Boyes Turner’s HIE birth injury solicitors have secured a 90% judgment and a preliminary £50,000 interim payment in an ongoing claim for a child with cerebral palsy. The full extent of our young client’s disability and its impact on her life is still to be established before final settlement of her claim.
No sense of urgency in maternity triage midwife’s telephone advice
The pregnancy proceeded normally until 39 weeks, when the mother experienced an episode of cramping abdominal pain. This eased but then reappeared the following day. She sent a text message to her community midwife but received no response. She could still feel the unborn baby moving at this time.
Early the next morning she noticed light spotting of blood. She sent a photograph to her midwife via WhatsApp and asked if she should be worried. By early afternoon the spotting had become darker, so she tried calling the midwife but couldn’t reach her.
She then called the maternity triage line at the hospital and spoke to a midwife who noted that she was not in labour but was concerned about vaginal (PV) bleeding, abdominal pain and reduced fetal movements that day. The midwife told her to come to the hospital using her own transport. The hospital’s own guidelines required the telephone triage midwife to use her clinical judgement in advising a pregnant mother to attend hospital within 30 minutes or one to two hours, and to document clearly the advice that was given. The midwife did not document any advice and the mother was not told that her symptoms of abdominal pain, PV bleeding and reduced fetal movements meant that she should be seen urgently within one to two hours. If she had been advised of the urgency, she would have called a taxi and gone straight to the hospital. Instead, unaware of the urgency, she waited until her husband returned from work and they drove the 30 minute journey to the hospital together, arriving nearly two and a half hours after the triage call.
Hospital delays lead to HIE birth injury from extended chronic partial and acute profound hypoxia
At the hospital, following triage, the mother waited a further hour before being properly assessed. The fetal heart rate (FHR) was auscultated on a hand-held Doppler and CTG monitoring started, which showed FHR abnormalities including reduced baseline variability and absence of accelerations. Given the mother’s history of abdominal pain, PV bleeding and reduced fetal movements, the pathological CTG trace should have been escalated to an obstetrician for review within 20 minutes of the CTG starting. Instead, there were further delays before a registrar was called, reviewed the CTG and decided to carry out an emergency caesarean section.
The baby was born in poor condition with no heartbeat. She needed resuscitation and was still not receiving adequate oxygen during the six minutes that it took for her heart rate to reach safe levels. Blood tests from the umbilical cord showed severe acidosis (a sign that the unborn baby has suffered oxygen deprivation). She was transferred to the neonatal intensive care unit (NICU) for cooling. She suffered seizures whilst on NICU. An MRI scan a week later showed evidence of hypoxic ischaemic brain injury. She was diagnosed with grade 3 HIE.
HSIB investigation
HSIB carried out an investigation into the maternity care that the mother received. They identified that the hospital’s telephone triage midwives were untrained in maternity triage, having been redeployed during the covid pandemic. They found that, contrary to hospital guidelines, the need for urgency had not been communicated to the mother when she was asked to attend hospital. HSIB questioned why the mother’s reported bleeding combined with reduced fetal movement and abdominal pain had not resulted in advice to attend hospital immediately.
Making a birth injury claim for compensation
Our birth injury solicitors helped the child’s family make an HIE birth injury claim for compensation for the child’s cerebral palsy disability.
We sent a letter of claim to NHS Resolution based on our medical experts’ opinions that the telephone triage midwife’s negligent failure to advise the mother to attend hospital urgently and the delays in assessing our client and escalating the pathological CTG delayed delivery by an hour to 1 hour 40 minutes. During this delay, the unborn baby’s ongoing chronic partial hypoxia was compounded by a near terminal acute profound episode of hypoxia in the minutes leading up to her birth. With correct care, the additional extended period of chronic partial hypoxia and the acute profound hypoxic insult would have been avoided. The additional negligent period of hypoxia made an indivisible material contribution to our client’s functional disability.
NHS Resolution deny liability for our client’s birth injury
When NHS Resolution failed to respond to the letter of claim, we issued court proceedings. In their formal defence, NHS Resolution admitted the triage call midwife’s negligent failure to document her advice, but denied that she had failed to advise our client’s mother of the urgency. They admitted that there had been negligent delays in assessing the mother, starting and escalating the pathological CTG, leading to delays in the baby’s delivery. They agreed that the cause of the child’s brain injury was hypoxia at birth but relied on the MRI scan (which showed no evidence of an acute profound hypoxia) to dispute that a pre-delivery additional acute profound episode of hypoxia contributed to the injury. In our experts’ opinions, the lack of evidence of acute profound hypoxia on the newborn baby’s MRI brain scan was to be expected after treatment with cooling, and other evidence, including the baby’s condition at birth and dystonic disability, supported the occurrence of an acute profound hypoxic episode.
Liability settlement and interim payment
Following exchange of medical experts’ reports, our legal and medical experts believed that our client’s case was strong, despite some litigation risks arising from NHS Resolution’s defence. We pushed the case towards a trial on liability, but reached a 90% liability settlement with NHS Resolution during negotiations a few months before trial. The liability settlement provides certainty for the family that the claim will provide substantial compensation to meet their child’s lifelong needs arising from her cerebral palsy disability. Her immediate needs will be met with a preliminary £50,000 interim payment, allowing us to appoint a Court of Protection deputy and obtain a case manager’s immediate needs assessment, whilst we work with the child’s family and our experts to value the claim in preparation for final settlement.
The family’s privacy is protected by an anonymity order.
If your child has cerebral palsy or neurological disability as a result of medical negligence, or you have been contacted by HSSIB/MNSI or NHS Resolution, you can talk to a solicitor, free and confidentially, for advice about how to respond or make a claim by contacting us.
Written by
Julie Marsh
Julie is a partner within Boyes Turner’s outstanding medical negligence team. She specialises in high value and complex claims for clients whose lives have been changed by cauda equina (CES) and spinal cord injury (SCI), amputation, brain injury and disability caused by infections such as meningitis, sepsis and tuberculosis (TB).
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