Our client, Mr Y, was awarded £1.6 million (plus annual payments of over £100k for life) after he suffered chronic partial hypoxic ischaemia when doctors failed to diagnose severe intrauterine growth retardation, most likely caused by an insufficient placenta, during the last weeks of his mother’s pregnancy.
Mr Y, who is now 24 years old, suffers from severe cerebral palsy, learning difficulties and epilepsy as a result of his brain injury. He is very badly disabled and requires 24 hours care. He lacks the capacity to manage his affairs and will never be able to live independently.
It was thought that the chronic partial hypoxic ischaemia injury which caused his disabilities took place in the last week of his mother’s pregnancy, and most likely during the birth itself.
Patricia Fearnley, specialist medical negligence lawyer, acted for Mr Y. She argued that the clinicians ought to have diagnosed the intrauterine growth retardation (IUGR) via an ultrasound scan which took place 2 weeks prior to Mr Y’s birth. She argued that the ultrasound was negligently performed causing the key measurement, which would have revealed the IUGR, to be grossly overstated.
She argued that had the scan been completed correctly the IUGR would have been diagnosed and Mr Y would have been delivered 11 days earlier than his actual birth date, at the latest, avoiding the brain injury from occurring and his associated disabilities.
She alternatively argued that clinicians should have undertaken an emergency c-section by no later than 14:15 hours on the day of his actual birth; in fact he was not delivered until 17:25 hours. She argued that had the delivery taken place before 14:15 all damage could again have been avoided.
Liability was vigorously argued by the defendants who contended that there were no grounds for suspecting IUGR at the time of the ultrasound scan 2 weeks before birth. They argued that those results combined with reported good liquor volumes contraindicated any suspicion of IUGR. They argued that the inaccuracy of the ultrasound was caused by the “inherent fallibility of the technology”.
They admitted the failure to deliver Mr Y before 14:30 hours was a breach of duty. However, they argued that all damage had been sustained before admission to the labour ward at 13:30. They argued therefore that expediting the labour would have made no difference to Mr Y’s outcome.
Both the Mr Y and the defendant trust obtained reports from ultrasonography experts. Following a joint discussion between the two experts a joint statement was produced in which a number of concessions were made, placing Mr Y in a very strong position.
Unfortunately, prior to trial, the defendant’s argued that their expert was unwell and unfit to give evidence at trial. They made an application to rely on a new expert, which was contended by Patricia Fearnley on behalf of Mr Y, as there were strong concerns that the concessions which had been made by their previous expert, and which favoured Mr Y’s case, would be lost as a result. Unfortunately the defendant’s were granted permission to use a new expert.
The new expert’s report was of the opinion that the measurement of the ultrasound scan was within accepted general ultrasound practice. Mr Y’s expert considered that whilst he disagreed with the defendant expert’s conclusions, he had made an arguable case.
The defendant’s out-of-court offer was accepted including a lump sum of £1,625,000, annual payments of £105,000 until his 40th birthday, followed by annual payments of £118,880 for the remainder of his life. This was to compensate Mr Y for his pain and suffering and to pay for his future care needs.
Patricia Fearnley specialises in birth injury cases. If you would like to ask Patricia a question about a potential case, or if you have a general query about any clinical negligence, contact Patricia at Thomson Snell & Passmore LP solicitors on 01892 701319 in confidence.