In the recent matter of Nemes v South Eastern Sydney Local Health District [2025] NSWSC 418, the plaintiffs (Bendeguz Nemes and Erika Nemes and Zsolt Nemes) commenced a medical negligence compensation claim against the defendant, South Eastern Sydney Local Health District (Royal Hospital for Women at Randwick).
Bendeguz Nemes (“Benny”) was born at the Royal Hospital for Women at Randwick at 11.38 on 2 April 2016. These proceedings are concerned with the question of whether the disabilities from which Benny was later found to be suffering, including infantile seizures and Global Developmental Delay, are the result of an alleged negligent failure by the hospital to deliver him earlier or whether they are alternatively unrelated to the timeliness of his delivery, which description must be taken to include the hospital’s management of his antenatal care.
By amended statement of claim filed on 10 July 2020, it is alleged against the hospital, for which the defendant is responsible, that it was negligent by failing to:
- induce labour and contractions at an earlier stage in light of the early rupture of membranes;
- administer prophylactic antibiotics after physical vaginal examinations;
- discontinue Syntocinon when the CTG became abnormal;
- deliver the baby at an earlier time when abnormalities were indicated;
- adequately examine the placenta and to retain it for investigation of the plaintiff’s condition.
An additional issue was identified in a further amended statement of claim filed after the close of evidence. That issue was framed as a failure to:
- conduct a foetal scalp test during labour.
These allegations were denied by the defendant. There is no separate claim made against the midwives.
The Court ordered the separate determination of the following questions:
- Did the defendant breach its duty of care by not proceeding to earlier delivery?
- Was any purported delay in (1) causative of the plaintiff’s disability?
- Did the defendant breach its duty of care by not prescribing prophylactic antibiotics?
- Was any purported failure to prescribe antibiotics in (3) causative of the plaintiff’s subsequent disability?
- Did the defendant breach its duty of care in the manner in which it augmented the mother’s labour with Syntocinon?
- Was the purported manner of administration of Syntocinon in (5) causative of the plaintiff’s subsequent disability?
At paragraph [7], [8], and [149], the Court provided as follows:
In my opinion, each of these questions must be answered “No”…However, separate questions (3) and (4) can be dealt with quickly. Erika Nemes did not at any stage suffer from an infection of the type to which antibiotics would be expected to respond. On the question of whether it was reasonable not to administer prophylactic antibiotics to Ms Nemes, only Dr Schmidt considered that they should have been administered. None of the other obstetric experts agreed with that opinion. These experts all agreed that, on the balance of probabilities, Ms Nemes did not develop chorioamnionitis or any other infective process. Moreover, these experts also all agreed that the absence of prophylactic antibiotics had no impact on foetal outcome.
Despite the order for the determination of the separate questions, the various joint reports and other expert opinions deal with matters going beyond these separate issues that I am required to determine. For example, the obstetric experts were asked a question concerning disposal of the placenta. Joint Question 6 asked the obstetricians to comment on whether it was reasonable not to retain the placenta following birth. The experts agreed that it would have been preferable for the placenta to be retained. However, there is no evidence before me in the proceedings that suggests any such failure was the cause of any injury or disability from which Benny has been found to suffer. The reasonableness or otherwise of the failure to retain and examine the placenta in this case is unrelated to Benny’s claims.
The answers I have provided to the separate questions are sufficient to dispose of the proceedings. Those answers mean that the plaintiffs have not established that any alleged breach of duty of care during labour was causative of Benny’s seizures or Global Developmental Delay. I am satisfied that Benny was never encephalopathic. He was well until five months after birth. In the absence of encephalopathy, it is not possible to establish that Benny’s brain condition can be attributed to a perinatal cause. I am satisfied that Benny has a brain malformation that occurred or developed in utero but which is unrelated to the birthing process.
Ultimately, on 5 May 2025, the Supreme Court of New South Wales ordered as follows:
- Judgment for the defendant.
- Order the plaintiffs to pay the defendant’s costs.
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