BACKGROUND TO THE CLINICAL NEGLIGENCE CLAIM
The Claimant was the second of twins delivered prematurely at 35 weeks gestation by caesarean section at the Lancaster Royal Infirmary on the 16th August 1987 at 1633 hours. He was a breech delivery, weighed 2kgs and had a head circumference of 32.6cms. His Apgar scores were 5 at 1 minute and 8 at 5 minutes. The placenta was uniovular and twin-to-twin transfusions syndrome was present.
Twin 1 weighed 2.6kgs, had a head circumference of 34.6cms and Apgar scores of 8 at 1 minute and 10 at 5 minutes. Twin 1's haemoglobin was 23, while the Claimant's was only 7. The Claimant was the donor twin and he was pale and floppy at birth. He remained very pale and floppy on transfer to the Special Care Baby Unit (SCBU). Following transfer to SCBU the Claimant's haemoglobin was 7.1, his blood glucose was 0.5, his white cell count was 85 with 90 nucleated red cells for every 100 white cells. His platelet count was 273. He was very unwell. A Dextrose infusion was started, anti-biotics were given, and a blood transfusion started at 2000 hours.
By the morning of the 17th August 1987 the Claimant was noted to be jaundiced, and at 0900 hours his bilirubin was 216. Phototherapy was commenced at Noon. By 1600 hours, his bilirubin was 220. His bilirubin was considered to have risen at a rather alarming rate, and it was recognised that exchange transfusion may well be needed in order to prevent the Claimant's bilirubin level increasing to the point where he developed irreversible Kernicterus, and sustained brain injury.
By 2200 hours the Claimant's bilirubin had risen to 240 and he was developing blotchy purpuric rash on his body and limbs. His haemoglobin was 13 with a white cell count of 36 and a platelet count of 149. There were very high levels of nucleated red blood cells, which counted as white cells.
On the 18th August 1987 the Claimant remained unwell. He was floppy, pale and jaundiced, and the purpuric rash remained. At 0800 hours his bilirubin had risen to 245. His haemoglobin was 14, his white cell count was 43. There were 85% of nucleated cells. Thereafter, no monitoring of the Claimant's bilirubin was performed until a ward round on the morning of the 19th August 1987 when it was 310 at 0900 hours. An untimed note of the 18th August 1987 records the Claimant to be very floppy and upward rolling and jerky movements of his eyes were observed.
At about 0700 hours on the 19th August 1987 the Claimant's condition had deteriorated to the point where he was stiff and arching his back. This indicated he was entering the second stage of Kernicterus. Babies treated in the first stage of Kernicterus have a good prognosis, but the prognosis is less favourable for those who reach the second stage, a high proportion of whom sustain permanent brain damage.
As a result of the failure to monitor the Claimant's bilirubin level between 0830 hours on the 18th August 1987 and the ward round on the morning of the 19th August 1987, the Claimant's bilirubin level between those points could only be estimated. Following the development of second stage Kernicterus at about 0700 hours on the 19th August 1987, the Claimant's bilirubin level would have reduced, and accordingly the level of 310 recorded from a sample taken at the ward round at 0900 hours on the morning of the 19th August 1987, will have represented a reduction from the level which existed at about 0700 hours. The probability is that the Claimant's bilirubin level continued to increase from 0830 hours on the 18th August 1987, reached a peak at about 0700 hours on the 19th August 1987, and thereafter decreased. The Claimant developed brain damage as a result of Kernicterus, which left him with mild dystonic athetoid cerebral palsy, severe hearing impairment, mild learning difficulties and some visual problems.
CAUSATION
The Claimant contended that with appropriate monitoring of his bilirubin levels he would either have received double-phototherapy, sufficient to reverse his increasing bilirubin level, or an exchange transfusion, which would have achieved the same end. With appropriate care, it was argued that he would have avoided sustaining permanent injury.
The Claimant's case was complicated by the fact that a lack of monitoring after 0830 hours on the 18th August 1987, until the ward round the following morning, meant it was not possible to say precisely at what time the latest blood should have been obtained so as to be able to undertake an exchange transfusion promptly.
Liability was denied. The Defendant contended that at 0830 hours on the 18th August 1987 the Claimant appeared generally well. His bilirubin level had only risen by 5 in the previous 10.5 hours. He was tolerating increasing milk feeds, blood glucose measurements were normal, he was stable in air and he was not receiving anti-biotics, or any other treatment. In these circumstances, a responsible body of medical opinion would support the measuring of the bilirubin level only once per day in the circumstances which prevailed, namely in the light of the observations in a baby without evidence of symptomatic blood group incompatibility, he was under phototherapy, and where the level of jaundice appeared to be levelling out.
Whilst there had been a significant escalation in the bilirubin levels in the early hours of life, by 0830 hours on the 18th August 1987 it appeared that the level had plateaued; a significant further rise was not anticipated.
The matter was listed for a trial on liability issues in December 2004. Shortly before trial the Defendant made a formal admission of liability on a 100% basis.
Thereafter, directions were given for the quantification of the claim.
The matter was listed for a quantum trial, commencing on the 27th March 2006.
Shortly before the quantum trial the Defendant admitted that the Claimant's profound hearing loss had been caused by its negligence, as opposed to being the result of some genetic condition. Discussions had taken place prior to trial between the parties, and many of the Heads of damages were no longer in issue. Nevertheless, there remained significant disputes between the parties as to the quantification of past and future care, future accommodation, transportation, and assistive technology costs.
At a joint settlement meeting in February 2006 an offer to settle in the sum of £4,500,000.00 had been made and rejected by the Claimant.
This was followed by a Part 36 Offer in the sum of £5,000,000.00. This was not accepted by the Claimant.
On the first day of the trial the parties entered into further negotiations, as a result of which a further improved offer of settlement was made by the Defendant, which was acceptable to the Litigation Friend, and was approved by the Court.
The matter was adjourned in order to consider whether the damages should be paid in part by way of a periodical payments order.
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