AB had an uneventful pregnancy. In April 1997, she attended hospital and was admitted, with a CTG commenced. After a few hours, the CTG started to show signs of the baby being in distress. A doctor was called to review AB, but decided that she should be encouraged to push. The CTG continued to show decelerations, and the midwife eventually requested doctor review to deliver the baby over 24 hours after admission. There was a delay in delivering him even after AB had been reviewed, and it being recognised that the baby was in distress.
BB was eventually born after a 35 hour labour by ventouse, and with the umbilical cord wrapped around his neck. When he was born, he did not cry, was floppy, in poor condition and was blue. He was described as appearing "dazed and shocked". He did not breathe for two minutes and his head was misshapen from the ventouse used to deliver him. He was immediately transferred to the Special Care Baby Unit (SCBU) where he began to suffer seizures and was given medication to control these. He remained in the special care unit for two weeks before being discharged home.
His mother was told that it was difficult to predict what BB's long term prognosis would be. The doctors were very vague as to what had happened, only suggesting a 'birth trauma' at a meeting at the time with the family. No further information was provided to the family, and BB was discharged from follow up.
Growing up, whilst AB thought BB was behind his peers, she put this down to his diagnosis of autism and dyspraxia.
In 2013, BB suffered an epileptic seizure and required hospital admission. An MRI scan was performed, and which identified damage to his brain.
A further MRI scan was taken in 2016, and which confirmed the diagnosis of brain damage. It was at this appointment that BB's treating neurologist explained that he had suffered from hypoxic ischaemic encephalopathy (HIE), caused by a lack of oxygen to the brain. He suggested that it had been caused at the time of BB's birth.
AB contacted solicitors in 2017, shortly before limitation potentially expired. Arti obtained liability and causation reports from experts in practice at the time of BB's birth in 1997, and who supported a case based on the standards in place at the time.
Draft Particulars of Claim were served on the Trust, and whilst some admissions relating to breach of duty were made, causation was denied. Despite this, the Trust made an offer to settle the case on a 70% liability basis. This was accepted by the Claimant in the light of the litigation risks involved in the case. Judgment was entered and the liability compromise approved at a recent Approval Hearing.
The security of the approval will pave the way for the family's lawyer, Arti Shah, to investigate quantum and agree damages to help care for the man who lacks capacity to manage his finances and who will struggle to hold down a job because of his disabilities.
Arti said that she was delighted with the outcome in respect of liability, given how difficult historic cases could be to prove. She said:
"AB had lived for 20 years thinking there was something wrong at the back of her mind, but had never been told anything specific by the hospital, despite there being a written record of the difficulties in birth recorded at the time. Her commitment and dedication to BB and bringing him up with no assistance is commendable. She continues to love and care for him in adulthood but has been extremely worried about his future, and this will provide some sense of security."
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