Cruise operator Carnival ordered to pay $326,000 to passenger after miscarriage
Waine v Carnival plc (t/as P&O Cruises Australia). [2022] NSWDC 650
You don’t need to be a ship’s doctor to recognise the learnings from this legal judgment about providing medical care in high-risk situations and the importance of carefully discussing and documenting risks, warnings and recommendations in our daily practice.
Pregnancy complications
A passenger of 15 weeks gestation experienced pregnancy complications and sought help from the ship's doctor, Dr WP, who initially misdiagnosed her symptoms. Despite deterioration, her concerns were dismissed, and she ultimately experienced a traumatic miscarriage in a public airport bathroom without immediate medical support.
Court proceedings addressed the medical advice given, the cruise company's duty of care, and the impact on the passenger's mental health. The court found that Dr WP breached his duty of care by failing to advise Ms CW competently. Proper advice about the potential complications could have influenced her decisions and averted harm.
The court also acknowledged the mental health effects, citing PTSD, depression, and anxiety due to the miscarriage and subsequent hospitalisation.
Competent professional practice
Despite the areas of disagreement, the expert witnesses shared consensus is instructive in shaping our understanding of the standards of competent professional practice in obstetrics. Their expert opinions confirm that the practitioner was obliged to provide Ms CW with complete information about her condition, potential complications, and treatment options, thus enabling her to make an informed decision about her care, including:
The risk of heavy bleeding, the need for a blood transfusion, or potential psychological harm.
Options and advice regarding the treatment and management of her miscarriage, including advising her to stay in Noumea for medical intervention
Provision of an appropriate referral letter.
Risks of flying while bleeding and experiencing an incomplete miscarriage.
The statement concludes that Dr WP breached his duty of care to Ms CW, failing to offer proper advice and care during her health crisis.
Damages and learnings
Finally, the court considered the damages to be awarded to Ms. CW. These included non-economic loss, past and future economic loss, medical expenses, and compensation for care. The court awarded a significant sum in damages ($326,122, plus plaintiff costs), considering the severity of Ms CW's condition and the ongoing impact on her life.
This case is interesting for medical practitioners because it highlights that:
Providing or recommending treatments in unique, unusual, or high-risk situations is challenging.
Practitioners must discuss and document all risks, warnings and recommendations clearly.
It is interesting for lawyers as, in addition to the above:
The strength of witness credibility and attention to highlighting breaches of the standard of care
An example of the complexities of damage calculation considering both economic and non-economic losses to ensure appropriate compensation.
Plaintiff's offer of compromise favourably influenced the cost order in favour of the client.
Risk management vs defensive practice
As clinicians, we’re always trying to balance the duty of care for our patients, the demands on our time and the vagaries of defensive practice. A few considerations:
Communication and patient education: Clear and effective patient communication is crucial. Take the time to explain their medical condition, treatment options, and potential risks involved. This helps manage patient expectations and reduces the likelihood of misunderstandings or unrealistic demands.
Informed consent: Obtaining informed consent from patients before any medical intervention is essential. Ensure patients understand a proposed treatment or procedure's benefits, risks, and alternatives. This empowers patients to make informed decisions and helps protect you from potential legal issues.
Evidence-based practice: Adhering to evidence-based guidelines and staying up-to-date with medical advancements can enhance patient care while minimizing the risks associated with defensive medicine. By following established protocols, you can make well-informed decisions and reduce unnecessary tests, treatments, or referrals.
Documentation: Accurate and comprehensive medical documentation is vital. It clearly records your clinical reasoning, patient discussions, and the rationale behind your decisions. Documenting thoughtfully demonstrates the quality of care provided and protects against potential legal challenges.
Collaboration and second opinions: Seeking input from colleagues or specialists can be valuable when facing complex cases or uncertainty. Collaboration can provide a fresh perspective, enhance decision-making, and reduce the anxiety associated with defensive medicine.
Risk management: Understanding your jurisdiction's legal framework and professional guidelines is vital for managing risk effectively. Consider participating in risk management programs or workshops offered by medical associations or institutions to stay informed about best practices.
Professional development: Continual professional development helps you stay current with medical knowledge and advancements. This can improve your clinical skills, increase confidence in decision-making, and reduce reliance on defensive practices.
Danny Tucker