Director of Proceedings v Hurst  NZHRRT 27, (29 May 2019)
The Director filed proceedings by consent against registered midwife Pamela Nell Hurst (“the defendant”), in the Human Rights Review Tribunal, regarding the care she provided to her client (“Ms A”) during the birth of Ms A’s first child.
The defendant was an independent midwife and the Lead Maternity Carer (“LMC”) for Ms A from approximately 6 weeks’ gestation. Ms A’s pregnancy progressed as expected until 20 weeks’ gestation, when a routine ultrasound scan (“USS”) detected an umbilical abnormality. A later USS confirmed that the abnormality was in keeping with that of an umbilical hernia. An obstetrician advised that Ms A could have routine care during labour, but the need to keep the umbilical cord long at delivery was stressed.
On 3 February 2016, at 39 weeks’ gestation, Ms A underwent another USS. The written USS report recorded: “Liquor oligohydramnios (one single pool of 1.3cm).” The report noted that there was no history of spontaneous rupture of membranes (“SROM”) to account for the reduction in liquor. Immediately following the USS, the trainee sonographer telephoned the defendant to advise her of the USS findings. The report of the USS findings was also sent to the defendant by facsimile at 5.42pm the same day. The defendant stated that she did not receive a copy of the report and had not sought to access a copy.
The defendant arranged to meet Ms A and her partner at the hospital and instituted electronic fetal monitoring of the fetal heart rate (“FHR”) with the cardiotocograph (“CTG”) monitor for approximately 60 minutes. Following the CTG, Ms A was reviewed by an obstetric registrar, with the defendant also attending. The defendant recorded that the reason for the referral to the obstetric registrar was: “Phonecall from Medex reporting $ liquor”. The registrar discussed Ms A’s presentation with a colleague, and it was decided to book Ms A into the hospital the next day to induce her labour. The registrar did not document a plan for Ms A should she go into labour before the planned induction. The defendant did not consult the obstetrician about the plan for care in the event Ms A went into labour naturally before then.
During the evening of 3 February 2006, Ms A experienced contractions, with established labour commencing at 6.00pm. Ms A met the defendant at Tauranga Hospital at 7.30pm. The defendant undertook a vaginal examination and recorded that Ms A was 8–9cm dilated and her cervix was fully effaced. Ms A’s membranes were still intact. Despite it being routine practice to do so, the defendant did not consult with the obstetric team to clarify the plan for care when Ms A went into spontaneous labour. At 7.40pm the defendant commenced CTG monitoring of the FHR, and subsequently reported in the clinical notes that the CTG was “reassuring”. The CTG recorded that the baseline FHR was 120–130bpm and variability was between 5–15bpm. Accelerations were present. Occasional fleeting variable decelerations were also present. According to the Royal Australian and New Zealand College of Obstetricians and Gynaecologists Intrapartum Fetal Surveillance Clinical Guideline (Third Edition, 2014) (“RANZCOG Guidelines”), Ms A’s CTG was abnormal.
At this time the defendant recorded that Ms A was wishing to use the birthing pool, and that the pool was filling. The defendant asked a staff midwife for her opinion on Ms A using the birthing pool during labour. The staff midwife retrospectively recorded the advice she gave to the defendant, which included that Ms A should be kept out of the pool because of the oligohydramnios and other potential abnormalities. The staff midwife recorded that she advised the defendant that even if she decided to let Ms A labour in the pool, Ms A would need to birth out of the water. The defendant chose not to follow the opinion provided and, contrary to standard practice, did not make any record of her conversation with the staff midwife.
Ms A subsequently entered the birthing pool, and the defendant discontinued the CTG monitoring. Given the clinical situation (oligohydramnios and abnormal CTG trace), the defendant’s decision to discontinue CTG monitoring and to allow Ms A to labour and birth in the pool was a significant departure from accepted midwifery standards. The defendant used a Sonicaid (a handheld ultrasound transducer used to detect the FHR) while Ms A was in the birthing pool. At 8.30pm, the defendant recorded the FHR as 130bpm. Also at 8.30pm, the defendant recorded that Ms A felt like pushing. The defendant asked Ms A if she would like to get out of the birthing pool, and Ms A advised that she did not want to. At 8.40pm, the defendant recorded the FHR as approximately 120bpm, and at 9pm as 130bpm. At 9.20pm, the defendant recorded the FHR as 120–130bpm, at 9.40pm as 140bpm, and at 9.50pm as 120bpm. The defendant retrospectively recorded the FHR as 100bpm at 9.55pm and again at 10.15pm. The normal range for FHR during labour is 110–160bpm. Contrary to accepted practice, the defendant failed to advise Ms A to leave the pool when the FHR was noted to be 100bpm, to enable closer monitoring of the FHR, or to advise Ms A that consultation with an obstetric registrar was warranted.
At approximately 10.17pm, the defendant delivered Ms A’s baby (“Baby N”) under water and unwrapped the cord from around his neck. The defendant handed Baby N to Ms A for skin-to-skin, and noted that Baby N was pale, floppy, lacking in tone, and not breathing, although she could feel a pulse in the umbilical cord. Contrary to accepted midwifery practice, the defendant failed to press the emergency call bell immediately when Baby N was born pale and floppy and making no respiratory effort, to obtain immediate neonatal assistance, and failed to clamp and cut the umbilical cord immediately to enable prompt neonatal resuscitation. At approximately 10.19pm, the defendant pressed the midwifery assist call bell, and the staff midwife responded and entered the delivery room. When the staff midwife entered the delivery room, she pressed the emergency call bell. At about 10.20pm, a number of staff midwives responded to the emergency call bell and entered the delivery room. Baby N’s umbilical cord was cut at approximately three minutes of age, and Baby N was transferred to the resuscitation table. Baby N took his first spontaneous breath at 30 minutes of age. At about 10.05am on 4 February 2016, the Waikato Neonatal Retrieval Team arrived at the hospital. At about 2.30pm, Baby N was transferred to Waikato Hospital by helicopter. Sadly, Baby N passed away at 12.46pm on 5 February 2016. Baby N was diagnosed with hypoxic ischaemic encephalopathy.
The defendant accepted that her failures in care amounted to breaches of the Code of Health and Disability Services Consumers’ Rights (the Code), and the matter proceeded by way of an agreed summary of facts. In particular, the defendant accepted that prior to labour she did not attempt to access the USS report from Medex Ultrasound to clarify her understanding of the USS results and, as a result, failed to recognise that Ms A’s labour would be “high risk”, requiring continuous CTG monitoring; that she incorrectly interpreted the CTG report at 7.40pm–8.20pm as being “reassuring” when it was an abnormal trace; that she did not communicate effectively with the hospital midwife about the hospital midwife’s concern with Ms A using the birthing pool during labour; that she did not recommend that Ms A get out of the birthing pool, and did not undertake closer FHR monitoring at 9.55pm, when the FHR was 100bpm; that between 9.55pm and 10.15pm she did not document the auscultated FHR after each contraction or every five minutes during the active second stage of labour; that when the FHR was detected at 100bpm on several occasions between 9.55pm and 10.15pm, she did not check the maternal pulse to ensure that she was hearing the FHR; that she did not prepare the birthing and resuscitation equipment adequately; and that she failed to recognise that Baby N’s condition was severely compromised at birth, and to press the emergency call bell immediately and clamp and cut the umbilical cord.
The Tribunal was satisfied that the defendant failed to provide services to Ms A with reasonable care and skill, and issued a declaration that the defendant breached Right 4(1) of the Code.
The Tribunal’s full decision can be found at:
 Oligohydramnios is a condition where there is a deficient level of amniotic fluid. The Ministry of Health Referral Guidelines define oligohydramnios as no amniotic pool depth equal or greater than 2cm, measured on a USS. Oligohydramnios is associated with maternal and fetal complications, including umbilical cord compression.