Abstract
Background
The Claimant, then aged 32, was pregnant. Her due date was calculated as falling on 8th April 2007. She was referred to Queen's Hospital, Romford, for antenatal care. This was her third pregnancy – she had a five-year-old daughter, and miscarried in March 2006.
On 7th April 2007 Mrs L presented to the hospital with concerns about reduced fetal movements. CTG monitoring was carried out and was reassuring, with a fetal heart rate of 130bpm and normal variability. Other observations were normal and she was advised to keep her subsequent antenatal appointment on 11th April 2007.
On 11th April 2007 Mrs L attended her Antenatal Clinic, as planned, where she again reported concerns of reduced fetal movements. CTG monitoring was commenced and the midwife became increasingly concerned about decelerations in the fetal heart rate. An ambulance was called and Mrs L was transferred to Queen's Hospital, Romford, Essex. However, both the sirens and lights were not activated. In addition the lifts were not working upon her arrival at the hospital.
Mrs L was admitted to hospital at 15.50 and CTG monitoring commenced at 16.10 which was reported to be normal. However, there was evidence of the fetus recovering from a deceleration when the monitoring commenced, therefore the trace was neither normal nor reassuring.
Further decelerations were recorded at 16.40, 16.55 and 17.40 and only then did the midwife call a doctor to attend.
Shortly after, the Claimants were informed that a delivery by emergency Caesarean section was required and at 18.00 Mrs L was prepared for the Caesarean. Sadly, at 18.20 staff were unable to detect a fetal heart rate and at 18.40 a scan revealed that the infant had died. Subsequently, Mrs L had to deliver vaginally, and at exactly midnight the baby was born.
Liability
The claim was pursued against the Trust for failure to promptly admit Mrs L to the labour ward upon her arrival at the hospital, failure to have adequate regard to the trace that was obtained by the midwife at the Antenatal Clinic, failure to ensure that Mrs L was promptly assessed by staff upon arrival to the hospital, failure to act upon the abnormal CTG trace commencing at 16.10, failure to adequately monitor the CTG trace during admission, and failure to request the doctor's urgent attendance and to perform an emergency Caesarean section in sufficient time to avoid injury and death. Breach of duty was admitted by the Defendant Trust.
Causation
Had an emergency Caesarean section been performed in sufficient time, the baby would have survived and the First and Second Claimants would not have suffered psychiatric injury. In addition, Mrs L would have avoided the pain and suffering of a vaginal delivery and the anguish of knowing that she would be delivering a stillborn baby. The Defendant Trust admitted that the breach and the suffering were causally linked.
Injuries suffered
Mrs L endured unnecessary pain and suffering including the pain of a vaginal delivery, loss of expectation of a successful pregnancy, shock and psychiatric injury including anxiety, depression and post-traumatic stress disorder. She underwent a course of cognitive behavioural therapy.
Medical evidence from a psychiatric expert confirmed that she had suffered from a moderately-severe acute stress disorder with anxiety, depression and post-traumatic stress disorder. After the therapy Mrs L continued to suffer from a generalized anxiety disorder predominantly related to fears regarding the health of her children. This manifested in hyper vigilance and enhanced irritability. Prognosis was guarded but the expert felt that Mrs L would make substantial improvement over the next two years assuming she suffered from no further upheavals.
Mr N, a Secondary Victim in this case, suffered shock and trauma and developed psychiatric injury, namely a prolonged adjustment disorder characterized by flashbacks, anger and a personality change. Mr N also underwent cognitive behavioural therapy.
After undergoing therapy Mr L continued to exhibit elements of a prolonged adjustment disorder, characterized as a mild depressive state. Symptoms included visualizing images of his deceased daughter. The therapy, however, helped to reduce the intensity of Mr L's symptoms.
The psychiatric expert felt that Mr L's prognosis was dependant upon the continuing health and stability of Mr L's family and settlement of the litigation which would allow him to ‘move on’.
Quantum – general damages
The majority of reported awards (mainly maternal) suggested that general damages may fall between £20,000–£26,000 in respect of injuries arising from a stillbirth. Recent reported settlements had settled for more moderate sums, ranging from £20,000–£35,000 for both parents. In turning to the Judicial Studies Board Guidelines, Counsel advised that the most appropriate bracket for the psychiatric injuries suffered by both Mr and Mrs L is that for moderately severe injuries (£12,500–£36,000) or moderately severe post-traumatic stress disorder injuries (£15,250–£40,000). The injuries would likely fall within the mid-range of the brackets with Mrs L's being enhanced moderately by the pain and suffering associated with the labour.
Settlement
The Defendant's initial Part 36 offer of £24,500 was highly disappointing, therefore was rejected immediately. Court proceedings were issued. The Trust then offered a significantly larger sum, £40,000 for full and final settlement. This was also rejected and a counter offer of £60,000 was made. The Defendants rejected this offer and subsequently offered £50,000 to settle the claim. Various oral and written correspondences were exchanged in which the Defendant was reluctant to offer anything above £55,000 as they had valued the claim at £50,000. However, the Claimants would not settle for less than £57,000. Subsequently, the Trust made a Part 36 offer of £56,000 on 25th February 2011, which was accepted on 7th March 2011.
Overall summary of losses
The sum of £56,000 was offered globally but can be broken down appropriately as follows:
£19,000 £24,850 £3000 £1000 £1275 £700 £225 £5000 £600 £100 £250
£12,150