06 August 2018

Death of an unborn child - redress for the parents [judgment]

On 27 July 2018, the District Court in Katowice (I Civil Division), passed a judgement under which the parents of a child who has tragically died in the mother’s womb as a result of medical negligence were awarded redress. During the course of these proceedings, the BFP law firm has acted for the plaintiffs – the parents.
The claimant has been admitted to the hospital at the turn of the 36th and 37th week of pregnancy with alarming symptoms – obstetrical bleeding and increased tension of the uterus. Despite confirming such symptoms during the genealogical examination, no ultrasonography was performed on that day. Cardiotocography was however performed, and although it was non-reactive (which means that the result was abnormal) that, too, did not get the medical personnel to broaden the diagnostics.

The patient was hospitalised in the unit for the next 4 days. Each day cardiotocography was performed and each time it was non-reactive and therefore unsatisfactory. Still, no decision was made to perform a diagnostic imaging test which is crucial to the assessment of the health of the foetus – Doppler ultrasonography. On the third day of hospitalisation, the patient stopped feeling the movement of the foetus, which was reported to the personnel. Unfortunately this did not lead to an alteration of the medical personnel’s conduct either. On the following day, during the morning cardiotocography test, the foetus’ heart rate was undetectable. A decision was made to perform a caesarean section. Regrettably, the baby was already dead – and has been for at least few hours, which was confirmed by the neonatologist who had been called to the caesarean section and observed rigor mortis symptoms. Moreover, during the procedure, partial placental abruption was confirmed as the most probable cause of death.

The experts appointed in the judicial proceedings had no doubts that the failure to perform a diagnostic imaging test (Doppler ultrasonography) not only on the day the patient was admitted to the hospital, but also on the following days was an improper conduct. The symptoms with which the patient was admitted to the hospital were typical for premature placental abruption. The experts further confirmed that the ultrasonography diagnostics, as a rule, allows for the detection of such pathology. The causation premise was questioned during the trial since the experts were unable to state with absolute certainty whether performing the ultransonography would have allowed for timely detection of placenta pathology. Nevertheless, the symptoms that the patient reported as well as the further course of events (including the birth of a child with rigor mortis) allow for the conclusion that performing an ultrasonograpy would, in all likelihood, have saved the child’s life.

Having established this, the court awarded the parents redress in the total amount of PLN 250.000,00, including 50.000,00 for the child’s mother for violation of her patient’s rights - the righ to medical sevices that meet the medical knowledge requitements and the right to information on the health condition. The judgement is not yet in force. The parents were represented by Atty. Michał Krzanowski and Atty. Jolanta Budzowska.

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