Regina v Graeme Stephen Reeves, 16 June 2017. (Not available on Caselaw)
Dr Graeme Reeves was charged that on 14 May 1996, at Sydney in the State of New South Wales, he did unlawfully kill Kerry McAllister. She under his care as her treating obstetrician at the Hills Private Hospital from the time she gave birth on the 8 May 1996 and up to the time she was transferred to the Westmead Hospital on the 13 May 1996.
Dr Reeves entered a plea of not guilty, but did not give evidence in the trial. Last Friday he was acquitted, following a judge alone trial before Judge Zahra of the District Court of New South Wales. The reasons for judgment run to 174 pages. This note provides only a brief summary with extracts.
The reasons for judgment begin with a discussion of the elements of the indictment – in effect, involuntary manslaughter by criminal negligence. His Honour noted:
Generally, the Crown case is that the accused was grossly negligent in that, during the time that Mrs McAllister was under his care, the accused failed to appropriately physically examine her, that he failed to reconsider his diagnosis of viral illness, that he failed to order exclusionary tests for bacterial infection, including blood tests and vaginal swabs, and that he failed to order the commencement of precautionary antibiotic treatment.
Following a detailed review of the evidence and the arguments, the determination of the matter starts on page 133. The relevant findings included the following:
Duty and negligence
I find beyond reasonable doubt that the accused owed a duty of care to the deceased as her treating obstetrician. For the reasons I will set out below, I find beyond reasonable doubt that by his omissions in the care of Mrs McAllister the accused was negligent and in breach of his duty of care to her. Counsel for the accused concedes that the omissions by the accused in the treatment of Mrs McAllister amount to negligence. The issue to be determined is whether the negligence of the accused amounted to gross criminal negligence and merited criminal punishment
I am of the view that had the accused acted earlier, at least by 12 May, Mrs McAllister would have survived.
Gross criminal negligence
I have considered the admissions made by the accused. His assertions amount to an admission of significant failure to identify bacterial illness, to turn his mind to the possibility of bacterial infection in a postpartum febrile patient and to carry out precautionary and preventative procedures, to engage in exclusionary tests and to commence broad spectrum antibiotics. The assertions by the accused amount to an admission that these failures caused the death of Mrs McAllister. Whilst the admissions are relevant to my fact finding, whether the assertions amount to an admission of gross criminal negligence, within the meaning of that term that I must apply, is a matter for me to decide. Further it is a matter for me to decide, based on the evidence of the expert witnesses, whether the omissions of the accused significantly or substantially caused or accelerated the death of Mrs McAllister.
Finally the court concluded that:
Ultimately the omissions of the accused and his error of diagnosis must be considered in the clinical setting in which the accused considered the presentation of Mrs McAllister and in which he made his decisions. There are myriad factors which I have referred to and assessed in the course of these reasons for judgment. These factors inform the court why the accused made errors of judgment. The presentation of Mrs McAllister informs the court of the elusiveness of the symptoms of bacterial sepsis and the imprecision in the identification of that condition by those who attended upon Mrs McAllister subsequent to her giving birth. The management of the care of Mrs McAllister informs the court of the medical practices in identification and treatment of bacterial infection at the time, in 1996, The practices in place in 1996 informs the court why there was a failure by those medical practitioners who attended upon Mrs McAllister prior to her first cardiac arrest to recognise the severity of Mrs McAllister’s illness. The existence of viral illness within the family, the atypical presentation of Mrs McAllister and the elusiveness and rarity of group A Streptococcus infection operated to mislead the accused when he determined the symptoms were attributable to viral infection.
Protocols are now in place to avoid the tragic and catastrophic consequences of the failure to identify the possibility of bacterial infection in a post-partum patient with febrile illness. Viewing the conduct of the accused in the context of current medical procedures would lead to a different outcome. I must however make assessments of the degree to which the accused’s conduct departed from the standard of care of a reasonably competent obstetrician in 1996. Having considered the accused’s negligent omissions in the treatment of Mrs McAllister in the clinical setting in which Mrs McAllister presented in 1996 I am unable to conclude beyond reasonable doubt that the omissions amounted to gross criminal negligence meriting criminal punishment.
As I have noted, the conduct upon which a finding is made that the conduct amounted to gross criminal negligence and merited criminal punishment is that conduct which coexisted with an underlying bacterial infection. I have found that Mrs McAllister was suffering from a bacterial infection at least by the 12 May 1996. Whilst my finding is that I could not be satisfied beyond reasonable doubt that the bacterial infection commenced prior to the 12 May, I am of the view that even if the bacterial infection commenced at the time of the first episode of elevated temperature, having carefully considered the accused’s omissions in treatment, I could not be satisfied beyond reasonable doubt that the negligence in failing to investigate and consider the differential diagnosis of bacterial infection at that time and in the days following amounted to gross negligence meriting criminal punishment.