On 6 April to give Ms Waine advice about the risks of complications were she to attempt to fly back to Australia whilst the miscarriage remained incomplete, and advice about the options of waiting in Noumea for the natural result of miscarriage; and of having surgical or medical intervention in Noumea in a hospital before returning to Australia, including providing details about the hospital, its facilities and ability to perform a D&C.
Breach/Causation
The trial judge was satisfied that Dr Pretorius breached his duty of care by failing to discuss Ms Waine’s options and provide advice on various matters. In order to determine causation, it was necessary to consider whether proper advice would have resulted in Ms Waine not travelling on 7 April 2018.
The Court found that had Ms Waine been given appropriate advice she would have likely received treatment in Noumea and as such would not have had the miscarriage in an uncontrolled environment. It was accepted that the circumstances surrounding the miscarriage caused Ms Waine’s psychological injury.
Decision
The court found in Ms Waine’s favour and she received damages for non-economic loss, past economic loss, future loss of earning capacity, buffer for domestic care, past out of pocket expenses and future medical expenses.
If you would like to read the full decision, please click this link: https://www.caselaw.nsw.gov.au/decision/1852794e5c1df1ca4513c3b8
And if you want to learn more about the negligent treatment of a miscarriage or any other medical negligence, please contact us at 02 4050 0330
