The Plaintiff in this case was a fifteen year old boy who alleged that he suffered a brain injury at the time of his birth due to the Defendant’s negligence in failing to deliver him at an earlier stage. Liability was as in issue throughout the case and was not admitted. It was the Plaintiff’s case that he suffered from hypoxia during the labour and delivery. His legal team alleged that his injuries resulted from misuse of oxytocin (a drug used to induce or accelerate labour) and the failure of midwifery and obstetric staff at the Defendant’s hospital to recognise signs of foetal distress demonstrated on the CTG trace (which monitors the baby’s heart rate and the mother’s uterine contractions).  The Plaintiff was born in poor condition and suffered a neonatal encephalopathy. The Plaintiff alleged that had those caring for the Plaintiff’s mother reacted to these signs of distress in a timely and appropriate manner, the Plaintiff would have been delivered more than an hour and 20 minutes earlier and would have avoided a brain injury.

Both negligence and causation were disputed in the case by the Defendant, although there was a limited admission of breach of duty made shortly before the trial. Whereas it was the view of the Plaintiff’s experts that the Plaintiff sustained his injuries due to hypoxic-ischaemia (deprivation of oxygenated blood) during labour and delivery, the Defendant in its Defence denied liability and that the Plaintiff had suffered personal injury, loss or damage. Furthermore, in the Defence the Defendant stated that any personal injuries which the Plaintiff may have suffered, were not caused by an intrapartum asphyxia insult.

Causation in the case complex. Notably, the Defendant argued that there was no injury which would be consistent with the Plaintiff having suffered an injury caused by Hypoxia Ischemia shown on the Plaintiff’s brain scan. By contrast, two of the Plaintiff’s experts (a Paediatric Neurologist and a Neuroradiologist) were confident that indeed there was a subtle but definite abnormality on the Plaintiff’s MRI brain scan, which was consistent with an injury caused by an Hypoxic Ischemic insult, and which would explain the Plaintiff’s current difficulties. A significant amount of literature was produced by the Plaintiff’s experts on the issues of brain imaging following Hypoxic-Ischemia and the range of outcomes following a mild to moderate hypoxic ischemic insult at birth.

As regards his injuries, the Plaintiff in this case had very slight motor problems which had been more significant in the neonatal period, but which had lessened considerably over time. Indeed it was not universally accepted that he in fact had a diagnosis of cerebral palsy. He had swallowing difficulties and suffered from moderate to severe hearing loss.  He had cognitive difficulties, and assessment by an expert in neuropsychology placed him very low on the scale of cognitive abilities compared to his peers. The Plaintiff was in mainstream school, although he struggled with various subjects.

As noted, a full Defence was delivered in the matter and it was specially fixed for trial on 21st November 2017. Prior to the trial date, an unsuccessful mediation took place in late October.  The Defendants then indicated that they would like to have a genetic testing carried out on the Plaintiff with a view to establishing whether the difficulties from which he suffered had a genetic cause, rather than being due to Hypoxic -Ischaemic injury suffered at the time of his birth. This was the first time genetic testing had been sought by the Defendant in the case, notwithstanding that proceedings had been issued two years previously. Furthermore, although genetic and chromosomal testing is often carried out in the neonatal period where a child has difficulties following his or her birth and the cause is not known, no such testing was carried out on the Plaintiff in the neonatal period and same was suggested for the first time a few weeks before the trial.

The Plaintiff’s claim was comprised mainly of a claim for care with lesser amounts sought in the areas of aids and appliances, therapy and assistive technology. The Plaintiff did not require specially adapted accommodation as he was mobile, if somewhat clumsy, but the claim did include an additional cost for accommodation in the future, in circumstances where the plaintiff was likely to have to extend any accommodation he would have, in order to have a carer or buddy residing with him to assist him where necessary.

Ultimately, an offer of damages in the amount of €5million plus legal costs, without admission of liability, was made.  The settlement was ruled before Mr Justice Cross on 1st November 2017. The Court was advised in detail of the events around the Plaintiff’s delivery and the dispute on both sides in relation to the brain imaging and also the Defendant’s request for genetic testing made for the first time a few weeks before the trial.  Mr Justice Cross was happy to rule the case for the amount offered in the circumstances where the plaintiff was as highly functioning as he was in this case.

If you require further information please contact Joice Carthy, Partner in our Medical Negligence Department.

08 March 2018

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