BIRTH ASPHYXIA - Case Report

MEDICAL NEGLIGENCE CASE REPORT : BIRTH ASPHYXIA; CEREBRAL PALSY

Joseph suffers from athetoid cerebral palsy. He is severely disabled being totally dependent on others for self care and mobility. He has a visual impairment and is unable to talk. His intelligence is relatively well preserved. Joseph was born at the Birch Hill Hospital, Rochdale, on the 12th August 1993; the first child born to his mother, Sandra Maria Murray.

The Claimant's mother realised that she was pregnant in January 1993, and was referred by her General Practitioner to the hospital for her ante-natal care. Her expected date of delivery was the 1st August 1993. Her pregnancy proceeded uneventfully. After the expected date of delivery had passed, on the 10th August 1993, Ms. Murray was admitted to the hospital for induction of labour. At 0700 hours on the 11th August 1993 Ms. Murray was transferred to the labour ward for artificial rupture of the membranes. There were two failed attempts to rupture the membranes and, at 1245 hours, a Syntocinon infusion was commenced, which was gradually increased until 1500 hours.

At 1505 hours a vaginal examination was performed and the cervix was 5cms dilated. The cardiotocograph, which had previously been normal, began to show suspicious signs. The Syntocinon infusion was not discontinued until sometime after 0110 hours the following morning. The CTG traces became gradually more and more abnormal, although no action was taken by the staff attending Ms. Murray. A ventouse delivery was eventually carried out and the Claimant was delivered at 0436 hours.

Proceedings were begun in October 1996 and, amongst other things, it was alleged that it was negligent to have persisted with and increased the dose of Syntocinon when the cardiotocographic evidence indicated uterine hypertonus, increasing signs of compromise of the fetal heart, and there was a significant delay in the progress of labour.

It was alleged that a caesarean section should have been carried out by midnight at the latest.

The Defendant eventually filed a Defence in March 1998 admitting that the Claimant should have been delivered by midnight but denying the allegations of negligence continuing after that time, and denying causation.

The Defendant sought agreement for the Claimant to undergo a magnetic resonance imaging brain scan. When this was refused, the Defendants sought a direction from the Court that an expert paediatric anaesthetist opine upon the Claimant's suitability to undergo an MRI scan, presumably with a view to obtaining an Order that proceedings should be stayed should he persist in refusing to undergo a scan.

The Defendants asserted that an MR Scan was necessary, arguing that the Claimant's disabilities might be attributable to brain malformation syndrome or leucomalacia or other cause.

However, in the Claimant's view, there was no clinical evidence which suggested that any of these possibilities were realistic. The Claimant's experts were satisfied, on the basis of their clinical examinations of the Claimant, and post natal ultrasound scans, that his injuries were caused by the negligence alleged. It was also argued on behalf of the Claimant that the risk of MR scan arises substantially from the need for general anaesthetic or sedation, and that such risk could never be ruled out, and that the application was therefore inappropriate.

Despite the case of Hill –v- West Lancashire Health Authority, the Defendants persisted in their application. The Court eventually did make an Order for joint instruction of a Paediatric Anaesthetist to opine on the Claimant's fitness and suitability to undergo magnetic resonance imaging of his brain, and ordered that further directions should be adjourned.

The jointly nominated Paediatric Anaesthetist advised that there were small risks of mortality and morbidity associated with anaesthesia and sedation, and although these were small, there was an ethical dimension to be considered. He stated "it is a tenet of anaesthetic practice that one does not expose the patient to an anaesthetic without a tangible benefit accruing to the patient. The greater risk of the procedure the greater benefit that has to accrue. In this situation, I have to question if there is any direct benefit to Joseph from undergoing the scan, and therefore whether it is ethical to subject him to even a small risk associated with sedation or general anaesthesia".

The Defendant did not then pursue this matter further.

Directions were given in October 1999 that there be a split trial, which was fixed for the 23rd October 2000. After exchange of medical evidence, the Defendant made full admissions in relation to both liability and causation.

Judgment for the Claimant, with damages to be assessed, was entered on the 12th September 2000. Further directions were given and the matter was listed for a disposal hearing to take place on the 4th February 2002.

The Claimant's Schedule of Loss and Damage, dated the 3rd August 2001, claimed damages totalling £6,713,755.00. The Defendant's Counter Schedule valued the claim at £1,613,265.00. The Claimant contended for a life expectancy of 65; the Defendants for a life expectancy of 40.

On the 31st January 2002 the parties were able to agree a whole life multiplier of 25, based on a life expectancy of 54½ years total life. This compromise came about as a result of further work done by Professor Strauss (a statistician who follows up a cohort of cerebral palsy children in California), following a joint meeting between Dr. Rosenbloom for the Defendants and Professor Levene for the Claimant.

On the 10th January 2002 the Defendants paid into Court the sum of £3,000,000.00. This was shortly before a round table meeting. Following that meeting, the Defendants increased their offer to £3,300,000.00, or a structured settlement of £50,000.00 per annum from the date of trial to age 19, and thereafter £80,000.00 per annum, together with a lump sum, of £1,240,000.00. The annual sums were to be indexed linked to the RPI.

That offer was rejected and a further offer from the Defendants ensued, with an increased offer in relation to the lump sum element of a structured settlement to £1,540,000.00. The offers required giving credit for interim payments of £500,000.00 and CRU of £7,235.25. That offer, which equated roughly to a lump sum of £3.5 million was accepted and approved by the Court. It was envisaged that the structured element of the settlement would cover the future care needs of the Claimant. The lump sum represented the other past and future losses. Pain, suffering and loss of amenity was assessed by the Claimant's team in the sum of £185,000.00 plus interest of £24,716.00.

Claimant's Solicitor
Olivia Scates
JMW Solicitors

Leading Counsel
Michael Shorrock QC

Counsel
Richard Pearce

Defendant's Solicitors
Hempsons

Leading Counsel
Terence Coghlan QC

Counsel
Gregory Chambers

JMW Medical Negligence Solicitors

Cerebral palsy due to birth injury cases are very complex and JMW Medical Negligence Solicitors are recognised as leading specialists in this field. 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 that can be in the millions of pounds. 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.

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