Baby DC was born at 19.04.on 19th August 2005. His condition was good at birth (Apgar scores were 2 at one minute, 7 at five minutes and 9 at ten minutes). Shortly after birth he became ill and required care in SCBU. He is now six years old and severely disabled with quadriplegic cerebral palsy, epilepsy, severe visual problems, severe learning difficulties and behavioural problems.
An MRI scan shortly after birth showed and the experts on both sides agreed, that DC’s disability was caused by a prolonged partial hypoxic ischaemic insult (PPHII) to his brain in the late stage of pregnancy or labour, within 72 hours of delivery and probably within the last 48 hours before delivery.
The case put on DC’s behalf was that he was unharmed when his mother was admitted to hospital and the PPHII probably happened during labour. However, the damaging insult could not have been at the end of labour (being relieved by delivery as is usually the case) because DC’s Apgar scores at birth were far too good to postulate that prolonged partial hypoxia (PPH) had been present just before birth. Further he was not acidotic at birth which precludes a PPH relieved by delivery. Thus a damaging period of hypoxia during labour, followed by resuscitation in utero was postulated. It was DC’s case that this was caused by the injudicious use of syntocinon (a drug used to enhance labour) which lead to hyperstimulation of the uterine contractions, depriving DC of sufficient oxygen. It was alleged that the fetal heart trace on the CTG showed abnormalities during labour indicating fetal distress, which went unheeded but which should have led to a Caesarean section delivery being performed.
The Defence was that the fetal heart rate was adequately monitored and the syntocinon was properly titrated against it. Most importantly the Defendant alleged that the Claimant did not sustain his brain injury during labour but more probably he sustained damage before labour commenced, about which the Defendant could have done nothing.
The 48 hours before birth during which the experts agreed the PPHII occurred encompassed the labour and a period of 24 hours before DC’s mother was admitted to hospital. The difficulty facing DC’s case was that the lack of acidosis at birth meant that there had to have been a period of resuscitation after the HII, in utero. All that is known scientifically about the return of the blood pH to normal after a period of HII and concomitant acidosis, is gained from animal experiments, which indicate that it takes many hours for the pH to return to normal.
In the joint meeting the obstetrician acting for DC expressed the view that the hyperstimulation, due to syntocinon continued right up to delivery. Thus the Claimant’s case relied upon a period of HII due to hyperstimulation followed by a period of recovery and resuscitation in utero, while the hyperstimulation continued. The difficulty the Defendant faced was that it could put forward no cause for the damage, whereas the Claimant put forward a positive case that the hyperstimulation was evidenced by signs of fetal distress on the CTG during labour, albeit that the Defendant disputed that the signs were of such a severity as to indicate brain damage. It is however recognised that in some cases of cerebral palsy no cause is ever discovered.
Leading counsel took the view that the difficulty in explaining how there could have been resuscitation while the cause of the damage persisted placed the prospects of success at no more than about 50%.
As there had been no investigation of quantum it was necessary to draw on the experience of solicitors and counsel in other similar cases broadly to evaluate the case. There was also no evidence as to life expectancy, save that it would clearly be reduced, as the paediatric neurologist who examined DC for the purposes of the condition and prognosis report to be served with the Particulars of Claim, advised that DC was too young properly to assess his life expectancy. The impact of the uncertainty as to life expectancy was largely mitigated by the agreement to periodical payments. Given the level of severity of DC’s problems it was thought that he came within a group of children whose life expectancy is about 50 years (Strauss and Shavelle data).
The Claim was finally settled for a lump sum payment of £1,000,000.00 together with periodical payments in respect of future care and case management of £50,000 pa until the age of 11 years rising to £80,000 until he is 19 years and thereafter £140,000 pa for the rest of his life, index linked from 15th December 2011 (ASHE 6115).