Abstract
Background
The Claimant claimed damages for clinical negligence arising out of the treatment her, now deceased, newborn son received from his health visitor and at the A&E Department of Mayday Hospital.
The Claimant's son was born in December 2004 with a congenital cardiac abnormality, namely corrected transposition of the great arteries. He was under the care of a paediatric cardiology team. Over the months following his birth, he was seen on several occasions by a health visitor, employed by the First Defendant, to monitor his progress. On some of these visits he was weighed. He failed to thrive and the general trend was one of weight loss.
On 6 January 2005, at a cardiology appointment, the Claimant's son was noted to be difficult to rouse and the staff wished to admit him, however, could not because there were no available beds.
On 31 January 2005, the Claimant's son was taken to A&E at the Mayday Hospital with a one-week history of dribbling and frothing clear sputum from his mouth and several episodes of gagging, cyanosis of the lips and breathlessness. In addition, a two-week history of vomiting and a one-day history of diarrhoea were noted. The Claimant advised those treating her son that on occasions she had to blow over his mouth to encourage him to keep breathing.
The A&E discharge summary failed to make reference to the former symptoms other than the diarrhoea and vomiting. All of the above symptoms continued and the Claimant informed her health visitor who advised her to contact her GP. The Claimant's son's GP concluded that, in light of the misleading discharge summary, the Claimant's son simply had an upset stomach.
On 21 February 2005, a GP from the Claimant's practice performed the Claimant's son's eight-week examination. This was found to be satisfactory and the Claimant was told babies with heart conditions were always small. Little attention was given to the previous A&E attendance due to the misleading discharge summary although the Claimant had noted her concerns in her red book.
The Claimant's son continued to drop centiles and on 6 June 2005 was noted by his GP to be failing to thrive and be on the 0.4th centile.
On 10 June 2005, after the Claimant's son's condition had deteriorated, he was seen in A&E at another hospital and was noted to be sweating, pyrexic, feeding poorly and struggling to breathe. He was taken to the resuscitation area, intubated and ventilated before being transferred to Guy's and St Thomas' Hospital. He was diagnosed with severe respiratory and metabolic acidosis with an ABG pH of 6.87 and elevated WBC and lymphocyte counts.
The Claimant's son was fitted with a pacemaker but continued to deteriorate; he developed heart failure and arrested several times. The Claimant's son sadly died on 15 June 2005.
Procedure
Medical records were obtained from the treating hospitals and the Claimant's GP practice and limitation was extended by agreement with the NHSLA. Proceedings were issued out of the High Court of Justice, Queen's Bench Division on 8 April 2009 to protect the Claimant's position.
The Claimant's Solicitors were notified by the NHS Litigation Authority that although investigations have been commenced on behalf of Croydon Primary Care Trust, Mayday Healthcare NHS Trust had failed to report the claim and, therefore, investigations on that Trust's behalf could not be commenced. The Claimant proceeded with a conference with Counsel with a view to preparing for formal service of proceedings.
A letter of response was served on behalf of the first Defendant denying liability and causation. It was argued that that given the Claimant's son was under the care of his GP and paediatric cardiologist, the health visitor's actions had been reasonable. The Claimant had fully supportive independent medical evidence from health visitor, paediatric cardiology and paediatric experts, none of whom were caused to alter their opinions after consideration of the letter of response. The Claimant made a Part 36 offer of £29,000 in late April 2009. The offer was rejected.
Allegations of negligence
The Claimant brought a claim on behalf of her son's estate and on her own behalf under the Fatal Accidents Act 1976; she also sought damages for psychiatric injury due to the shocking repeat resuscitation events she witnessed in the days just prior to her son's death.
It was the Claimant's case, based on persuasive expert evidence, against the First Defendant that the Claimant's son should have been referred to his GP or paediatrician for his failure to thrive from 3 months of age as his weight dropped down through the centiles. Further, that the ongoing episodes of cyanosis of the lips, gagging and breathlessness warranted referral and investigation.
When the failure to thrive was noted on 4 May 2005, the Claimant's son was on the 0.4th centile and the urgency of the referral ought to have been expedited given the episodes described above and ongoing maternal concern. It was further alleged that the First Defendant's health visitor had failed to weigh the Claimant's son and instead formed a vague opinion by merely looking at a clothed baby, she then failed to monitor the Claimant's son between 3 March 2005 and 4 May 2005. In general, the health visitor failed to follow-up or monitor the Claimant's son, and failed to address the underlying issues behind his failure to thrive.
Against the Second Defendant, the Claimant had expert evidence that it was negligent to perform only a superficial investigation into his above described episodes that lead to his A&E attendance on 31 January 2005; this was amplified by the fact that the Claimant's son had a known cardiac illness. Had the Second Defendant correctly appreciated that this was a deterioration in condition, or arranged further referral, review and investigations the Claimant's son would have been treated with a far more favourable outcome. Finally, the Claimant asserted that the Second Defendant negligently failed to arrange a 24-hour ECG or follow-up and misleadingly did not inform the Claimant's GP regarding the concerning signs the Claimant's son had presented with.
Accordingly, it was the Claimant's case on causation that but for the failings in the care provided to her son, he would not have deteriorated to the point that he did at the time of his death. Instead he would have been referred far earlier, his failure to thrive would have been treated successfully and on the balance of probabilities, he would still be alive and well today.
Settlement
Surprisingly the letter of response served on behalf of the First Defendant was prepared without the benefit of sight of all the relevant medical records. The Claimant's Solicitors pointed this out to the NHSLA and offered to disclose the records but the offer was not taken up. Proceedings were issued protectively due to limitation issues and the failure on the part of the Second Defendant to serve a letter of response within the Protocol period, meaning that preparations for service could not be avoided. Both sides made Part 36 offers and finally settlement was reached only a few days before the last date for service.
The total damages award can be broken down approximately as follows:
approx £5000 approx £4340 £10,000 £2160 £500
(The Claimant chose not to claim for funeral expenses.)
The Claim was funded under a conditional fee agreement.