It is likely that the treating team of midwives and nurses overestimated Eli's condition during this immediate neo-natal period and assumed he was more robust than he was. With competent care, Eli's deteriorating condition would have been recognised sooner. A paediatrician should have been present at his birth or at least asked to examine baby Eli urgently, or the midwife should have remained with him and his mother for longer immediately after the birth to observe his condition.
Had either of these scenarios had occurred, Eli's poor condition would have been noticed and his airways would have been cleared and he would have been properly resuscitated. This would have avoided respiratory arrest and his permanent brain damage.
Eli is now sevenyears-old and requires around-the-clock care from both his parents. While his mother has been his primary carer, his father had to give up his dream of training to be a rabbi and instead now does several jobs to pay for Eli's needs. Eli is now too big for his parents to carry upstairs, too big to fit in the bath and they find it difficult manoeuvring his wheelchair around their current property. Eli now requires a stair lift, a larger bathroom and property, as well as therapies to assist him with his development, which his family simply cannot afford. On Eli's behalf, Jonathan Zimmern brought a claim against the Royal Free London Hospital. He instructed a team of experts including a midwife, obstetrician, neonatologist, paediatric neurologist and neurologist and argued that the care given to Eli and his mother fell below an acceptable standard. In particular, he argued that the contemporaneous notes of the midwives were inaccurate and were inconsistent with the fact that that the CTG traces immediately before birth were concerning, that his umbilical cord was wrapped tightly around his neck, that they took Eli's blood gases after his birth and that they listened to his heart rate for 3 minutes. Failure to monitor his condition and remain with him in the immediate neo-natal period resulted in the permanent brain damage that Eli has suffered.
The defendant argued that there was nothing concerning during the labour and in particular the CTG trace was not concerning, that it was not necessary to call an obstetrician or paediatrician, the contemporaneous notes were accurate, there was nothing to suggest that Eli was born in a poorer condition than the records indicated, and there was no need for the midwife to stay longer than she in fact did.
As the matter progressed towards trial, there was a very significant risk to Eli that ultimately, a court would have preferred the evidence of the midwives and the account described in the contemporaneous records, over that given by his parents and the circumstantial issues that Jonathan was arguing.
The Trust denied all liability and the case proceeded to exchange of witness statements and expert evidence. However, at a settlement meeting, Jonathan successfully negotiated a settlement on the basis of 65% liability. Since then, the defendant has made a £500,000 interim payment which has already transformed the lives of Eli and his family who can now afford a suitable care package for him. Jonathan has also been able to put the family in touch with a case manager who will source this appropriate care for Eli. Over the coming months, Jonathan and his team will quantify the rest of Eli's claim to ensure that his needs are met, as best as possible, in the future.
Following the case, Eli's parents said:"We are so full of gratitude for all your efforts on our behalf and for pushing ahead even when things seemed to be stacking up against us…Having a disabled child is a constant worry and stress. How will this affect our family? Are we going to be able to look after him? What will we do as he grows bigger and we cant manage alone?
"By Eli having this settlement a lot of those worries have fallen away. Yes, Eli will always be disabled and always need constant care that we can never correct, but we will be able to provide everything he needs to give him the very best opportunities available, the worry for the future has also significantly dissipated as we know he will always be looked after.
"For this as parents, we will be forever grateful to you."
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