£4 million compensation settlement in birth injury claim for an 11-year-old boy with cerebral palsy

Boyes Turner’s cerebral palsy solicitors have secured a £4 million settlement in a birth injury claim for a child with cerebral palsy.

The £4 million compensation settlement was reached at a round table meeting (RTM) with the NHS defence team, NHS Resolution, a few months before the liability trial, despite their strongly stated denial of liability.

Our client suffered a brain injury around the time of his birth. He has cerebral palsy and disability from impaired movement, posture, speech, swallowing/chewing, double incontinence and learning difficulties. He will need adapted accommodation, specialist equipment, therapies and 24-hour care for the rest of his shortened life.

Negligent fetal heart rate monitoring during antenatal care

The medical negligence case related to the care that the boy’s mother received from the defendant hospital when the unborn baby’s heart rate (fetal heart rate or FHR) was found to be abnormally high (tachycardia) during monitoring at an antenatal appointment at 36 weeks. A Doppler ultrasound scan of the fetal blood circulation was normal, and the mother was discharged from the hospital back to the community midwife with specific instructions to the community midwife to listen to the FHR. Our experts advised that this instruction meant that the community midwife was being asked to monitor the FHR more regularly (probably daily) than the merely routine care that the mother received, which resulted in the FHR abnormalities only being detected and delivery taking place when she was next seen at the hospital 11 days later.

Correct monitoring would have led to earlier delivery

Our experts believed that our client’s neurological injury was probably caused by a prolonged partial hypoxic ischaemic insult which began at some time after the mother’s discharge back to the community midwife at 36 weeks. We pursued a claim for our client on the basis that if his mother had received correct care with additional monitoring by the community midwife, further FHR abnormalities would have been detected, prompting earlier delivery. This would have avoided the boy’s brain injury or at least reduced his permanent disability.

NHS Resolution denied that our client’s cerebral palsy was caused by negligent care

NHS Resolution’s experts argued that the unborn baby had suffered a ‘silent’ unavoidable injury before the pregnancy reached 36 weeks gestation. They relied on evidence including the normal ultrasound scan at 36 weeks, MRI brain scan evidence of periventricular leukomalacia (PVL), a condition usually arising from injury to the brain no later than 34 weeks into the pregnancy, and the baby’s relatively good condition at birth with only mild acidosis and no need for resuscitation. Given the normal ultrasound scan at 36 weeks, they argued that it was appropriate to discharge the mother back to the community midwife for standard fortnightly assessments with no additional monitoring requirements.

The case was also complicated by the mother’s recollections of additional antenatal appointments which were not noted in her antenatal records.

The complex nature of the claim and the conflicting experts’ opinions meant that there was a significant ‘litigation risk’ to our client that the liability trial judge might conclude that the claimant had not proved his case.

Negotiations led to £4 million compensation settlement

A round table meeting (RTM) had been planned to enable negotiations in relation to liability to take place with the NHS defence team before the liability trial. Immediately before the meeting, NHS Resolution advised us that they were not willing to discuss an apportionment or settlement of liability, but would only meet to negotiate a final lump sum settlement of the whole claim.

We had fully advised our client’s family of the ‘litigation risks’ affecting their son’s claim. Their preference was for the claim to be concluded via a negotiated out-of-court settlement if an acceptable settlement could be reached which would significantly help them to meet their child’s needs, rather than risk the possibility of not succeeding at trial. It was, therefore, in the interests of our client for us to proceed with final settlement negotiations at that earlier stage of the claim. Despite NHS Resolution’s strong denial of liability, after rejecting several unacceptable offers we persisted with negotiations and secured a £4million settlement, which was subsequently approved by the court.

Ongoing support and protection

Our client will have the benefit of Court of Protection deputyship and support from a case manager in arranging essential home adaptations, therapies, equipment and help with care. The family’s privacy is protected by an anonymity order.

Our client’s family kindly commented:

“We …would like to thank you all at Boyes Turner for always being so amazingly supportive, kind and personable throughout these 10 years. We could not have achieved what we did without being able to work so closely with you all. We would like to thank you all for everything you have done for [name] and couldn't have asked for anyone better to have worked with. Your compassion and professional approach to [name’s] case was greatly appreciated by us as a family. It was such a relief to work with someone like you who was so understanding of my medical issues too. You will never know the difference you will have made to [name’s] life going forward, for his independence and his quality of life. We will definitely be recommending you to anyone that may be starting this process.”

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.