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NEONATAL MEDICAL NEGLIGENCE CASE REPORT
RICHARD CHEUNG
D.O.B: 27th January 1995
Quantum - periodical payments of damages following neonatal negligence
Richard Cheung -v- South Manchester University Hospitals NHS Trust
Background to the Medical Negligence claim
Richard Cheung was born on the 27th January 1995 at Withington Hospital, Manchester. He was premature (36 weeks gestation) and his weight (1.95kg) was well below the average even for a baby of such prematurity. Nevertheless he was well with good APGAR scores. Richard was kept with his Mother and was not transferred to the Special Care Baby Unit. Although no note was made of any need to monitor his blood sugar level a note was made timed at 1900 hours recording a satisfactory dextrostix measurement of 2.5-5 mmol/l. The note continued with the suggestion that dextrostix be taken before the next feed.
On the 28th January 1995 at 10.30 Richard was checked and again he was found to have a satisfactory blood sugar level. After 11.10 that morning no further blood sugar measurements were taken for approximately the next forty-six hours.
On the 29th January 1995 at 12.30 Richard was checked and found to be jaundiced so bloods were taken for serum bilirubin levels. He was alert and feeding well. At 14.25 hours the serum bilirubin test showed raised bilirubin and it was decided to give phototherapy, which was commenced at 16.00 hours. At 19.00 hours it was noted that Richard was sleepy and not interested in breast-feeding.
On the 30th January 1995 a note was made early in the morning referring to the events of the previous night. It was noted that Richard had been put to the breast early on and had then been topped up although at his next feed he had been very sleepy and had to be tube fed. It was noted that he should be tube fed at his next feed. At 8.45 a.m. on the 30th January, Richard appeared to be very sleepy and slightly dusky when feeding. His heart rate was 140 and he was very quiet and so a Paediatrician was summoned. The Paediatrician did not attend and so the Special Care Baby Unit was asked for advice and advice was given that Richard should be taken to Special Care.
He was transferred to the SCBU at around 8.45 a.m. Recent problems with jaundice and feeding were noted and it was questioned whether blood sugar measurements had been taken. On examination Richard was noted to be “lethargic ++/drowsy, jaundice, episodic rolling of eyes, episodic back arching … crying increased pitch.” At the same time it was noted that his oxygen saturation was satisfactory and there was no respiratory distress. The differential diagnosis were considered to be cerebral irritation, meningitis and jaundice but still no blood sugar was taken and nor was any note made of the need for blood sugar measurements to be taken.
At 10.30 a.m. an Intensive Care Chart was opened and Richard was reviewed by the Registrar. It was noted by that time that a blood sugar level had been taken in the SCBU and blood sugar was unrecordable as it was so low. It was noted that Richard did not handle well at all, there were problems with intermittent sun setting (when the eyes deviate downwards and large amounts of the white of the eyes is visible to the examiner) and that Richard became dusky on handling with arching and possible fitting. It was thought that he was either septic or hypoglycaemic. It turned out the latter diagnosis was correct.
As a result of his assessment the Registrar ordered that an intravenous infusion of Dextrose with normal saline should be set up and a lumbar puncture performed. Despite intravenous Dextrose Richard’s blood sugar levels did not return to a satisfactory level until 18.00 hours.
It was alleged on Richard’s behalf that the Defendant had been negligent in failing to recognise the need to anticipate hypoglycaemia given his prematurity and low birth weight. They had failed to undertake regular and appropriate monitoring of his blood sugar particularly overnight on the 29th/30th January 1995 when he was sleeping and not feeding. As a consequence, Richard’s blood sugar reached such a low level that it was said to be unrecordable when an appropriate response to monitoring, he should have maintained a normal blood sugar reading. It was further alleged that when the low blood sugar level was noted on the morning of the 30th January 1995, the Defendant was slow to restore and maintain normal blood sugar levels.
As a consequence, Richard sustained severe hypoglycaemic brain damage resulting in a cortical visual impairment, severe learning difficulties and behavioural problems. Richard did not however have any other physical impairment.
As in most medical negligence cases the Defendants denied liability, contending that they recognised the risk of hypoglycaemia as evidenced by the monitoring of Richard’s blood sugar at various intervals. Such monitoring was said to have been appropriate and regular. Whilst Richard was acknowledged to have been sleepy and reluctant to breast-feed over night on the 29th/30th January, it was stated that he did feed from a bottle and there was no indication that he was jittery or irritable when handled at or around that time. Furthermore, Richard’s hypoglycaemia was said to have been corrected over a short period of time by the administration of sufficient and appropriate Dextrose. On the issue of causation, the Defendant argued in their defence that the period of hypoglycaemia was of insufficient duration to cause the extensive damage suffered by the Claimant.
The case was listed for a preliminary trial on liability issues. The Defendant repeatedly delayed service of expert evidence on liability eventually indicating in correspondence that no expert evidence would be relied upon and confirming that liability would not be disputed. Judgment was entered for the Claimant on the 9th December 2002 with damages to be assessed. Directions were given for the assessment of quantum.
Outcome of Neonatal Negligence Claim
Payment into Court
The Defendant did on the 13th December 2002, before any expert evidence on quantum issues had been obtained by the Claimant paid into court, the sum of £2.5m . In view of the lack of expert evidence, the Claimant’s Litigation Friend was told that no advice on the merits or otherwise of the payment into court could be given at that time sufficient to persuade a court to approve settlement.
Experts instructed
The parties then proceeded to instruct the following experts on quantum issues: -
Claimant
Professor Malcolm Levene, Consultant Paediatrician Professor Gordon Dutton, Consultant Paediatric Ophthalmologist with a special interest in cortical visual impairment. Dr. Gianetta Corley, Educational Psychologist with a special interest in visually impaired children. Mr. David Johnson, Neuropsychologist.
Peter Ball, Architect.
Maggie Sargent, Nursing Care.
Julia Ho, Occupational Therapist.
Defendant’s experts
Dr. Lewis Rosenbloom, Consultant Paediatric Neurologist. Ms. Lynn McCall, Educational Psychologist. Dr. Tom Kelly, Neuropsychologist.
Yvonne Murray, Nursing Care.
Frankie Turner, Occupational Therapy.
Paul Withey, Surveyor.
Jointly instructed experts
Mary Clegg, Physiotherapist.
Lesley Cogher, Speech and Language Therapist. Steve Martin, Information and Communication Technology Expert.
Professor Levene had originally considered the Claimant’s life expectancy to be sixty years, however following improvements in the Claimant’s communications skills and behaviour and by raising the starting point for the uninjured life expectancy based on family longevity he proposed a life expectancy of 76.5 years.
Dr. Rosenbloom for the Defendant estimated Richard’s life expectancy at 60 years.
For the purpose of assessing damages and following a without prejudice meeting with the Defendants, a revised life expectancy of 68.25 years was accepted. This produced a multiplier for future loss of 31.12.
During the course of the without prejudice meeting with the Defendant an offer of £4.5m was forthcoming after further negotiations. The sum was regarded as reasonable by the Claimant’s advisors. The breakdown of the £4.5m was broadly as follows: -
- General Damages for pain, suffering and loss of amenity £165,000.
- Interest on general damages £1,615.
- Past losses including interest £180,000.
Future losses
- Care £2,450,000.
- Education costs £300,000.
- Accommodation £400,000.
- Loss of earnings and pension £450,000.
- Aids and equipment £57,000.
- Transport costs £63,000.
- Therapies £120,000.
- Technology aids £50,000.
- Miscellaneous increased annual costs £100,000.
- Court of Protection costs £16,000.
- Receivership costs £150,000.
Structured settlement of Neonatal Medical Negligence Claim
The matter came before Mr. Justice Hughes sitting in the High Court of Justice, Manchester District Registry on the 24th February 2004 when an adjournment order was made as proving in principle the award of £4.5m with an investigation into the merits of periodical payments ordered.
Mr. Ian Gunn of Tenon Financial Services was instructed and the Defendant’s were invited to provide an estimate of what capital sum would be required to be retained by the Defendant from the settlement in order to provide periodical payments index linked to the RPI of £100,000 per annum for the Claimant’s life.
The NHSLA indicated that Richard would have to forego £3.28m of the £4.5m agreed in order to produce the periodical payments sought. With an agreed multiplier of 31.12 a lump sum equivalent would be £3.112m. The difference between these 2 figures represents a discount of around 5% reflecting the benefits of a structure.
Ian Gunn prepared a detailed advice pursuant to Part 40 CPR Practice Direction, which became effective in October 2003. Mr. Gunn concluded that the proposed figure was to Richard’s considerable advantage and undoubtedly in his best interests and significantly outweighed the modest discount implicit in the structure. The Defendant’s offer made in March 2004 followed discussions between the NHSLA and HM Treasury which apparently resulted in agreement on the 6th February 2004 as to a revised method of calculating whether self funded structured settlements represent a “value for money.” In the period since the 31st March 2003 when HM Treasury reduced the discount rate used in the financial analysis for future cash flows in the public sector there had been fewer (if any) structured settlements in NHS LA cases until the revised method of calculation in February 2004.
The matter concluded with a final order providing for the periodical payments as set out above on the 7th April 2004.
Mr. Andrew Moran Q.C., Byrom Street Chambers and Mr. Richard Pearce of Peel Court Chambers Manchester were instructed by JMW Solicitors on behalf of the Claimant.
Graham Morrow Q.C. and Louis Browne of Exchange Chambers Liverpool instructed by Hill Dickinson solicitors, Liverpool for the Defendant.
Medical Negligence Cases :- This report was provided by Eddie Jones, Partner JMW Solicitors, Manchester.
