Abstract
Background
On 23 June 1995, the Claimant's mother attended her GP practice having had a positive pregnancy test the previous day. At the appointment it was estimated that the date of delivery of the Claimant would be 24 February 1996.
The Claimant's mother was referred to Basingstoke District Hospital for antenatal care. Her first appointment was on 18 July 1995 when her estimated date of delivery was amended slightly to be 22 February 1996.
An ultrasound examination was performed on 29 September 1995 which showed that the pregnancy was at 19 weeks and 4 days. The Claimant's mother was seen by a doctor at the hospital on 9 October 1995, following which the doctor reported to the Claimant's mother's GP that the antenatal care would be shared between the hospital and the GP, that the 20-week scan had been normal and that the Claimant's mother's next hospital appointment would be when her pregnancy was at 37 weeks.
On 9 November 1995, the Claimant's mother attended an appointment with her GP, the First Defendant, when it was noted that she had raised blood pressure and swelling of her feet and fingers. At this stage the Claimant's mother was approximately 24 weeks pregnant.
On 20 November 1995, the Claimant's mother attended an appointment with her midwife, employed by the Second Defendant. She was noted to be 26 weeks pregnant and to have raised blood pressure. It was noted by the midwife that the blood pressure should be re-checked the following day.
The following day, on 21 November 1995, the Claimant's mother attended her further appointment with the midwife and was still noted to have raised blood pressure. No further action was taken.
The Claimant's mother was next seen by her GP on 27 November 1995. By this time she was experiencing severe swelling to her fingers and ankles and was diagnosed with pre-eclamptic toxaemia. The Claimant's mother was urgently referred to hospital where she was admitted at 17:35. A CTG was commenced which was very abnormal. The Claimant's mother was monitored for a short period before a decision was made that the Claimant should urgently be delivered by Caesarean section.
The Claimant was delivered at 20:12 at approximately 27 weeks gestation, weighing 895 grams. He was in very poor condition upon birth with Apgar scores of 1 at 1 minute, 5 at 5 minutes and 7 at 10 minutes. Meconium was noted to be present. The Claimant was intubated at 2 minutes. The Claimant was discharged home from hospital on 30 January 2006.
The Claimant suffered severe antenatal hypoxia ischaemia and severe respiratory distress syndrome (RDS) after his birth. As a result he suffered permanent damage to his brain in the form of periventricular leukomalacia (PVL) and an intraventricular haemorrhage (IVH).
The Claimant suffers from spastic diplegic cerebral palsy, primarily affecting his legs, moderate-to-severe learning difficulties and epilepsy. He is able to walk only with the assistance of a Kaye Walker or crutches. He is unable to dress himself and is doubly incontinent. He is able to speak but unable to carry on a conversation. He will never be able to live independently, work or handle his own financial affairs and a Deputy has been appointed.
As a result of his injuries the Claimant's life expectancy has been reduced by approximately 15 years.
The Claimant's case
Breach of duty
First Defendant – There was a negligent failure to act upon the Claimant's mother's raised blood pressure on 9 November 1995.
Second Defendant – There was a negligent failure by the midwife in failing to refer the Claimant's mother to either her GP or an obstetrician in light of her raised blood pressure on 21 November 1995, which had not settled from the previous day.
Breach of duty was admitted by both Defendants.
Causation
The Claimant's mother should have been admitted to hospital between 9 and 21 November 1995 and have undergone daily CTG monitoring. By 24 November 1995 the CTG recordings would have shown sufficient changes in the fetal heart pattern to indicate that early delivery may have been required and a 24-hour course of steroids commenced. By 25 November 1995 there would have been no improvement in the fetal heart rate pattern and a decision would have been made to deliver the Claimant.
It was the Claimant's case on causation that, but for the failure to properly manage the Claimant's mother's labour, the Claimant would or, alternatively, should have been delivered on 25 November 1995 and after the Claimant's mother had been given a 24-hour course of prophylactic steroids.
Had this happened, then the Claimant would have avoided the significant period of very severe antenatal hypoxia ischaemia from which he suffered between 25 and 27 November 1995; he would not have had respiratory distress syndrome, or only had it very mildly; and he would not have suffered from either a severe IVH or PVL. The administration of prophylactic steroids is known to have an effect on preventing or lessening the severity of RDS and an independent beneficial effect on the incidence of IVH.
The Defendant's case on causation
Both Defendants' case on causation was that the Claimant should have been delivered by 26 November 1995 and that, had this happened, the Claimant would have avoided the antenatal hypoxic ischaemia he suffered between 26 and 27 November 1995; his RDS would have been reduced but not avoided; he would not have suffered from either severe IVH or from PVL.
The primary dispute on causation was then that, even absent admitted negligence, the Claimant's problems would not have been entirely avoided and specifically he would have had problems with school failure (including learning difficulties), poor attention span, behaviour difficulties and motor incoordination.
Claimant's Expert evidence on causation
Dr M Smith – Consultant Paediatrician
Dr Smith concluded that had the Claimant been delivered on 25 November 1995, and after his mother had undergone a period of 24 hours of steroid treatment, he would have avoided the period of greatest prenatal hypoxic ischaemic stress and that the likelihood of him suffering brain injury in that period would have been substantially reduced. On the balance of probabilities, the Claimant would have avoided brain injury.
In addition, he concluded that had the Claimant still developed RDS following his delivery on 25 November 1995 then this is likely to have been much less severe because of the administration of steroids.
In relation to the Defendants' position on causation, Dr Smith concluded that had the Claimant avoided the severe RDS, IVH and PVL he suffered as a result of the negligent management of his birth then he would have been functioning within the normal range. He would not have been a ‘patient’, he would have been capable of being gainfully employed, he would have had no continuing care needs and would have been able to live an independent life.
Dr M Clarke – Consultant Paediatric Neurologist
Dr Clarke concluded that the sequence of events in the Claimant's case was antenatal asphyxia leading to premature delivery with severe compromise at birth and resultant severe RDS leading to PV-IVH and associated white matter injury, and the white matter abnormality resulted in spastic cerebral palsy.
Dr Clarke further concluded that an infant born at the Claimant's gestation would not be expected to suffer PV-IVH or have spastic cerebral palsy and that, had the Claimant received antenatal steroids or been born before the development of severe asphyxia, it is more probable than not that his RDS would have been much less severe and he would therefore not have suffered PV-IVH.
Dr B Lloyd – Consultant Paediatrician
Dr Lloyd concluded that the Claimant's impairments were caused by a combination of PVL following an intraparenchymal haemorrhage. Had the Claimant received a proper standard of obstetric care, he would have been delivered at least 24 hours earlier and following a 24-hour course of steroids, and he would have avoided a significant proportion of the worsening hypoxic ischaemic insult and RDS. On the balance of probabilities the Claimant would have avoided the severe disabilities he has now.
In specific response to the Defendant's position on causation, Dr Lloyd concluded that the Claimant would have been at increased risk of minor impairment as a result of his prematurity but not that he was likely to suffer from any minor impairment. It was more likely than not that the Claimant would have been unimpaired and, even if the Claimant would have suffered from minor learning difficulties and/or minor motor problems and/or behaviour problems, it is still more likely than not that, as an adult, the Claimant would have been able to live independently, would have been able to earn his living and would have been able to achieve a long-term relationship.
Defendant's Expert evidence on causation
Professor N Fisk – Professor of Obstetrics & Gynaecology
Professor Fisk concluded that the Claimant's brain injury was attributed to his suffering PVL and IVH in the perinatal period, in which antenatal hypoxia has been implicated. Had the Claimant's mother been admitted to hospital earlier than happened she would have been delivered a day earlier than she was, on 26 November 1998, having received prophylactic steroids at least one to two days beforehand. This would have avoided the last 24 hours in which the fetal condition deteriorated, resulted in improved neonatal condition at birth and have lessened and/or prevented the Claimant's RDS. On balance the Claimant's brain injury would have been substantially lessened but for the breach of standard of care.
Dr J Rennie – Consultant in Neonatal Medicine
Dr Rennie concluded that, had the Claimant been born a day or two earlier, in better condition and with the benefit of a full course of antenatal steroids, he would undoubtedly have been better off, he would probably not have developed IVH or cystic PV, however his neuron-developmental outcome would not have been entirely normal due to his extremely low weight, prematurity and placental insufficiency. He would probably still have required artificial ventilation for support in 1995 even if he had not developed significant RDS.
Dr Rennie further concluded that while the Claimant would, on balance, have avoided some of his motor disability, it does not follow that he would have been an entirely normal child. He was likely to have had problems with school failure, poor attention span, motor incoordination and behaviour difficulty due to his prematurity, intrauterine growth retardation and the need for prolonged stay in intensive care with parental separation, artificial ventilation and artificial nutrition. These problems may have affected his ability to function independently in adult life and in a competitive job market. In summary, the Claimant's problems were likely to have been significantly less severe with different antenatal management, but they were unlikely to have been wholly avoidable.
Joint statements on causation
Dr Lloyd (Claimant), Dr Smith (Claimant) and Dr Rennie (Defendant)
Dr Rennie stated that the Claimant suffered from mild intra-uterine growth retardation. Dr Lloyd and Dr Smith stated that any IUGR was no more than mild and quite possibly there was none.
It was agreed that the Claimant suffered from intra-uterine hypoxia consequent upon maternal pre-eclamptic toxaemia and the associated effects on placental function.
Dr Lloyd and Dr Smith remain of the view that the Claimant would, on the balance of probabilities, have survived without any impairment at all if he had been delivered 24–48 hours earlier with the benefit of a full course of steroids. Dr Rennie remained of the view that the Claimant would have certainly escaped major disability but considered that, on the balance of probabilities, he would have suffered from a minor impairment in either learning difficulties, motor incoordination and ADHD, due to placental insufficiency and probably an abnormal CTG prior to delivery.
All agreed that the Claimant was unlikely to be a ‘patient’ under the terms of the relevant mental health legislation had it not been for the breach of duty.
Dr Smith and Dr Lloyd stated that the Claimant would have been capable of being gainfully employed as an adult. Dr Rennie agreed but added that he would not have been able to gain employment of a highly-skilled nature.
All agreed that the Claimant would have been able to live an independent life, would not have required help with personal care and would have been able to achieve a long-term relationship.
Quantum
Claimant's expert evidence
The Claimant submitted expert evidence in the following disciplines: (1) Dr Michael Clarke, Consultant Paediatric Neurologist; (2) Care/Case Management – Anne Harris, Bush & Co; (3) Accommodation – Nicolas Cosmos; (4) Educational Psychology – Albert Reid; (5) Assistive Technology – Mike Gomm, Steve Martin & Associates; (6) Court of Protection – Julia Lomas, Irwin Mitchell.
Defendants' expert evidence
The Defendants submitted expert evidence in the following disciplines: (1) Dr Richard Miles, Consultant Paediatrician; (2) Care/Case Management – Gillian Conradie; (3) Accommodation – David Cowan; (4) Educational Psychology – Anthony Baldwin; (5) Assistive Technology – Colin Clayton; (6) Court of Protection – Hugh Jones, Pannones.
Jointly-instructed expert evidence
(1) Physiotherapy – Wendy Murphy; (2) Speech & Language Therapy – Lesley Caroll-Few.
Key issues in relation to quantum:
As a result of the issues between the parties as to the Claimant's likely level of disability as a result of his prematurity and regardless of the negligence, there was a significant dispute between the parties in relation to loss of earnings. The Defendants initially stated that the Claimant would not have any earning capacity due to the intellectual deficit that he would have as a result of his prematurity. The Defendants subsequently conceded that the Claimant would have some earning capacity but that he would only be employed in semi-skilled work, from the age of 22 years, and that there was a significant risk that he would be unemployed for large parts of his life, and on this basis suggested that the multiplier should be reduced by 50%. The Claimant rejected this argument and stated that the Claimant would have been able to achieve earnings equivalent to those in skilled occupations and that the risk of periods of unemployment was less than put forward by the Defendant and accepted a discount to the multiplier of only 15%. A midway point was ultimately achieved between the parties. Past care was awarded on the basis of commercial rates with a discount of 33% to reflect the fact that the care was provided gratuitously and not commercially, and credit was also given for the carer's allowance paid to the Claimant's mother. In relation to future care, it was submitted by the Claimant that he would live independently from the age of 19 years onwards with a 24-hour care package provided commercially. The Defendants submitted that the Claimant would continue to live with his parents for the foreseeable future and that they would continue to provide the majority of his care, and that the Claimant would then live in group-living accommodation from the age of 35 years onwards. There was also some dispute as to the rates applied based on the area in which the Claimant would be living. This was rejected by the Claimant and this part of the claim was ultimately settled on the basis that the Claimant would receive a commercial care package and would not live in group living accommodation in the future, he would remain in his own accommodation.
Proceedings
The case was originally conducted by a non-specialist firm who had conduct between 1996 and 1998 but made little progress.
The case was then transferred to a different firm in 1998 and, between 1998 and 2001, the medical records were obtained, and initial obstetric and midwifery opinions were obtained. The case was transferred to Withy King in 2001 when the conducting Solicitor joined the firm and brought the case with her. Between 2001 and 2004, initial expert evidence on causation was obtained, however, the case made little progress.
Simon Elliman took over conduct in January 2004 and a lengthy conference with Counsel and all experts took place in December 2004. Following the conference a pre-action protocol letter of claim was sent to the Second Defendant in March 2005 and the response received in August 2005. By this time it became clear that it was necessary to involve the First Defendant and a further pre-action protocol letter of claim was sent to the First Defendant in September 2005, and the response to this letter being delayed until June 2006.
Proceedings were issued and served in October 2006 against both Defendants. Defences were served by March 2007 and the first Case Management Conference held in June 2007 at which time directions were given to take this matter through to a trial on causation and quantum. Due to the complex issues on causation and the significant injuries sustained by the Claimant, expert evidence was required in numerous disciplines. Due to the lifelong needs of the Claimant it was also required to obtain expert evidence as to the appropriateness of a periodical payment order being made.
A trial dated was listed for October 2008. The matter was then pursued expeditiously through to a round table meeting settlement in July 2008 and an approval hearing in October 2008.
Settlement
Settlement was achieved at a round table meeting in July 2008 following 6 hours of negotiations:
Lump sum – £1.8 million (comprising £103,211 gratuitous care and expenses payment to the Claimant's family; £5845.35 CRU Repayments; £149,100 interim payments; and the balance of £1,541,843.65 due to the Claimant). Periodical Payments linked to ASHE 6115 – 75th percentile:
06.10.2008–14.12.2009 = £68,207.86 per annum 15.12.2009–15.12.2013 = £54,000 per annum 15.12.2004–15.12.2049 = £105,000 per annum 15.12.2050 onwards = £110,000 per annum
The settlement was split between the two Defendants with the lump sum aspect of settlement to be paid by the Medical Protection Society on behalf of Dr Hayward, and the periodical payments to be paid by the Royal Berkshire NHS Foundation Trust to ensure the security of the payments for the Claimant's lifetime.
The total value of the settlement was estimated at £4.4 million.
PSLA is estimated between £190,000–200,000.
The settlement was approved by Sir Thomas Morrison at the Royal Courts of Justice on 16 October 2008. The final order included detailed provisions in relation to the periodical payments and passive reverse indemnities in respect of future Local Authority, PCT and NHS payments.
Comment
Due to the fact that the Claimant in this case was born extremely prematurely and therefore his injuries, stemming from PVL and IVH, might well have been regarded as an inevitable complication of this prematurity, causation was a difficult factor in this case.
Breach of Duty was admitted at an early stage by both Defendants, with causation disputed. Both Counsel and the Solicitor for the Claimant remained convinced that there was a good case on causation despite the Claimant's prematurity and, once the Defendants had received their expert evidence on causation from Dr Janet Rennie, causation was conceded to a large extent. However, it was not conceded entirely with the Defendant maintaining the view that the Claimant was likely to have suffered a minor impairment in relation to learning difficulties, motor incoordination and ADHD in any event in relation to his prematurity, and therefore it was necessary to pursue the issue through exchange of expert reports and expert meetings.