IN THE MATTER OF:-
D Claimant
-v-
S HEALTH AUTHORITY Defendant
CASE REPORT – SETTLEMENT
On the 6th July 1982 the Claimant's mother was referred to the Defendant hospital for a booking appointment. This was her first pregnancy. The pregnancy continued uneventfully and the Claimant's mother was admitted to the Defendant hospital in labour on the 27th April 1983 at term.
On admission, at 2030 hours the fetal heart rate (FHR) was 120 bpm and at 2130 hours, the FHR was 148 bpm and regular. Shortly afterwards, the Claimant's mother was found to be 3cms dilated and artificial rupture of membranes was performed. Very little liquor drained. A fetal scalp electrode was applied.
The fetal heart rate was monitored by way of CTG. However, the trace was never disclosed by the Defendant. The same was said to have been lost sometime before proceedings were intimated.
The partogram showed a dip in the fetal heart rate 0130 hours on the 28th April 1983 to 60 bpm. At 0140 hours type 1 dips were recorded in the notes, with the fetal heart rate dropping to 60-70 bpm with contractions. The FHR recovered to 120/130 bpm thereafter.
At 0200 hours the partogram noted a drop in the fetal heart rate to about 75 bpm. At 0230 hours the partogram recorded a further drop in the FHR to about 80 bpm. By 0245 hours the Claimant's mother was fully dilated, with the head at the spines. By 0255 hours the FHR was 134 bpm and at 0305 hours 132 bpm.
At 0325 hours the FHR dropped to 60 bpm with contractions and by 0330 hours the FHR was still at 60 bpm and obstetric staff were informed for the first time of difficulties. At 0330 hours oxygen was given by face mask, the perineum was infiltrated with local anaesthetic and at 0340 hours an episiotomy was performed. Delivery was effected at 0345 hours. The third stage of labour was completed by 0350 hours. The Obstetrician did not attend until after the delivery.
The Claimant was born with an Apgar score of 1 at 1 minute (alternatively 3 at 1 minute in the paediatric records). The score improved to 2 at 5 minutes and 5 at 10 minutes.
A note by the then Paediatric Registrar recorded "babe's tracing shows early loss of beat to beat variation followed by some major dips down to 60 bpm. Obstetrician called just prior to delivery but babe delivered. Babe blue, floppy, heart rate greater than 100. Bag and mask 30 seconds/attempted intubation – failed. Registrar called…".
At 0430 hours the Claimant had a seizure and was administered Diazepam. The Claimant was subsequently diagnosed as suffering from cerebral palsy due to birth asphyxia.
THE CLAIMANT'S CASE
The investigation of the claim was hampered by the lack of the CTG trace. The Claimant's primary case was that the umbilical cord was fixed in position by reason of it being looped (not tightly) around her neck. When she passed down the birth canal the cord was so entrained, with the result that there was intermittent cord compression as the cord was compressed between a part or parts of the maternal pelvis and the Claimant. It was alleged that the intermittent compression with resultant and evident (upon a CTG trace which had gone missing) fetal distress did not disappear but continued and was a portent of danger to come.
The fact and degree of intermittent compression ought to have been evident to the Midwives from the trace, manifesting itself in variable decelerations, increasingly with a late component insufficiently severe to have caused any form of brain damage by intermittent or partial hypoxic ischaemia.
The Claimant contended that any reasonably competent Midwife and Obstetrician would have appreciated that the situation demanded the need for close monitoring, with intervention to secure delivery as soon as the circumstances permitted in the event of any sign of fetal distress.
As descent continued, there occurred at about 0320 hours a cord occlusion, which resulted in a marked bradycardia, which became a fixed bradycardia very shortly thereafter. This resulted in total or near total anoxia, producing the characteristic pattern of brain damage from which the Claimant suffered.
The Claimant alleged that no reasonably competent team of Midwives or Obstetricians managing the situation, having regard to the fact of full dilatation of the cervix, and the good prospects for delivery from 0255 hours onwards, would have allowed labour to continue without any intervention before 0320/0325 hours when the occlusion occurred. Had such appropriate steps been taken the Claimant would have been born well before the fixed bradycardia, completely intact and healthy.
THE DEFENDANT'S CASE
The case was strongly defended. The Defendant's contended that intermittent cord compression was a common non-pathological event in labour, which passes off. Although it may produce variable decelerations it, or the decelerations, is/are not a harbinger of doom and the situation did not demand precipitous intervention that the Claimant contended for.
The evidence of the treating Midwives was that there was nothing untoward after the wrongly categorised early decelerations until a series of bradycardias at 0325 hours. As noted, the Claimant was in difficulty insofar as the trace was not available.
It was envisaged that the Defendant would argue that the Paediatrician's note made ex post facto and its evidence was defensive and unreliable and in any event the note was consistent with early cord compression, which resolved at the time it was last recorded by the Midwives.
The Defendant would argue that such compression had passed off and there was no warning sign of any fetal distress or bradycardia until 0320 hours.
The Defendant further argued that the slowing of the fetal heart rate at 0320 hours was not something that would demand an immediate call for an Obstetrician and immediate intervention to secure delivery. It was permissible to wait a short while to see if it passed off.
Furthermore, the Defendant would argue that had there been continuing cord compression, progressing towards occlusion, there would have been evident fetal distress, which the Midwives would not have missed and there would have been damage of a type which is not within the Claimant's presentation. Seen in its proper light the event beginning at 0320 hours was an unheralded late catastrophy, which was managed appropriately with a swift delivery thereafter this could reasonably be achieved by 0345 hours. In those circumstances, the damage was inevitable and did not arise in consequence of any negligence on the part of the attending staff.
The Claimant also had a secondary case, which argued that if she did not succeed on the primary case the Defendant could alternatively be found liable to her for failing to effect delivery at sometime between 0320 hours, when the fixed bradycardia began, and 0340 hours, some 5 minutes before her actual delivery. Depending on when the Court found the Claimant ought to have been born her injuries would have been less than those resulting from her birth at 0345 hours. Expert evidence was by and large agreed by the Paediatric Neurologists instructed by the parties as to the extent of disability the Claimant would have experienced had she been born alternatively at 0340 hours, 0335 hours and 0330 hours.
The matter was fixed for trial commencing on the 1st November 2002. The Defendant commenced negotiations some 4 weeks before trial before an offer of settlement in the sum of £1,800,000.00, subject to Court approval, was reached.
An approval hearing was heard by The Honourable Mr. Justice Lyas on the 1st November 2002 when an Order was made in the terms of the proposal arrived at by the parties. The settlement figure of £1,800,000.00 broadly reflected 55% of the full value of the Claimant's valuation.
Case reported by Eddie Jones, Solicitor for the Claimant of JMW Solicitors Leading Counsel for the Claimant – Mr. Andrew Moran QC of 12 Byrom Street, Manchester Junior Counsel for the Claimant- Richard Pearce of Peel Court Chambers, Manchester
Defendant represented by Hempsons, Solicitors of Manchester
Counsel for the Defendant – Ben Brown QC
