£9 million birth injury award arising out of failure to respond to CTG monitoring after reduced fetal movements

We recently concluded a birth injury case following a very complex investigation considering care dating back several decades.

Failures in care

Our client’s mother was seen at a hospital appointment at 37 weeks of pregnancy, where she stated that she could not feel the baby moving very well. Electronic monitoring of the baby’s heartbeat was undertaken by cardiotocograph (CTG). There was nothing in the records to show that this had been reviewed before she was sent home and told to attend another appointment in two weeks’ time.

Eleven days later, she went into labour and presented at the hospital with concerns about a lack of movement from the baby since the previous evening. CTG monitoring showed that the baby was in distress and an emergency caesarean section was undertaken, with the child being born in a poor condition. The baby, our client, went on to develop spastic diplegic cerebral palsy and epilepsy.

We investigated the care provided at the 37-week appointment and found that the CTG was not reassuring, and that our client’s mother should not have been sent home without this being repeated. Alongside this, we considered the underlying cause of the baby’s condition and found that they were likely suffering from fetal growth restriction, arising from placental dysfunction, because of their presentation with:

• slowing growth;
• thick meconium on delivery suggesting oligohydramnios;
• asymmetrical growth at delivery, with their head proportionately larger than their body; and
• evidence of other organ involvement in the days following the birth.

An interesting point in this case was that the baby did not present as small for gestational age, but there was evidence that they were a larger baby whose placenta began to fail and cause compromise despite their average size. 

There was agreement that our client suffered from an acute hypoxic injury (brain damage) around 24 hours before birth, but from which they recovered to a certain extent before they were born. 

We argued that had the CTG monitoring been repeated at 37 weeks, as the defendant accepted should have happened and in light of the background medical situation, it was most likely that the monitoring would not have provided reassurance. Subsequently, we argued that this would have set in motion a sequence of monitoring which would have revealed a deteriorating picture, and would have led to the baby being delivered before suffering harm. 

The defendant argued that it was more likely that the follow up CTG would have been normal, and our client’s mother would have been released to midwifery follow up – as actually happened – and the events leading to our client’s injury would have unfolded in the same way. 
Experts for the claimant and defendant met to discuss the case and both stood by their respective positions. We therefore negotiated a compromised settlement at a round table meeting shortly before the liability trial was due to take place, with our client to be awarded 60% of the full value of the claim. 

Financial settlement 

Our client retains a warm and infectious personality, but was left with very significant needs arising from their cerebral palsy. They previously had a period of very challenging epilepsy, which had waned by the time of settlement, but the risk of seizures remained. They have a reduced life expectancy, are dependent on carers for all aspects of daily living, are gastrostomy fed, doubly incontinent, non-verbal with significant learning disabilities and have a cortical visual impairment. 

Evidence was gathered from experts in the fields of:

• neurological rehabilitation;
• orthopaedics;
• ophthalmology;
• care and case management;
• accommodation;
• occupational therapy;
• educational psychology;
• speech and language therapy;
• physiotherapy;
• assistive technology;
• deputyship; and 
• financial advice.

Detailed consideration was given to our client’s future accommodation needs and care and case management requirements. We secured interim payments totalling £800,000 during the financial investigation, and arranged the appointment of a deputy and case manager, working closely with both to manage the available funds. This allowed our client to move out of their existing home, which was unsuitable for their needs, into temporary rental accommodation which allowed a care regime to be put in place while a property to purchase and adapt was identified. This also allowed our client to access therapies, which were very positive changes for their quality of life.

Given the living nature of a case like this, we updated the witness evidence ahead of the settlement negotiations to set out recent changes to the care regime, reflecting a gradual move away from reliance on day centre provision and towards bespoke therapies to support our client’s individual needs, which was being facilitated by the case manager using the interim funds. We also set out further evidence from the existing care regime supporting the need for two carers overnight, one waking and one sleep-in, given that the defendant was arguing that one carer was sufficient. We were successful in our arguments on both points.

The final agreed settlement, after the 40% reduction to reflect the compromise in this case, was a lump sum award of £3.7 million, plus annual payments for care and case management of £250,000 for life, leading to an estimated capitalised sum of just below £9 million. These funds will allow our client to have as secure and fulfilling a future as possible. 

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