AB v HEATHERWOOD & WEXHAM PARK HOSPITALS NHS FOUNDATION TRUST (2011)

Total Damages: £2,400,000 plus periodical payments

Trial/settlement date: 7/6/2011

Judge: Parker J

Age at trial: 6 PSLA: £220,000 (£222,619.05 RPI)

Type of Award: Out of Court Settlement (approved)

Court: Out of Court Settlement (Approved, QBD)

Age at injury: Newborn

Sex: Male

The claimant, a 6-year-old boy, received a lump sum of £2,4000,000 plus periodical payments of £125,000 per annum until aged 13, £100,000 per annum from 13 until 19 years old and £175,000 per annum thereafter for the brain damage suffered during his birth in February 2005. He had cerebral palsy with spastic and dystonic tetraparesis and required gastrostomy feeding and 24-hour care.

Claimant: Male: Newborn at date of accident; 6 years old at date of settlement.

Clinical Negligence: At 19.45 on February 22, 2005, the mother (M) of the claimant (C) was admitted to a hospital of the defendant trust (D) to undergo a planned induction of labour at 36 weeks gestation as C’s growth was flattening out. Upon being admitted, M was given 2mg of Prostin. A further 1mg was provided at 8.20 the following morning. On February 24, it was decided that ARM should be performed and so M was transferred to the labour ward. A CTG trace was commenced and was noted as being reactive.

By 8.10 on February 25, M’s contractions were occurring once in every 10 minutes and it was noted on the CTG that there were early decelerations to 90bpm. At 10.20 Syntocinon began to be administered. By 13.20, the cervix was fully dilated and active pushing commenced. However, there was no progress. At 14.45, an obstetrician was called. It was decided that delivery would be attempted using forceps and so M was transferred to theatre. At 15.15 the fetal heart rate was recorded as being 70bpm. The obstetrician decided to wait to see if the heart rate would recover but five minutes later it remained low at between 60 and 70bpm. It was decided that an ultrasound scan should be performed so the obstetrician left theatre to locate a machine. However, at 15.27 he had been unable to locate the fetal heart rate at all and it was decided that an emergency caesarean section would be performed. That was commenced at 15.29 and C was delivered at 15.31. He was described as being blue and floppy. No heart beat was heard. External cardiac massage was commenced at 1 minute. He was intubated at 4 minutes. His Apgar scores were recorded as 0:1, 1:5, 3:10, 4:15 and 5:20. C was transferred to the Special Care Baby Unit where he developed severe hypoxic ischaemic encephalopathy.

C sustained injury and brought an action against D alleging that it was negligent in failing to decide to deliver him by crash caesarean section when the heart rate was recorded as 70bpm from 15:15. C alleged that D’s obstetrician should not have waited any longer than three minutes for C’s heart rate to cover and that he should have been delivered by crash caesarean section by 15:24 at the latest.

Liability admitted.

Injuries: C suffered brain damage.

Effects: C was diagnosed as having cerebral palsy with spastic and dystonic tetraparesis. He had severe microcephaly, significant learning difficulties and epilepsy. He was also doubly incontinent and unable to feed himself and required gastrostomy feeding and 24-hour care.

Prognosis: Medical evidence indicated that C’s life expectancy was to age 40. C would always require 24-hour care. By the age of 13 years old he would require two carers during the days and sleep-in care at nights. He would always have significant learning difficulties and would always require gastrostomy feeding.

Out of Court Settlement (approved): Lump sum of £2,400,000 and periodical payments of £125,000 per annum until C was aged 13, £100,000 per annum from 13 until 19 years old and £175,000 per annum thereafter

Background to damages: The case was settled on a global basis with no particular breakdown of damages. However, the following breakdown was estimated by the claimant’s counsel:

Breakdown of General Damages: Pain, suffering and loss of amenity: £220,000; Physiotherapy costs: £45,239; Therapy costs: £53,252; Past and future speech and language therapy costs: £23,014; Aids and equipment costs: £150,000; Assistive technology costs: £100,000; Future increased running costs: £100,000; Future loss of earnings: £141,120; Transport costs: £276,988; Accommodation costs: £675,000; Court of Protection costs: £254,690.

Breakdown of Special Damages: Miscellaneous past losses: £283,365.

The costs of care and case management were to be paid through periodical payments.

David Heaton QC instructed by Irwin Mitchell LLP for the claimant. Guy Mansfield QC instructed by Weightmans LLP for the defendant.

This Quantum Report was provided courtesy of Auriana Griffiths of Irwin Mitchell LLP, solicitor for the claimant.