Midwife's mistake: A grieving mother's long fight for justice

by Donna Chisholm / 09 August, 2017

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Jenn Hooper, left, and Denise Simpson-Vogan. Photo/Trefor Ward

A Hamilton mother has won a compensation settlement after her baby died as a result of failures by her midwife. But a maternity advocacy group says other families are still in the dark about their rights. 

For Denise Simpson-Vogan, it was never about the money. Her eight-year fight for justice after the death of her newborn boy was, she says, only ever about accountability.

The Waikato mother has received compensation from her midwife, who was found to have made a series of errors during labour that contributed to the potentially preventable death of her baby, Axton Mead, at Rotorua Hospital in February 2009. The amount is confidential. The Health and Disability Director of Proceedings took the case to the Human Rights Review Tribunal on Simpson-Vogan’s behalf after an investigation into midwife Priscilla Punita found “severe departures” from accepted standards of care.

Simpson-Vogan and her advocate, Jenn Hooper of Action to Improve Maternity (Aim), say families have no idea about their options for redress or give up the fight after finding the system too arduous to navigate.

In general, ACC legislation prevents courts and tribunals from granting compensation or damages against health professionals when a patient dies or is injured under their care. The same restriction applies to the Human Rights Review Tribunal. But the mental distress or injury caused to a mother when her baby dies or is injured as a result of inadequate care is not covered by ACC, so she may sue for damages or compensation. (Fathers are not eligible because they are not regarded as a consumer of the health care.)

In this case, although the tribunal did not order the damages, a negotiated settlement was agreed between the parties. The tribunal formalised the settlement in April.

Axton lived for little more than a day. When he was delivered, by an obstetrician using a ventouse suction cup, he was pale, floppy and not breathing. In care that the Health and Disability Commissioner (HDC) would describe as “seriously suboptimal”, Punita disconnected an electronic fetal monitor (called a cardiotocograph or CTG), which records the fetal heartbeat, after she misread irregularities that it was indicating during labour.

Denise Simpson-Vogan and Russ Mead with Axton. Photo/Simpson-Vogan Family Collection

The commissioner found Punita’s documentation poor and her records misleading. Coroner Gordon Matenga also criticised her care, after an expert midwife told an inquest in 2010 that had CTG monitoring continued, earlier intervention would probably have prevented Axton’s death. A pathologist found oxygen deprivation had caused a fatal brain injury. The autopsy also found features of fetal malnutrition, suggesting an oxygen-deficient environment in utero before labour. “Such infants are poorly equipped to deal with the stresses of labour,” the pathologist said.

Axton was Simpson-Vogan’s second baby. Her first was delivered by emergency caesarean, but Simpson-Vogan was keen to have a vaginal birth for Axton. She arrived at Rotorua Hospital just after 3am, the CTG monitor was removed at 4am and Axton was delivered just before midday.

Simpson-Vogan says Punita never explained why she’d stopped the monitoring, which she said was “unnecessary”. After the monitor was removed, the midwife told her that because labour wasn’t fully established, Simpson-Vogan should go home. She refused and tried to tell her midwife that an obstetrician had told her she was to be fully monitored during labour, but she felt Punita didn’t listen.

Axton was flown to Waikato Hospital when he was six hours old, and Simpson-Vogan says even as she was driving from Rotorua with her mother, she didn’t fully understand the seriousness of his condition. Soon after they arrived, a doctor told her and the baby’s father, Russ Mead, that Axton was unlikely to survive. He died the following afternoon.

“We gave him a bath and dressed him. The police came, then he went to the morgue. A nurse offered us all tea and coffee, but no one else came in after that. We didn’t know what to do, so we ended up leaving. It was dark by the time we left.”

Jenn Hooper and Denise Simpson-Vogan. Photo/Trefor Ward

Separate investigations

Despite the HDC findings, Hooper had to fight hard before the office would agree to investigate. She and Simpson-Vogan were told in February 2013 that a formal inquiry was unlikely, mainly because Punita had retired in December 2012 and was no longer a risk to patients, and both ACC and the coroner had done separate investigations.

Hooper says the HDC’s office changed its view after she challenged its decision in an hour-long phone call. “My message to [commissioner] Anthony Hill was that it’s his job to investigate practitioners, and if he doesn’t do it, who will? You can’t use the coroner and ACC doing their job well as an excuse not to do yours at all. The HDC is supposed to be about accountability for practitioners and learning from the errors and sharing that for the greater good. If he doesn’t investigate, these babies are being buried twice.”

Had the commissioner not investigated, Simpson-Vogan could not have taken a case to the tribunal, because it requires breaches of the Code of Consumers’ Rights to have been established by the HDC.

“Jenn and I are the ones who had to jump up and down before they actually took a look at it seriously,” says Simpson-Vogan. “Why do investigations not start automatically? A lot of people don’t have the strength to fight it.”

Hill denies claims that it is difficult to get an investigation launched; 170 complaints are with the investigations team. Numbers are rising by about 10% a year, partly as a result of population growth, but also because of “the accessibility of the complaints process and high profile of the HDC”. An HDC spokeswoman told the Listener the assessment process to decide whether a formal investigation will be opened is “quite substantial”, and providers, complainants and experts are interviewed.

The HDC’s annual report notes that in the year to June 2016, it received nearly 2000 complaints but completed only 80 formal investigations, of which 60 resulted in breach opinions. More than 2000 cases were listed as “resolved”. Hill says about 10% of all HDC investigations involve midwives and about 9% of breach findings relate to midwifery care.

In the past calendar year, the deaths of two babies resulted in breach findings against the midwives involved. In a third case, a midwife was found to be in breach after a baby developed cerebral palsy as a result of a birth that went wrong.

Hooper says since its inception in 2009, her organisation has dealt with more than 750 families who have had bad birth experiences in which babies were harmed or died, but most have not attempted the HDC process. For the ones who have tried more recently, the most common complaint she hears is that cases are not investigated.

“The message I feel the HDC is sending is ‘You mean that little to us we’re not even going to bother putting that resource into finding out how come or holding people accountable. You’re just not important enough.’”

Health and Disability Commissioner Anthony Hill.

“Not allowed to talk about it”

Simpson-Vogan says that after the inquest, a police liaison officer told her that nothing more could be done and that the family “weren’t allowed to talk about it”.

“We are made to feel we’re nothing. That’s how I felt for years. I had no idea what to do. I felt the whole time there was more support for the midwife than for me.”

Three years after Axton died, Hooper contacted Simpson-Vogan after seeing a story about the case in a local paper. Hooper then lodged a claim for ACC cover for Axton’s funeral and memorial costs and advised Simpson-Vogan about the HDC.

When Punita was found to have been in breach by the HDC, she was referred to the Director of Proceedings for possible prosecution, but she surrendered her practising certificate. Hooper says it’s worth noting that Punita didn’t stop working immediately because she was remorseful about Axton’s death – she waited three more years, presumably until she was at, or closer to, retirement age.

Hooper, whose daughter Charley was born severely brain-damaged in 2005 after midwives failed to properly resuscitate her, says although she’s helped dozens of families, she was unaware of the review tribunal option until it was suggested by the Director of Proceedings.

She says families should not have to struggle to find out what options are open to them, let alone have to drive the process.

“There’s a complete false imagery out there that all of these systems are in place if something does happen to you, that it will all kick in. But it doesn’t. You’re just left. Everything feels very weighted against the families. It’s up to them to find stuff out, to beg and scream and scratch to get to the next step.”

Photo/Trefor Ward

Specialist team

Hooper would like to see a team set up for maternity cases in the same way a serious crash unit examines bad vehicle accidents.

“Whether your baby is dead, dying or a near miss, if you have a maternity event where you had an otherwise healthy full-term baby who should have been born okay to a relatively low-risk mum with no pre-existing conditions, there should be a team of people to investigate in every district, at least in every tertiary hospital [in the four main centres plus Hamilton].”

Such a team could find out what happened and keep the family informed about the HDC and ACC and help them through those processes. “They should be leading them there, holding them by the hand.” The information they gathered would be a big help to the coroner and any subsequent investigations.

Although the Perinatal and Maternal Mortality Review Committee (PMMRC) independently examines a proportion of cases of death and serious disability involving mothers and newborn babies, families aren’t involved. “They anonymise everything, so even if they find something, they can’t feed it back to the family or the practitioner,” Hooper says.

She understands the compensation will be paid by Punita’s insurance, and she hopes that if there are more such orders, it will improve patient care. “The more insurers have to pay out, the more careful they are going to expect practitioners to be.”

The Director of Proceedings, Nicola Wills, told the Listener that the tribunal had not itself awarded damages since 2000. That year, $20,000 was awarded against Wellington midwife Jean O’Neil who was found to have been negligent in her care of a woman whose baby suffered severe brain damage and died a month after his November 1996 birth at Hutt Hospital.

The HDC says six cases in the past five years have resulted in negotiated settlements. One of those is thought to have been with a second Waikato family, the Barlows, over the death of baby Adam, also in 2009, following a series of errors by midwife Jennifer Rowan. Robert and Linda Barlow declined to comment to the Listener, but in 2015, the tribunal said that Rowan, now known as Jennifer Campbell, had admitted her failings. “From the beginning, all we wanted was that she took responsibility for her actions, and it’s taken five and a half years to get to this point,” Linda Barlow told media at the time.

Law professor Jo Manning.

Wills said although complainants, or “aggrieved persons”, could take cases to the tribunal once a breach of the code was found, she was aware of only one who had done so without the claim being first referred by the Director of Proceedings. In that case, in 2001, the claim was made by the father of a child who had suffered a hypoxic brain injury at birth, but the tribunal ruled it had no jurisdiction because the father wasn’t a consumer with rights under the code – in that case, it was the mother.

University of Auckland law professor Jo Manning, an expert in health law, says the process of winning compensation through the Human Rights Review Tribunal is akin to “getting through the eye of a needle”. Few people know about it, and few qualify.

She believes the law is unnecessarily restrictive, and secondary victims, including fathers and family members, should be able to take proceedings to the tribunal.

Compensation is not usually a dominant motive for patients in the HDC or tribunal process, she says. “People want to know what happened; they want acknowledgement that something went wrong and an apology. They often say they want to make sure this doesn’t happen to anyone else, or another family. Sometimes they want compensation and want to see an errant practitioner sanctioned. In this sort of situation, the tribunal is compensating for the mental distress, the mental injury, the pain and suffering, the grief, the hurt feelings of the mother.”

Simpson-Vogan, who has three daughters – Shana, 12, Souleen, 7, and Shiyah, 17 months – had Axton when she was 24. Her last two children were born by elective caesareans. She says what has hurt most since Axton died is the accusations, even from family members, that “it must have been something I did”, because health professionals “knew their stuff”.

“People just took the view that here’s a grieving mother, she wants to blame someone, she can’t let go and needs to let her son rest in peace.”

For her, the most important outcome of the tribunal process is that Punita has agreed to a set of facts about what went wrong during Axton’s birth. Although the HDC ordered Punita to apologise, her letter apologising for “not meeting the standard of care as found by the Health and Disability Commissioner” was no comfort to Simpson-Vogan, because it was enforced.

She says pushing the system as far as she could was the last thing she could do for her son. But ultimately, it was “for other babies, and other mothers. Mothers should know they’re not going crazy. There are steps you can take and things you can do. It’s just a matter of finding them.”

Axton Mead. Photo/Simpson-Vogan Family Collection

Axton’s story

  • February 21, 2009: Axton Mead is born, floppy and not breathing, at Rotorua Hospital, nearly eight hours after midwife Priscilla Punita disconnects the fetal heart-monitoring machine.
  • February 22, 2009: Axton dies at Waikato Hospital.
  • December 2009: After being told of Axton’s death, the Midwifery Council reviews Punita’s competence. As a result, she is ordered to do a competence programme and produce a plan to show how she will reorganise her practice. The council prohibits her from prescribing until she completes a pharmacology and prescribing course.
  • 2010: Coroner Gordon Matenga finds Punita’s care of Denise Simpson-Vogan during labour was below expectations.
  • February 2012: Action to Improve Maternity (AIM) group founder Jenn Hooper becomes involved and a complaint is laid with the Health and Disability Commissioner (HDC).
  • May 2012: The Midwifery Council tells Simpson-Vogan that Punita is once again practising without conditions.
  • December 2012: Punita surrenders her practising certificate.
  • February 2013: Hooper and Simpson-Vogan are advised by phone that the HDC is unlikely to open a formal investigation, partly because Punita has stopped practising. Hooper complains to the HDC.
  • March 2013: Simpson-Vogan is told the HDC has decided to open a formal investigation into Punita’s care.
  • May 2014: The HDC finds Punita has breached the Code of Consumers’ Rights in her care of Simpson-Vogan, with “severe departures” from accepted standards. Punita is ordered to apologise and is referred to the Director of Proceedings.
  • 2014-2016: The case is referred to the Human Rights Review Tribunal.
  • April 2017: Punita agrees to a set of facts related to the errors in her care. A confidential compensation deal is negotiated with Simpson-Vogan and formalised by the tribunal.
  • June 2017: Publication prohibition orders related to the case are lifted, at the request of Simpson-Vogan and Axton’s father, Russ Mead.

This article was first published in the August 12, 2017 issue of the New Zealand Listener.


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