Birth injury cases are very complex and JMW Medical Negligence Solicitors are recognised as leading specialists in the field of athetoid cerebral palsy claims settlements. Recently they have recovered compensation of £5,000,000 for one of their clients. It is essential to have a solicitor experienced in this field of medical negligence law because these cases are often strongly contested and it takes the skill of a specialist solicitor to recover maximum damages. Legal aid is available for these claims and most children will qualify as it is only the child's income and assets that are taken into account.
CASE MEDICAL NEGLIGENCE REPORT
Quantum – periodical payments of damages following medical negligence at the time of delivery resulting in athetoid cerebral palsy
CD v Sefton Health Authority
BACKGROUND TO THE MEDICAL NEGLIGENCE CLAIM
The Claimant's mother was booked in the spring of 1981 at the Christiana Hartley Maternity Hospital, Southport, Merseyside. She had her first ultrasound scan shortly thereafter and was given an expected date of delivery (EDD) in the late summer of 1981.
Twelve days before the EDD, the Claimant's mother was admitted to the hospital, as the lie of the fetus was unstable and this condition is associated with the risk of cord prolapse.
Following admission, the Claimant's mother was informed that her expected date of delivery had been changed to a week later than the original EDD. She was told that the Consultant whose care she was under was on holiday until the date of the original EDD and that she should remain in hospital. She was told that a decision in relation to the manner of delivery would be made on the Consultant's return from holiday.
However, the Claimant's mother went into labour on the evening before the original EDD. The lie of the baby was then oblique with the head to the left. The Claimant's mother was attended by a junior doctor.
At 19:30 hours the Claimant's mother was having contractions every five minutes and the lie was transverse.
At 21:30 hours a vaginal examination revealed that the cervix was 3cm dilated with the membranes intact. The Consultant was contacted over the telephone and advised that the fetus be pushed straight, that the bladder be kept empty, the patient sat upright and the membranes ruptured to stabilise the position.
At 23:15 hours approximately the junior doctor attempted to perform an external version and ruptured the Claimant's mother's membranes at 23:30 hours. The umbilical cord prolapsed to the right of the fetal head and descended with it. The cervix was at that time 6cm dilated and thick with the head 1cm above the ischial spines. The junior doctor tried to push the head back up and preserve the circulation to the fetus. He also spoke to the Consultant on the telephone who advised that he would attend for a possible ventouse delivery or caesarean section. Forty minutes elapsed from the time of the cord prolapse to the Claimant's mother being taken into theatre for an emergency caesarean section. The Claimant was delivered at 00:27 by caesarean section.
The Claimant had Apgar scores of 2, 5 and 6/7 at birth, 40 and 55 minutes respectively. He was admitted to the SCBU and later transferred to Alder Hey Hospital. He suffered profound birth asphyxia and developed athetoid cerebral palsy.
It was alleged on the Claimant's behalf that, having decided to admit the Claimant's mother at the outset because of the risk of labour occurring at any time and the possibility of cord prolapse occurring with spontaneous rupture of the membranes, that it was negligent not to make any proper management plans for delivery of the Claimant thereafter. The Claimant's case was, that on the balance of probabilities, if an experienced obstetrician had attended upon the Claimant's mother to make a management plan for delivery of the Claimant, that elective caesarean section would have been advised and accepted by the Claimant's mother. In that event, neither cord prolapse nor any brain injury would have occurred.
In the alternative, it was alleged that had it been held upon proper assessment by an experienced obstetrician, that a stabilising induction or version and artificial rupture of membranes was appropriate, that proper preparations for immediate recourse to delivery by caesarean section should prolapse occur should have been made. It was alleged that in that instance there should have been preparation of the Claimant's mother (who should also have been taken to an operating theatre before the procedure was undertaken), preparation of the theatre and the presence of an appropriately qualified team of medical practitioners capable of performing an immediate caesarean section in the event of cord prolapse. In that scenario, it was alleged that the Claimant would have been delivered by caesarean section, had prolapse occurred, well before any injury to his brain.
As a consequence of the mismanagement of his mother's delivery, the Claimant suffered profound asphyxia which caused injury to the basal ganglia of the brain resulting in an athetoid cerebral palsy. The Claimant suffers from involuntary movements affecting all four limbs and he suffers from severe inco-ordination to the extent that he cannot stand and walk nor can he use his arms effectively in many circumstances. He is able however to control an electric wheelchair, the keys of a computer keyboard and an environmental control system. The Claimant's general health is good without any epileptic seizures. The Claimant has preserved intelligence and above normal intellectual capabilities.
The Defendants denied the allegations of negligence made in the pre-action protocol letter and proceedings were issued on the 4 September 2002. The Defendants initially denied liability but subsequently provided admissions, whereafter judgment was entered for the Claimant on the 13 November 2002. Directions were given for the assessment of quantum.
Initially, it was ordered that there be joint experts in relation to care, occupational therapy, accommodation, speech and language therapy, physiotherapy, assistive technology and employment, despite both parties seeking permission of the court to rely on their own experts in relation to the first three specialities. The parties were also given leave to rely on neurological and psychiatric evidence. The order of the District Judge was successfully appealed by the Defendants (with the Claimant's support) and permission for separate reports regarding care, occupational therapy and accommodation allowed. The trial of the assessment of damages was listed to take place on the 8 November 2004 with an estimated length of hearing of 10 days.
EXPERTS INSTRUCTED
The parties instructed the following experts on quantum issues:
Claimant
Professor Michael Barnes, Consultant Neurologist and Rehabilitation Physcian Steve Colgan, Consultant Psychiatrist
Maggie Sargent, Nursing Care Expert
Steven Docker, Housing Expert
Liz Hardy, Occupational Therapist
Defendant's experts
Professor Schapira, Consultant Neurologist Dr Goodhead, Consultant Psychiatrist
Albert Pace, Occupational Therapist (also advised in relation to care) David Reynolds, Chartered Surveyor
Jointly instructed experts
Susan Filson, Physiotherapist
Susan Hamrouge, Speech and Language Therapist Steve Martin, Assistive Technology
John Bryant, Employment
INTERIM PAYMENTS
The Claimant, who as referred to above, is of above average intelligence, and also extremely articulate notwithstanding his communication difficulties due to dysarthritic speech, had previously sought to undertake a degree course at Lancaster University in October 2000. Unfortunately, the experience was not a success because the University were only able to provide community service volunteers who had no experience of dealing with someone as disabled as the Claimant. They were unreliable and unsuitable and the Claimant could not cope. The Claimant found the experience extremely stressful and dispiriting and had to leave Lancaster after a term despite having done well academically.
The Claimant however was determined to pursue a University career and obtained a place at Coventry University to start in October 2003. The Claimant sought interim payments from the Defendants. Whilst a voluntary interim payment of £250,000 was paid, an application had to be made to court to secure a further £250,000 which was required in order to finance the Claimant's move to University. The application was granted on the 29 May 2003. The Claimant purchased a ground floor flat, set up a care regime during the course of the summer before the beginning of his University term. Considerable difficulties were experienced with his care regime, in particular in attracting and retaining suitably qualified personal assistants.
QUANTIFICATION
Professor Barnes, on behalf of the Claimant, considered that there was a slight compromise to the Claimant's life expectancy from normal by five to six years, due to his reduced mobility. The Defendants placed the Claimant's life expectancy at 60 years, based on the evidence of Professor Schapira.
It was ordered that the Claimant's Schedule of Loss be served by 16 June 2004 and the Defendant's counter schedule be served by the 31 August 2004. It was also ordered that a Joint Settlement Meeting take place on the 30 September 2004.
The Defendants made an initial Part 36 offer on the 2 September 2004 in the sum of £4.25m inclusive of CRU benefits and interim payments already made.
During the course of the without prejudice meeting with the Defendant, various offers were made culminating in an offer of £5m.
The Claimant had always been interested in the possibility of a structured settlement agreement and the security provided by that, particularly in the context of a dispute regarding life expectancy. The Defendants made an alternative offer in the sum of £1.3m together with periodical payments of £120,000 per annum index linked to the RPI for the Claimant's life. Difficulties ensued in relation to the lack of transparency in relation to the Defendants "Value for Money" calculations. The Claimant was advised by Mr Ian Gunn of Tenons. However, the Claimant felt that the structured settlement offer would adequately meet his needs for the future.
The matter concluded with a final order providing for periodical payments set out above on the 16th day of November 2004.
Mr Andrew Moran QC of Byrom Street Chambers and Ms Mary Ruck of Peel Court Chambers, Manchester, were instructed by JMW Solicitors on behalf of the Claimant.
Charles Feeney of Castle Street Chambers, Liverpool, instructed by Hill Dickinson Solicitors, Liverpool for the Defendant.
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