Case: Delay in delivery causing brain injury

Background to the claim

Miss Lucy Jones was born on 17 February 1985. She is now 25 years of age and seriously disabled having sustained brain damage at birth. Her parents have devoted themselves to her care and wellbeing since the time of her birth.

Lucy's mother gave birth to her first child by Caesarean section in 1976. In 1984, she became pregnant with the Claimant and information was provided concerning the earlier Caesarean section and that it was an elective procedure performed because of the non-engaged breech presentation. Following receipt of this information a decision was made by an obstetrician employed by the Defendants to allow a trial of labour. It carried risks as a result of possible scar rupture and the labour needed to be monitored with particular care.

On 16 February 1985, Mrs Jones was admitted to Princess Margaret Hospital in Swindon with a history of early labour and/or spontaneous rupture of membrane. The fetal head was not engaged. Monitoring was started. A trace was abnormal in that there were repeated late decelerations of fetal heart rate. The fetal head was still not engaged and the cervix was undilated not with standing several hours of uterine contractions. The Claimant should then have been delivered by Caesarean section in which the Claimant would have been born without injury. Instead the obstetrician simply instructed that fetal monitoring should continue.

Allegations of negligence and causation

Having recognized the risks attendant upon a trial of labour, the Defendant should have provided the level of monitoring reasonably required; in view of the progress of labour, the Defendants should have recognized that the Claimant should have been delivered by Caesarean section sooner; the Defendants failed to recognize the latest CTG trace was abnormal to review and deliver the Claimant by Caesarean section; they failed to recognize the signs of impending uterine rupture promptly.

Lucy is currently wholly dependent upon others for all of her needs. However, she has a sparkly personality and is fully aware of her condition. With the assistance of therapy and technology it is hoped she will be able to communicate more successfully. Her communication was poor and this limited the extent to which her intellectual abilities could be assessed. The Claimant's neuropsychologist considered that she lacked capacity. This was accepted by the Defendants. The Claimant's expert advised life expectancy was to age 48 years; the Defendant's to age 50 years. It was felt that a multiplier of about 19 would be justified.

The Claimant's solicitors were instructed in 2003. The claim was investigated and initial reports obtained from an obstetrician and a paediatric neurologist. An admission of breach of duty was secured from the Defendants in May 2005. Causation was, however, denied pending further expert advice. Proceedings were issued in January 2006.

Losses

General Damages

£250,000

Settlement

The Defence contended that the sums claimed for care and case management were excessive and the sum spent on purchasing alternative accommodation and the amount proposed to spend on converting was open to challenge. The loss of earnings claims were challenged but any attempt to predict what career path Lucy would have followed and what earnings she would have achieve was, of course, fraught with certainty. Each party's case was based on expert evidence from respective experts.

The Defendants approach suggested a value of £5,464,056.

Financial advice was obtained and concluded that it was undesirable for Lucy to be obliged to carry on the mortality risks in investment risks associated with a conventional lump sum award. It was agreed that it was in Lucy's best interests to conclude the claim on a periodical payments basis.

After negotiations, the Defendant offered the following settlement which was accepted:

A lump sum of £2,500,000;