Cerebral Palsy - Case Report

CLINICAL NEGLIGENCE CASE REPORT

CLINICAL NEGLIGENCE SETTLEMENT : CEREBRAL PALSY

The Claimant's mother, JA, became pregnant in or around August 1985, when she was 15 years old. Her antenatal care was shared between her General Practitioner and St Mary's Hospital, Manchester. She first attended the hospital for antenatal care on the 14 February 1986, when her expected date of delivery was calculated to be the 12 May 1986. She attended her antenatal appointments as requested.

At the antenatal appointments on the 4 April, 18 April, 25 April, 2 May and 9 May the fetus was noted to be active. On the 25 April the scan showed a "thinnish baby" and a note was made to "keep a close watch on growth".

On the 16 May 1986, JA attended hospital for a further antenatal appointment. She expressed concern to those treating her that the fetus, which was normally active, was not. A cardiotocograph (CTG) trace was carried out for five minutes and she was told that the baby's heart was "fine" and "not to worry about it". She was told she should return for her next antenatal appointment on the 23 May 1986.

However, because of JA's continuing concerns regarding reduced fetal movements, she returned to hospital on the 21 May 1986. CTGs were carried out. A trace was carried out at about 15:00 for 23 minutes. At 13:30 she was transferred to the central delivery unit and a further trace was undertaken. There were concerns over decelerations on the CTG trace and at 15:40 the membranes were artificially ruptured. No liquor was present. It was noted that there had been two bradycardic dips on the pre labour CTG trace. It was decided that an emergency caesarean section for fetal distress should be performed.

The Claimant was delivered at 16:49. Meconium was passed at delivery. The Claimant's birth weight was 2.72 kgs and the head circumference was 34.3 cms. She was resuscitated at birth by bag and mask. She fitted. An ultrasound scan showed cerebral oedema. The Claimant gradually settled and was allowed home on the 3 June 1986.

BREACH OF DUTY

It was alleged that the Claimant's care on the 16 May 1986 was negligent in that the CTG trace was carried out for too short a time and that the CTG which was carried out was incorrectly interpreted. The Claimant's case was that the CTG showed significant unprovoked decelerations and that JA should not have been wrongly reassured, but that the Claimant should have been delivered on the 16 May 1986.

CAUSATION

In terms of causation, it was alleged that had the Claimant been delivered on the 16 May 1986, she would have avoided all injury. The Claimant has bilateral cerebral palsy, with cordical visual impairment. She has a left hemiparesis with some leg links discrepancy. She suffers from moderate learning difficulties.

The Claimant's evidence in relation to life expectancy was that this was reduced by perhaps eight years in comparison to the general population of women her age.

PROCEEDINGS

A pre-action protocol letter was sent on the 17 September 2002. On the 18 March 2003, the Defendant admitted its liability to compensate the Claimant for the injuries sustained, as a result of the delay in her delivery. Issues of quantification were then focused upon. However, subsequently, the Defendant's solicitors indicated that they might seek to withdraw that admission. Proceedings were subsequently issued and an application for summary judgment and/or judgment on an admission was made on behalf of the Claimant. That matter was listed for hearing on the 18 November 2004. The Defendant then formally conceded that judgment ought to be entered against it and directions were given, together with an interim payment order on the 18 November 2004. The matter was listed for a five day assessment of damages trial on the 26 June 2005.

The Claimant, having served a fully pleaded schedule and documents in support of the issue of proceedings, made a Part 36 Offer to settle the matter in the sum of £2,125.000.00 on the 26 November 2004. This was rejected by the Defendants. They made a counter offer on the 31 December 2004 in the sum of £1,800.000.00. It was felt that this was a proper one to accept as a conventional settlement, but the Defendants were asked to consider structuring part of the damages. The Defendants were therefore asked what they would be prepared to pay on the basis of a lump sum of £1,000.000.00 and retention by them of the balance of £800,000.00. On the 1 February 2005, the Defendants confirmed that they would be willing to pay the Claimant a lump sum of £1,000.000.00, together with annual payments of £25,500.000 linked to RPI for life. Mr Ian Gunn of Tenon Financial Services advised the Claimant's Litigation Friend in relation to the structured settlement. On the basis of an expectation of life of approximately 79 years the capitalised value of the settlement, discounting future payments for accelerated receipt, was £1,792,763.00. Thus the proposed structured settlement secured the Claimant a similar value to the lump sum on offer.

The breakdown of the £1,800.000.00 was broadly as follows:

General Damages £110,000.00
Past Care and Miscellaneous Costs £72,000.00
Future Care £908,000.00
Future Education Costs £8,000.00
Future Loss of Earnings £300,000.00
Future Aids and Equipment £120,000.00
Future Medical and Therapy Costs £22,000.00
Future Accommodation Costs £90,000.00
Future Holiday Costs £150,000.00
Receivership and Court of Protection Costs £140,000.00
Interest on General Damages and Special Damages £15,000.00
TOTAL £1,800,000.00
CRU Nil

The settlement was approved by the High Court of Justice and the Court of Protection in February 2005.

Mr Michael Shorrock QC and Mr Richard Pearce of Peel Court Chambers, Manchester, were instructed by JMW Solicitors on behalf of the Claimant.

John Whitting of 1 Crown Office Row Chambers, London, was instructed by Hempsons Solicitors, Manchester for the Defendant.

This report is provided by Olivia Scates, Partner, at JMW Solicitors, Manchester.

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