Clin Risk 2008;14:246-250
doi:10.1258/cr.2008.080085
© 2008 Royal Society of Medicine Press
AvMA Medical & Legal Journal |
Case: Oxygen deprivation following uterine rupture at birth causing cerebral palsy
J v Birmingham Women's Hospital NHS Trust
Rankeshwar Batta, Claimant's Solicitor
Anthony Collins LLP, Birmingham
Julian Matthews, Claimant's Counsel
7 Bedford Row, London
Tim Hodgetts, Defendant's Solicitor
Bevan Brittan LLP, Birmingham
Neil Block, QC, Defendant's Counsel
39 Essex Street Chambers, London
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Introduction
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J was born at Birmingham Women's Hospital, Birmingham on 10
January 2002. J was severely brain-damaged as a result of oxygen
deprivation during the last 20 minutes of her mother's labour.
J's mother had had a previous Caesarean section. Her labour
was artificially induced using Prostin. This resulted in over-stimulation
of the uterus, which then ruptured, leading to anoxia until
J could be delivered by Caesarean section. As a consequence
of her injury, J had cerebral palsy affecting all four limbs,
a marked development of delay and microcephaly. She will never
walk, and will be dependent upon others for 24-hour care throughout
her life. She has a significantly reduced life expectancy.
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Factual background
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J's mother was aged 23 years at the time of J's birth. She had
two previous children: one who was delivered normally on 25
January 1998 and another who was born by way of a full-term
emergency Caesarean section because of an unstable lie on 25
February 2000. The child born on 25 February 2000 suffers from
Mosaic Down syndrome, which means that her care needs are not
greatly different (at least at the time when we conducted the
case) from those of a normal child.
J's mother was under the care of the Birmingham Women's Hospital and in particular a consultant obstetrician whom she liked and trusted. He saw J's mother twice during the pregnancy. On both occasions he raised the issue of mode of delivery, given that there had been a Caesarean section less than two years previously. The key concern that needed discussing was whether she should try for a normal delivery (a trial of the uterine scar) or whether she should have an elective Caesarean section. It was common ground between the parties that Mr G explained the potential risk of rupture of the scar in the uterus from the previous Caesarean section, weighed against the benefits of avoiding a Caesarean section.
J's mother and father clearly recall that her consultant said that if labour did not occur spontaneously, there would probably be a Caesarean section rather than an induction of labour (IOL), but his view was that should there be agreement to a trial of the scar this would be on the assumption that she went into spontaneous labour and this was plain from a letter that he sent to the family's GP following J's birth. The impression given to J's parents was that there were increased risks of uterine rupture when labour was induced. After this discussion, J's parents agreed that they would attempt a vaginal delivery, assuming a spontaneous delivery.
J's mother was seen again by her consultant at 39 weeks on 27 December 2001. At that time everything was well with the pregnancy and there was a further discussion about the issue of mode of delivery. J's mother was clear that she was advised should a normal labour not begin within the next two weeks, then a Caesarean section would be a safer option, i.e. that he would not recommend inducing labour in preference to a Caesarean section (this was not accepted by the Defendants in subsequent proceedings). An appointment was made for her consultant to see J's mother again on the morning of 10 January 2002, assuming that she had not gone into labour before then.
On the evening of 8 January 2002, J's mother began to feel contractions. She was admitted at 02:30 the next morning, 9 January. It was felt that labour was not established and the tightening diminished over the course of the morning.
It was from this point that J's mother informed us that matters did not go to her understanding of what was planned and indeed became the key dispute between the parties in the case.
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Factual dispute
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A registrar had a conversation with J's mother about the possibility
of inducing labour. J's mother said that she was surprised about
this because of her previous discussions with Mr G. The registrar
felt that there was a high probability of spontaneous labour
and J's mother remained in hospital. However, contractions did
not resume and J's mother was ultimately discharged and told
that she must return to the ward in the morning. The registrar
did not see J's mother prior to discharge but apparently she
gave the midwifery staff instructions to book J's mother for
a Prostin IOL on the following morning, which they did.
It is worthy to note that the Defendant's obstetric expert accepted that the decision for induction was taken by the registrar on 9 January 2002 and that this represented a change of advice from that which had been given previously. However, the Claimant's contention was that J's mother was not a party to that decision. At its highest, the Defendant's obstetric expert said that the decision ‘was evidently accepted ... because she went home with a plan to return the following morning’. J's mother denies that this was so. She said that she understood the instruction to come back to the ward as being no more than that she would be reviewed in the morning. She knew that she was due to see her consultant in clinic that morning, so she expected him to be around. She anticipated that it was most likely that she would be proceeding to a Caesarean section given that she was now post-term and the contents of her previous conversations with her consultant.
When J's mother arrived on the ward at 09:30 on the morning of 10 January 2002, she was accordingly surprised when steps were being taken immediately to commence induction using Prostin. The staff, however, had a different perspective. They knew that J's mother had been specifically booked in for IOL. In her statement (disclosed at the appropriate juncture in proceedings), the admitting midwife said that as far as she was aware, ‘the induction of labour with the use of Prostin had previously been discussed’. However, no such discussion had in fact ever taken place.
The key issue in the case concerns what happens next:
- At 10:05, the on-call obstetric registrar was called to discuss J's mother's concerns about induction with her. The on-call registrar said that she came straight away and her perception was no doubt that as J's mother had been specifically booked in for induction of labour, the primary purpose of her attendance was to provide re-assurance, rather than to re-formulate the management plan;
- The decision to proceed with induction was made at 10:15 and the induction with Prostin commenced at 10:20;
- There was then a fundamental dispute over what was said during the 10-minute discussion. The obstetric registrar, supported by the admitting midwife said that she gave three options to J's mother being:
- (i) to await spontaneous labour;
- (ii) to opt for an elected Caesarean section;
- (iii) to undergo induction of labour as recommended by the registrar on 9 January;
- The Defendants also contended that J's mother was counselled about the relevant risks and benefits of all three options and J's mother then elected to proceed with the induction;
- J's mother and father always clearly gave instructions, right from the very outset that the option of elective Caesarean section was never given to them on this date. They say that the on-call obstetric registrar told them that there was nothing untoward about being induced and that the risks were low, particularly as they would be careful to put continuous monitoring in place once the contractions started. She told them that the options were that J's mother could be induced on that day or could go home and wait to see if she went into spontaneous labour. J's mother said that she was somewhat short with her when she tried to explain about the previous consultation she had had with her consultant;
- The clinical note records:
D + 6. 2/7 hx irregular tightenings. Exhausted. Was admitted for Prostin IOL. Concerned about surgery and what best to do. Options: (1) await spontaneous labour and reconsider IOL at D + 14; (2) Prostin IOL today fetal monitoring continuously once contractions commence. Exhausted and wishes IOL. 
3 mg Prostin and mobilize until contracting.
Of key importance to the Claimant's case was the fact that there was no reference in the note to the possibility of a Caesarean section, save possibly for the reference to ‘concern about surgery’.
There were other peripheral disputes of fact in relation to
what happened on the morning of 10 January 2002:
- J's mother said that her clinical notes were not present at the time of the advice being given by the on-call obstetric registrar. This was disputed;
- She also said that she asked to see her consultant but this request was refused. This is also denied (it is worthy of note that in his statement, disclosed at a later date, the consultant did state however, that he did not know that J's mother was in hospital and would have come to see her, had he been asked);
- There was also a dispute about whether J's mother was anxious to avoid Caesarean section and whether she had reason such as a need to get back to her children, for wanting to avoid a longer hospital stay. J's mother denied that she had any such concerns as the family had in fact anticipated that she would be having a Caesarean section and care arrangements were already in place.
The case, as set out below was actually compromised
by way of a round table discussion meeting towards the latter
part of the proceedings. Had the matter proceeded to trial,
the Court would have had to resolve a direct conflict of evidence
between the on-call registrar (now a consultant) and the admitting
midwife against J's parents over what was said. While in general
terms one would expect the majority of such disputes to be resolved
in favour of the medical professionals, in this case, we advised
the Claimant that she had good prospects of success on the basis
of:
- Had the on-call obstetric registrar given the advice that she claimed she gave, namely of setting out the three options clearly, it was extraordinary that this was not reflected in the note that was made, which plainly only refers to two options;
- Long before they considered taking legal advice, J's parents were most concerned to raise a question with hospital staff about why they had not been offered a Caesarean section. The terms in which this question was raised strongly suggested a genuine failure to understand why this had not been discussed with them. Questions in the form raised are unlikely to have been raised at meetings with clinicians by way of an initial NHS complaint had there been a full and proper discussion about the option of Caesarean section with J's parents and they had understood that this was an available option.
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Liability
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The Defence argued that the simple issue was whether the on-call
obstetric registrar had referred to the option of Caesarean
section on the morning of 10 January 2002. If that was the only
issue, then although there were strong arguments supporting
J's parents' denial that a Caesarean section was mentioned,
there was plainly a substantial risk that their account would
not be accepted. The case for the Claimant turned, however,
not only upon what happened on the morning of 10 January 2002
but also upon the circumstances in which the booking had been
made on the evening of 9 January 2002, as this created a situation
where a decision was required from J within a very few minutes,
without the considered counselling in advance that she was entitled
to receive and that there was ample time to permit. On this
basis, we argued that there were clear failures which had led
to the position where J's mother felt that she had no option
but to proceed with the induction. Approaching the case in this
way meant that a more robust view of the prospects of success
was appropriate.
Obstetric experts were instructed by the parties and they had a joint meeting. It was agreed inter alia:
- That the on-call obstetric registrar was obliged to make a note about the management options discussed and had not recorded the option of proceeding to elective Caesarean section;
- That it would have been inappropriate to proceed with induction of labour without following appropriate counselling which included the option of Caesarean section and the on-call obstetric registrar was obliged to ensure that J's mother knew about the option of elective Caesarean section;
- If full counselling about all three options had been given by the on-call obstetric registrar on 10 January 2002 and the option of elective Caesarean section had been given but declined by J's mother or she had otherwise made it plain that she did not wish to consider it, then ‘reasonable counselling was given’ and the care was of a reasonable standard, whereas if it was not offered, there was a failure by the staff to offer a reasonable standard of care.
There were plainly
risks in terms of the scope for a variety of factual findings
to be made after evidence had been heard and we advised the
Claimant that if the Defendants did wish to negotiate, it was
likely that some form of discount would have to be allowed to
reflect the risks of an adverse finding.
Causation was less contentious and while expert evidence was obtained on the point, the parties broadly agreed the issue.
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Quantum
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Quantum of J's claim was substantially more straightforward.
There was a broad measure of agreement in respect of many areas
of the claim, particularly in relation to the potential costs
of future care. There had, however, been a considerable difference
of opinion on the issue of J's projected life-expectancy. However,
J had exceeded expectations and predictions concerning her abilities,
as she had done throughout her life, very largely due to the
dedicated care and devotion of her parents and grandparents,
which meant that the evidence on this issue ultimately was broadly
agreed.
Following the finalization of all meetings of liability and quantum experts, a round table discussion meeting took place between the parties on 8 January 2008 (the parties had engaged in a preliminary round table meeting after the filing of the Defence with a view to narrowing down the issues. At this juncture in the proceedings, there was insufficient information on quantum available to enable an overall view of any terms of settlement to be taken).
Negotiations between the parties were measured and sensible. Bearing in mind that J's development had exceeded predictions, there was concern that she could well exceed the life-expectancy projections, such that a more appropriate solution would be one where the cost of her future care would be substantially provided for by a Periodical Payments Order. The Defence agreed with this approach and were flexible in relation to seeking to achieve a fair mix of periodical payment and a lump sum provision.
The Claimant's valuation of the claim on a lump sum basis was just over £5,000,000. The Defence valuation was just over £3,000,000 based on their previous life-expectancy evidence. At the joint meeting of life-expectancy experts, the Defendant's expert increased his life-expectancy estimation so the Defendant's figure would increase to approximately £4,000,000. A reasonable overall valuation of the claim was possible, based on the following components:
- general damages £200,000 plus interest;
- commercial valuation of past care to July 2007 was agreed at just over £103,000 plus interest;
- subject to the appropriate reduction for voluntary care being adjusted, the cost of future care was agreed on a stepped basis to age 7, 11, 19 and post-19 onwards. The future costs of case management were not agreed and a sensible medium figure was canvassed. The overall total for future care and case management was therefore £2,620,000;
- there was little dispute over J's projected earnings loss which was canvassed at £140,000;
- there was disagreement over the proper assessment of the additional transport claim. Compromised mid-line figure within the region of £90,000;
- the claims for therapies were broadly agreed at £25,000 occupational therapy, £35,000 physiotherapy, £24,000 speech and language therapy, and £35,000 music therapy;
- following adjustment to multipliers and a measure of agreement between the parties' experts, insofar as aids and equipment was concerned, the parties differences could be reduced to some extent. Mid-point figures were canvassed and the same applied to additional expenses;
- there was limited dispute in relation to the potential costs of accommodation, although certain points of principle were raised (e.g. in relation to the need for hydrotherapy facilities). The Defendants contended for a figure just over £500,000 against the Claimant's £677,500. A realistic pre-estimate of the actual value of the claim would be around £600,000;
- the allowance for assistive technology would be in the region of £75,000;
- there would plainly be costs associated with the administration of the award as J was a patient. These were essentially agreed at £115,000.
In summary, the
Claimant took the view that overall realistic valuation would
be somewhere in the region of £4,400,000. Applying an
approximate discount of say 25–30% to reflect the risks
on liability as set out above, provided an overall settlement
target of £3,000,000 to £3,500,000.
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J's needs
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The primary consideration for J's parents was that they should
be in a position to ensure that she had appropriate accommodation
and that she should be able to purchase the care required by
her for as long as she lived. In particular, they had researched
the local property market and determined that they required
sufficient funds to be able to purchase and adapt a property,
to include a suitable hydrotherapy provision within the home
and to equip the same so that essential therapy could be provided.
The estimated cost would be £800,000. There were also
anticipated costs with respect to equipment and motor vehicles
and funds would also be required to ensure that the additional
therapeutic input that J required over her childhood could be
purchased. Finally, a contingency fund would be required. Based
upon this assessment, it was determined that any award would
need to include a lump sum element of at least £1,200,000.
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The offer and terms of settlement proposed
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The initial offer from the Defendants did not meet the above
objectives. A counter-proposal was made on behalf of the Claimant
which did. After further discussion and negotiation at the round
table discussion meeting, the Defence indicated that, taking
into consideration J's parents' concerns, they were prepared
to offer:
- a lump sum payment of £1,200,000;
- periodical payments, commencing immediately following approval, of £35,000 per annum to age 11 years, £65,000 to age 19 years and £100,000 for life thereafter indexed to the index approved in the case of Thompstone;
- no deduction with respect to state benefits: no reverse indemnity;
- deduction of the sum due under the compensation recovery unit certificate of £18,753.30.
The offer plainly met J's parents' primary objectives. It
would result in an immediate payment in excess of £1,200,000,
over 70% of the costs of the professional care to age 11 years,
68% of the costs of professional care to age 19 years and 72%
of the cost of professional care and case management thereafter.
Looked at in terms of formal valuation, the offer when capitalized in accordance with the Claimant's life-expectancy evidence equated to a lump sum of just over £3,000,000. Given the severity of J's disability, the value of her entitlement to direct payments is very unlikely to be less than an average of £2500. In adulthood, the direct payments are in fact likely to be substantially higher. It was therefore felt that the capitalized value of the offer would fall between the target bracket set out above.
The eagerly awaited Court of Appeal decision of Thompstone et al. was received very shortly after the settlement between the parties was reached which would further benefit the Claimant in that indexation would not necessarily be linked to retail prices index. This is of course now the case as recently determined by the House of Lords.
The settlement and was approved by Birmingham High Court on 18 February 2008.
General damages: £200,000; February 2008; Total Award: Capitalized in excess of £4.2 million Over-stimulation of uterus leading to rupture, infant suffers from cerebral palsy and microcephaly, reduced life expectancy, periodical payments no reverse indemnity.
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Introduction
Factual background
