Damage Sustained During Birth Claim

Miss H V Burnley Health Care NHS Trust (2004)

The claimant, a 10-year-old girl received £3,600,000 for the severe brain damage sustained during her birth in July 1993. The claimant subsequently suffered from athetoid cerebral palsy. The claimant's fine and gross motor skills were affected by her condition and she suffered from spasms during the night.

Claimant: Female: Newborn at date of accident; 10 years old at date of settlement.

Clinical Negligence: On 31 July 1993, the claimant's mother (M) was admitted to the defendant's hospital in early labour. CTG scans were commenced and reviewed periodically between M's admission and 4.30pm. The CTG traces were satisfactory until 4.30pm when decelerations were noted. A doctor attended M at 4.45pm and assessed that M was late in the second stage of labour and was having early decelerations. The doctor also noted that the fetal head was below the level of the spines.

The doctor advised that M should continue pushing and Syntocinon should be administered as the contractions were beginning to wear off. Syntocinon was therefore commenced at 4.50pm. From this time there were wide amplitude variations in the claimant's heart rate from 160 bpm to 70 bpm. At 5.04pm, the rate of Syntocinon was increased to 60 dpm and decelerations with contractions and pushing was noted at 5.15pm. Soon after there was a fetal heart baseline of 160bpm with decelerations down to 120 bpm.

The claimant was born at 5.42pm. Her umbilical cord was wrapped around her neck, she was not breathing and she did not have a heart rate. The claimant therefore had to be resuscitated.

The claimant sustained injury and brought an action against the defendant alleging that the doctor and midwives:

(i) failed to recognise the evidence of significant fetal distress apparent in the CTG trace from 4.30pm;

(ii) failed to perform an assisted vaginal delivery; and

(iii) were negligent in the administering, continuing and increasing of the rate of the administration of Syntocinon in the presence of fetal distress when such treatment was contraindicated.

The claimant submitted that if an assisted vaginal delivery had been performed at or shortly after 4.45pm, or if she had been delivered prior to 5.25pm with prompt resuscitations, she would not have sustained any injury to her brain.

Liability initially disputed, but an admission was made on 9 May 2003 and judgment was then entered.

Injuries: The claimant sustained irreversible brain damage during her birth.

Effects: The claimant sustained athetoid cerebral palsy, however her intelligence was preserved. The claimant could feed herself and walk independently both indoors and for short distances outdoors. The claimant however, tended to walk on her toes with her feet turned upwards. When walking indoors she often fell and hurt herself on several occasions.

The claimant's fine and gross motor skills were affected by her condition and she suffered from spasms during the night. She also had problems with her visual perception and when dressing herself.

The claimant had full grammar skills and good vocabulary, however her speech was indistinct and it was difficult for strangers to understand her. The claimant could also not write.
Out of Court Settlement: £3,600,000 total damages. Structured settlement agreed as below.

Breakdown of General Damages: Pain, suffering and loss of amenity (PSLA): £175,000; Interest on PSLA: £7,715.50; Past expenses: £137,644.48.

Breakdown of Special damages: Future loss of earnings: £294,875.54; Future care costs: £2,245,057; Future therapy costs: £74,627.04; Future accommodation costs: £312,958.49; Future aids and appliances: £175,185.96; Future miscellaneous costs: £127,927.60; Future Special Education Needs tribunal appeal, teaching and counselling: £18,093.

Background to damages: The above award breakdown was estimated by the claimant's counsel prior to settlement. The claimant indicated that he would settle for £3,650,000, however the defendant made a counter-offer of £3,600,000. This represented 97.148 per cent of the value of the claim and the offer was accepted.

A structure was agreed as follows: to aged 19, the claimant would receive £25,000 per annum and from aged 19 onwards, she would receive £40,000 per annum. A lump sum contingency fund of £2,478,100 was also awarded to include interim payments and CRU.

Manchester High Court (HHJ Tetlow) 1/3/2004

LTLPI 22/3/2004 (Unreported elsewhere)

Document No.: AM0200580