Liability admitted for brain-damaged boy following failure to advise mother on growth scans

Caron Heyes and Louise Astill secured a negotiated admission of liability for a young boy (A) injured during birth because of mismanagement by Epsom & St Helier University Hospital Trust of his mother's antenatal care and homebirth.

The mother was over 35 at the time of her pregnancy. She had a low BMI, which put her at risk of having a small-for-gestational-age baby.

She should have been told about the benefit of growth scans to monitor her baby at the start and during  her pregnancy, and that such scans are more reliable than the traditional method of measuring the distance between the mother's pubic bone and the top of her womb (fundal height). 

Had she been properly advised, the mother would have elected to have these scans, which would have identified that A was in breech position.

A was born at home. That he was breech was not detected until after his bottom was delivered. When the attending midwife realised he was in breech, she did not act decisively or rapidly to expedite his birth. As a result, A's delivery was prolonged and he suffered injury. 

The delivery was incredibly traumatic for his mother, and his father watching events unfold. 

Once A's head and body were finally delivered, he was in a very poor condition and had to be resuscitated. This resuscitation was substandard. Chest compressions were applied prematurely before inflation breaths were given, and further inflation breaths and chest compressions were given using an adult ratio.

This caused an acute profound hypoxic ischaemic insult and A has permanent and significant brain damage in the form of a GMFCS Level IV dyskinetic cerebral palsy.

Fieldfisher, alongside John Whitting KC and Jo Moore of 1 Crown Office Row, represented the family. We pleaded a case on A's behalf that there were multiple failures to provide his mother with adequate information for her to choose serial growth ultrasound scans later in pregnancy, which would have identified his breech position. Had this occurred, A's breech position would either have been resolved earlier or he would have been born in hospital rather than at home.

It was also argued there was a negligent delay in delivery and that substandard resuscitation contributed to his injury. The case was defended and so we issued court proceedings. 

Shortly after serving witness evidence, the defendant invited us to negotiate settlement. We robustly refuted their arguments that even if the mother had been given the opportunity to have growth scans, she would have refused; that the trigger for discussion around scanning was concern about the foetus being at risk of small-for-gestational-age, and therefore they were not liable for the broader consequences of failure to scan.

The defendant did accept that serial growth scans would have identified a breech presentation and that there would not have been a home birth but a caesarean section or vaginal delivery in hospital. Crucially, the defendant also accepted that had there been a caesarean section or vaginal delivery in hospital, the acute period of hypoxic ischaemia and resulting brain damage would have been avoided. 

Now liability is settled, we will value A's claim. Meanwhile, interim payment will fund a case manager to support A's mother with his care and move them to appropriate accommodation. 

A's mother said: 'The circumstances of my son's birth destroyed all of us, primarily my son, of course.  

'It means a great deal to have reached a settlement agreement. The peace of mind knowing that our son's needs will be taken care of long-term and after we die is an immense weight lifted. 

'Nothing can undo what has happened, but to be able to access therapies, equipment and accessible living space that were previously out of scope for us, and to be able to anticipate help with care enables us to envision and create a more positive future for our son and our whole family.

'Fieldfisher has been exceptional from start to finish… they're in a league of their own. I truly feel my son has had the best legal team around him throughout this process. I'm so thankful to have found them. Caron Heyes and her team, and all the experts involved in the case have been top quality, the best of the best, and conducted themselves honourably, respectably and fairly. 

' Alongside their professionalism, they have also been personable, sensitive, and even enjoyable to interact with during the worst and most tragic circumstances of our lives. 
'They have my eternal gratitude for securing some justice for my son.'

Contact us

For further information about Cerebral palsy claims or birth injury claims  please call Caron Heyes on 03304606743 or email caron.heyes@fieldfisher.com or please call Louise Astill on 03304606147 or email Louise.Astill@fieldfisher.com

Alternatively

• You can speak to our medical negligence lawyers on freephone 0800 358 3848
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