Judgment and £250,000 interim payment in ongoing cerebral palsy birth injury claim

Boyes Turner’s cerebral palsy birth injury lawyers have secured a liability (fault) settlement and £250,000 interim (advance) payment in an ongoing claim for a 10-year-old child with cerebral palsy.

Our client’s cerebral palsy was caused by an acute profound hypoxic ischaemic injury (HIE) to her brain at the time of her birth. She has problems with speech and communication, behaviour and learning. Her mobility is impaired, so she is unsteady and can only walk unaided for short distances.  She will need full-time care throughout her life and adapted accommodation. She has an increased risk (10%) of developing epilepsy.

Signs of fetal distress in labour and delays in maternity care

Her mother felt pain during the night towards the end of her pregnancy at 39 weeks. She went to hospital early the next morning and her history was noted to include abdominal pain, reduced fetal movements, backache and left-sided cramps. There was a delay in starting electronic CTG monitoring of the FHR. The CTG showed abnormalities in the unborn baby’s heart rate (FHR) including a raised baseline, late decelerations after contractions and a lack of healthy accelerations. Ongoing CTG abnormalities included a prolonged deceleration lasting more than three minutes, a rising baseline and further late decelerations with contractions. The midwife was out of the room when the prolonged deceleration occurred, and there were further delays in transferring the mother to the labour ward where continuous CTG monitoring was restarted after a considerable delay.

Consultant’s failure to recognise a pathological CTG trace

As the FHR abnormalities continued, the midwife asked for obstetric review by a doctor. The consultant attended and noted reduced fetal movements, but negligently misinterpreted a pathological CTG trace as suspicious.  She performed a vaginal examination and artificial rupture of the membranes (ARM to break the waters) which drained thick meconium.

Failure to offer the mother a caesarean section after a pathological CTG trace

Our client’s claim was based on the fact that the presence of thick meconium with the pathological CTG trace mandated that the consultant should have offered the mother the choice of two alternative treatments: either an immediate caesarean section to deliver the baby or fetal blood sampling (FBS) to get a more accurate assessment of the unborn baby’s condition. If our client’s mother had been given the choice she would have opted for an immediate caesarean section. Her baby would have been delivered in time to avoid permanent injury to her brain from the acute profound episode of hypoxia which occurred later in the labour.  

NHS Resolution denied liability

The NHS’s legal defence team at NHS Resolution admitted that the CTG trace had been misinterpreted by the consultant. They denied that the consultant should/would have offered the mother a caesarean section, given the thick meconium and pathological trace, in the absence of a terminal bradycardia (dangerously low and declining FHR) on the CTG trace or an abnormal FBS result. Instead, they argued that the consultant should have carried out a FBS, and continued with CTG monitoring. They said the FBS would have been normal at that time and would not have led to an earlier delivery. They denied that the mother had the legal right to make an informed choice between having a caesarean section or proceeding with fetal blood sampling (FBS) in these circumstances, arguing that FBS was not an alternative treatment, but was the simply the next step in the standard management of a pathological CTG trace.  

Acute profound hypoxic ischaemic injury after labour allowed to continue

Having failed to recognise that the CTG trace was pathological, the consultant allowed the labour to continue. About 20 minutes later, the CTG trace showed further deep decelerations in the FHR and a bradycardia (dangerously low FHR). The midwife called for help via the emergency bell and the mother was taken to theatre, where the baby was delivered by an emergency caesarean section.  There was thick meconium at delivery and a large retroplacental clot, possibly from a placental abruption. 

The baby was born in poor condition, with low Apgar scores. She was resuscitated and then observed over the next two days for any respiratory effects from the meconium.  MRI brain scans later confirmed that she had suffered acute profound brain injury around the time of birth.

Liability settlement and interim payment

The liability settlement was reached at a round table meeting (RTM) requested by the NHS’s defence team, NHS Resolution, at a relatively early stage in the contested case, before each party’s witness statements and experts’ reports were exchanged. During the negotiations NHS Resolution accepted 67.5% responsibility on behalf of the NHS trust which managed our client’s birth and her mother’s maternity care. The judgment will guarantee our client’s entitlement to just over two thirds of the potential full value of her claim, overcoming the significant risks in this case, and ensuring that she will receive substantial compensation to pay for lifelong care and other needs arising from her disability.

An interim payment of £250,000 will meet our client’s immediate needs whilst we work with her family and our experts to value the claim before negotiating a final settlement.

Our client’s and her family’s privacy are protected by an anonymity order.

If your child has cerebral palsy or neurological disability as a result of medical negligence or you have been contacted by HSSIB/MNSI or NHS Resolution, you can talk to a solicitor, free and confidentially, for advice about how to respond or make a claim by contacting us.