Enable Law are representing Eddie*, now 16, in a birth injury claim, where he alleges that mistakes made by midwives and doctors during his mother’s pregnancy led to a delayed birth. This delay caused a lack of oxygen to his brain (hypoxic-ischaemic encephalopathy – HIE), which resulted in him suffering severe hearing loss in both ears as well as developing learning and behaviour difficulties.
Justin Goodman, the legal director representing Eddie, secured public funding (legal aid) to assist him in his claim and the NHS Trust admitted that when his mother raised concerns she should not have been discharged by midwives and instead should have been referred for consultant-led care. Had she been referred at this stage, CTG monitoring would have taken place, and Eddie would have been born sooner.
Even though the hospital admitted they were at fault for the delay, they also claimed that Eddie’s injuries were not caused by it. In fact, they claimed that he suffered brain damage much earlier during his mum’s pregnancy and way before she raised concerns that should have led to an earlier delivery. They also claimed that the loss of hearing Eddie suffers from could have been genetic as there was a strong family history. Finally, they pointed out that some of his symptoms didn’t fully match those caused by a lack of oxygen at birth. All in all, they claimed that Eddie’s injuries were unavoidable, and an earlier delivery triggered by his mum’s concerns would have made no difference.
Proving that medical negligence led to our client’s HIE
Justin sought advice from obstetrics and audiology medical experts who strongly disagreed with the hospital’s position. Supported by this evidence, he argued that had Eddie been delivered earlier his brain injury and hearing loss could have been avoided. Justin argued that even if the hypoxic-ischaemic encephalopathy (HIE) was unavoidable, the delay in Eddie’s birth significantly contributed to his injuries. As it was impossible to prove at which stage of his mum’s pregnancy it happened, the case was presented on a material contribution basis. What this means is that Justin argued that the hospital’s admitted negligence significantly contributed to Eddie’s injuries, even if we couldn’t prove it was their only or main cause. Essentially, we focused on demonstrating that the negligence leading to Eddie’s delayed birth significantly increased the risk of the injuries he suffered, even if the exact timing of the initial damage remained uncertain.
There was a clear overlap between the brain injury and hearing loss and the case was potentially very complex, as if we were unsuccessful in proving that the hearing loss was linked to the delay in his delivery, there was a risk that this would affect the amount of compensation we could recover for him.
As we could not agree with the NHS Trust, we had to issue proceedings and prepare for trial. The trial was scheduled to take place over 5 days and would establish if the negligent care Eddie’s mum received leading to the delay in his birth caused his injuries and if so to what extent.
With the court date approaching, we went to mediation to try to resolve liability and avoid going to trial. We managed to reach an agreement with the hospital. They accepted that if the negligent care leading to the delay in Eddie’s birth had not happened, he would have been born completely healthy. He wouldn’t have suffered the brain damage or the hearing loss.
This was important as it meant that the hospital accepted liability for Eddie’s injuries.
What happens next?
Justin secured an interim payment (that is an early payment to meet urgent needs) to meet some of Eddie’s more immediate needs and is now in the process of getting expert reports on how Eddie’s injuries will affect him for the rest of his life to establish what level of compensation will be able to meet them.
A mental capacity assessment found that Eddie does not have capacity to manage his own financial affairs. As a result, Justin helped him appoint a Deputy who will do this for him. Simultaneously, a case manager was appointed and carried out an immediate needs assessment. The case manager is coordinating Eddie’s care plan to ensure his needs are met by the right professionals to both maximise his chances of overcoming some of the difficulties he is facing but also provide support to his parents and siblings who up until this point were his only carers.
The Deputy and Case Manager are now arranging various assessments for Eddie and the Enable Law Education team is in the process of reviewing his Education Health Care Plan and setting out a plan to enable him to continue his education exploring vocational training options and support within the community.
Supporting clients who suffered complex injuries and HIE at birth
We have a dedicated team of expert solicitors with decades of experience supporting clients who have suffered preventable injuries before, during or after birth.
Birth injury claims tend to be very complicated. Having an expert by your side can make all the difference. To have a free, confidential discussion with a member of our team about something that may have happened to you, your child or another loved one you have caring responsibilities for contact us on 0800 044 8488 or alternatively fill in our contact form so we can call you back at a time convenient for you.
*Client’s name changed to protect his identity.
