Landmark case

10/06/2010

By Graham Bell, Partner in Clinical Negligence.

TS&P recovered over £6 million for a brain damaged child as well as damages for both her parents.

In April 2009 the High Court approved a settlement in the widely publicised case of Matraves v East & North Hertfordshire NHS Trust. Eleanor was catastrophically damaged as a result of the mismanagement of her birth. Over many hours attending, doctors and midwifes failed to appreciate that the CTG trace indicated that the baby was in distress.

She was born clinically dead - appearing grey, limp and lifeless - and underwent two hours of aggressive resuscitation.

Following the birth, her parents were not told whether they had a son or a daughter, nor whether or not their baby was alive. As none of the staff wanted to approach them, her father was left to assist her mother following the birth. The midwives later admitted that they had hidden in the nurses bay as they could not face the young couple. After two and a half hours, her parents were advised that they had a daughter, but that she was in the Special Care Baby Unit as she was "poorly, like she had a very bad headache."

As a result of the hospital's negligence, Eleanor developed athetoid cerebral palsy, affecting all four limbs, together with other special needs which require ongoing 24-hour a day care. Today, in spite of her injuries, she is a very alert little girl who has retained significant cognitive function.

Our paediatric neurology expert reported that despite suffering over two hours of inadequate oxygenation she sustained irreversible damage only in the last 30 minutes before she was born. Had the treating staff recognised the signs of distress and acted accordingly, the damage would have been avoided.

From the outset the litigation proved difficult. The defendant bizarrely denied that the letter of claim was valid. It later became apparent that its solicitors did not fully understand the complex medical issues involved and failed to understand the mechanics of the hypoxic injury and the nature of the injuries themselves.

We therefore issued court proceedings and made an application for judgment. At that point we suspect that the case was reviewed by someone with more experience as liability was then admitted.

The family lived in appalling circumstances and were not receiving remotely adequate assistance from either the NHS or local authority. However the defendant refused to make an interim payment either to assist the family or with respect to the financial losses they had incurred during the six years since Eleanor's birth. We therefore applied to the court for an order that an interim payment be made. The defendant contested the application but the court found in the claimant's favour and ordered that £750,000 be paid without delay.

The case settled one month before trial. The settlement included a lump sum of £2.4 million and stepped periodical payments for life. The value of the settlement was equivalent to £6.3 million as a lump sum.

Compensation for parents

As well as recovering compensation for Eleanor, we also brought proceedings on behalf of both of her parents on the basis that they suffered injury as secondary victims. As a result of the way they had been treated immediately after the birth, Eleanor's mother suffered an adjustment disorder with symptoms of depression and anxiety, whilst her father suffered depression with anxiety and panic attacks. These claims were strongly contested, not least because Eleanor's father was not a patient of the hospital. However, the success of the parents' claim is perhaps indicative of just how appallingly they had been treated.

The claim is also significant as it is one of the first cases to reflect the Government's pension reforms, most notably its intention to introduce compulsory employer contributions to pensions. The settlement took the reforms into account, both in respect of pension losses and the cost of future care.

Cases involving awards for future care will now take this into account.

Comment

The mismanagement of the birth was amongst the worst we have come across. The conduct of hospital staff in its immediate aftermath was so unprofessional and insensitive that both parents suffered injury to their mental health. It is very unusual indeed that family members receive compensation for this type of injury. What was particularly shocking was the apparent lack of expertise of solicitors instructed to represent the trust and the belated admission of liability and obstructive attitude in relation to the request for an interim payment. Eleanor's parents were so angered by these injustices that they insisted that their story be publicised in an attempt to ensure that other patients did not have to undergo a similar experience.