His mother suffered with a condition called placental abruption (where the placenta starts to come away from the womb and cause bleeding). She experienced abdominal pain and bleeding and DEF showed signs of distress in the womb, but these signs were not properly considered or acted upon. Staff failed to deliver DEF quickly enough and he was starved of oxygen.
As a result of the negligence DEF has cerebral palsy which affects all of his limbs. He has some retained intellectual function, despite his learning difficulties. He has a sound understanding of cause and effect. He can exercise choice by eye-pointing (naturally and via an eye gaze system), expression and hand movements. He enjoys watching television and films. He loves stories. He is a curious and inquisitive boy who likes people. He is limited, however, by the very severe brain damage. He suffers from spasms which cause body and legs to extend involuntarily. He can see and hear but these abilities are impaired. He is fed via a tube in his abdomen. He is doubly incontinent. He experiences persistent sleep difficulties. He has epilepsy.
He would have been a completely normal little boy had he and his mother received the care to which they were entitled.
His mother and father both had to give up work because of the demands imposed by caring for DEF. The family was left without earned income, as a result of the negligence. It has affected the whole family.
Following DEF's discharge from hospital in 2009 he and his family lived in entirely unsuitable local authority housing. The home was in an area frequented by groups of youths who would gather outside the building, and who, on occasion, have shouted at DEF when they saw him. There had also been a number of stabbings in the area. An interim payment of damages was therefore used to move the family to more suitable, short-term rented accommodation in a lovely area with green space and close to a good special needs school, capable of meeting DEF's complex needs where DEF is now enrolled.
DEF and his mother were represented by Samantha Critchley, a specialist clinical negligence lawyer at Fieldfisher. Samantha was initially approached by DEF's mother when he was a few weeks old. The hospital had by this time had a number of distressing discussions with the parents about whether to withdraw life-saving treatment in the event of a significant deterioration, given the severity of his condition. This was against the parent's wishes. Fieldfisher therefore prepared a letter for the parents to give to the hospital requesting confirmation that DEF would receive all appropriate life prolonging treatment and that to withdraw treatment would not be in his best interests and would require an application to the High Court. Legal Aid was then secured to investigate a legal claim for compensation.
Initially, despite accepting an unnecessary delay in delivering DEF the hospital tried to suggest that DEF would have had some brain damage in any event. It was only when court proceedings were served that a full admission was made, allowing judgement to be entered on DEF's behalf. Judgement was obtained in October 2012 at the High Court. At that time it was too early to reach a safe view about DEF's prognosis and the medical experts felt it best to wait until he was at least age 5 to try to quantify the claim. A trial date was set for 15 June 2015 but a settlement value was agreed between the parties on 22 May 2015, subject to court approval.
The Approval Hearing took place on 15 June 2015 at 10.30am before Mrs Justice Nicola Davies at the High Court. The judge was asked to approve a settlement which includes a lump sum of £3 million. The lump sum will cover the cost of a suitably adapted home and will pay for the all of the ongoing therapies and equipment that that DEF will need. The agreed settlement also includes annual six-figure payments for the rest of DEF's life varying in amount from £221,463 to £304,963. DEF's parents have provided him with round-the-clock care since he was born and the annual payments will be used to employ a team of carers who can provide much needed respite and ongoing care. The annual payment will also cover the cost of a case manager to help support the family in managing the care package and to transition them into their permanent adapted home, once purchased. Over the course of his lifetime (assuming he lives to at least 30-31, as envisaged by the Claimant's medical expert) the value of the award would be in the region of £9.5million.
Samantha Critchley adds: "I am pleased that this family can finally put the litigation behind them and focus on the future, confident that there will be funding available to provide for their son, for the rest of his life. It has been a privilege for me to witness the commitment and perseverance of DEF's parents to get the best for their son. They have given such devoted care, for the past six years. All of my client's injuries would have been avoided had there been better midwifery and obstetric care. The Hospital did not allocate a one-to-one midwife to DEF's mother and the Hospital identified, in their own investigation, that there was a need for an escalation policy for when staffing was inadequate for the level of need on the labour ward. I hope and the family hopes that important lessons have been learned from this case. I also echo the sentiments expressed by Mrs Justice Davies at the hearing that the award is not just about providing money for care and accommodation but about giving them the chance to live as a family again."