UK Cerebral Palsy Negligence

Compensation Claim for the Failure to Advise of Risks Resolved at Court

Posted on: March 11th, 2015 by Medical Negligence

A landmark compensation claim for the failure to advise of risks associated with a natural birth has been resolved at the Supreme Court in London.

On 1st October 1999, Sam Montgomery was born at the Bellshill Maternity Hospital in North Lanarkshire having been deprived of oxygen when a medical emergency occurred during his birth – Sam´s shoulder having got trapped during the delivery process and it taking twelve minutes to free him.

Sam suffered shoulder dystocia and a brachial plexus injury which still affects him today; but the deprivation of oxygen during the procedure to release the shoulder – and his subsequent resuscitation – caused Sam to suffer permanent brain damage and he was diagnosed with cerebral palsy.

Despite the medical team at the hospital having done everything they could have “at the time and in the circumstances” to ensure a safe delivery, Sam´s mother – Nadine Montgomery – sought legal advice and subsequently made a compensation claim for the failure to advise of risks against NHS Lanarkshire.

Nadine alleged in her claim that her consultant obstetrician and gynaecologist – Dr Dina McLellan – should have warned her there was a higher than average chance her son would suffer shoulder dystocia during the delivery, as Nadine is a petite woman who also suffers from Type 1 diabetes.

When the compensation claim for the failure to advise of risks went to the Outer House of the Court of Session in Edinburgh, the court was told that women with Type 1 diabetes are more likely to have bigger babies, that Nadine had expressed concerns during her pregnancy about delivering the baby safely and that – had she been told of the risks – Nadine would have chosen a Caesarean Section operation over a natural birth.

Lawyers representing Dr McLellan and NHS Lanarkshire argued that the consultant´s duty to advise Nadine of the risks associated with a natural birth only applied if there was “a high probability of a grave adverse outcome”.  As the risk of shoulder dystocia occurring during Sam´s birth was considered to be 9%-10%, Dr McLellan chose not to advise Nadine of the risks.

The Outer House of the Court of Session found in the consultant´s favour, as did the Inner House of the Court of Session when Nadine appealed the original verdict. Nadine took the compensation claim for the failure to advise of risks to the Supreme Court, where a panel of judges at the highest court in the land found in Nadine´s favour and awarded her £5.25 million.

What was highly significant in this case was the language of the judges´ ruling. Lady Hale – commenting on Dr McLellan´s testimony that it was “not in the maternal interests for women to have Caesarean Sections” – said that the advice over why a caesarean section may not be in women’s maternal interests did “not look like a purely medical judgment”.

Delivering the verdict, Lord Kerr and Lord Reed commented “There can be no doubt that it was incumbent on Dr McLellan to advise Mrs Montgomery of the risk of shoulder dystocia if she were to have her baby by vaginal delivery, and to discuss with her the alternative of delivery by caesarean section.”

The judges continued by saying it would be a mistake to view patients in the modern world as “uninformed, incapable of understanding medical matters or wholly dependent upon a flow of information from doctors” and that social and legal developments have moved the doctor-patient relationship away from a “medical paternalism” and towards an informed partnership.

The Supreme Court´s verdict is significant as it changes doctor-patient relationships and the criteria for what is considered to be “informed consent”. Patients now have the legal right to be provided with information about possible alternative courses of action – and their associated risk factors – and decide what level of risk they are prepared to accept taking into account all the available information.

Niall Dickson, Chief Executive of the General Medical Council, welcomed the judgment. He said “We are pleased that the court has endorsed the ­approach advocated in our ­guidance on consent. [Doctors] must work in partnership with their patients, listening to their views and giving them the information they want and need to make decisions.”

£10 Million Package of Compensation for Hospital Medical Negligence Approved

Posted on: February 21st, 2015 by Medical Negligence

A judge at the High Court in London has approved a package of compensation for hospital medical negligence with an estimated value of £10 million.

In April 2007, Ayla Ellison was born by emergency Caesarean at the Furness General Hospital in Cumbria after foetal distress had been identified. An avoidable delay in the procedure led to Ayla being starved of oxygen in the womb, and Ayla also sustained a severe haemorrhage in the womb as she was being delivered.

Due to her birth injuries, Ayla suffers from severe quadriplegic cerebral palsy, epilepsy and partial blindness. She has to be fed by a tube and her body is incapable of controlling its body temperature. Ayla also suffers painful muscle spasms that can only be alleviated by immersion in a hydrotherapy pool.

Ayla´s parents – Carla and Daniel Ellison – made a claim for hospital negligence compensation on their daughter´s behalf against the Morecambe Bay NHS Foundation Trust. In 2012 the NHS Trust accepted the Ayla´s birth had been mismanaged and discussions started on the most appropriate settlement of compensation for hospital medical negligence.

When a negotiated settlement was agree, the case went to the High Court in London for the settlement to be approved; where Mr Justice Warby heard a statement read to the family from the medical director of the Morecambe Bay NHS Foundation Trust – David Walker – in which the NHS Trust apologised for the harm caused to Ayla and the distress caused to her family.

The judge was also told that the Ellison family was moving to London for Daniel´s job as a consultant engineer, and that part of the settlement of compensation for hospital medical negligence included £1.7 million for the family to buy a home with a hydrotherapy pool in Richmond.

The remainder of the settlement includes a lump sum payment of £295,000 to be paid immediately with annual tax-free, index-linked payments of £225,000 thereafter – rising to £290,000 when Ayla is eighteen years of age. The settlement of compensation for hospital medical negligence has an estimated value of £10 million taking into account the interim payments of compensation that the NHS Trust has been making since 2012.

Approving the settlement, Mr Justice Warby commended Carla and Daniel Ellison for the “calm and intelligent” way in which they had dealt with the tragedy of Ayla´s birth injuries and commented “I have no hesitation in accepting that the stated intention of Carla and Daniel Elliston to move to London to build a new family life there is a sincere, genuine and heartfelt one.”

Settlement of Compensation for Failing to Act During Birth Emergency Approved by High Court

Posted on: June 18th, 2014 by Medical Negligence

The High Court has approved a settlement of compensation for failing to act during a birth emergency which will provide a lifetime of support for a boy permanently disabled due to medical negligence.

Toby Hart was born at the Friarage Hospital in Northallerton in October 2006, twenty-five minutes after an abnormal heartbeat reading was recorded by medical staff at the hospital. Due to midwives failing to act when the foetus was in distress, Toby´s brain was starved of oxygen and he was born suffering from cerebral palsy and epilepsy. Toby (now seven years of age) needs 24-hour care as he is registered blind and has learning difficulties.

Through his parents – Michelle and Matthew Hart – Toby claimed compensation for failing to act during a birth emergency against the South Tees Hospitals NHS Foundation Trust and, after the NHS Trust had acknowledged that mistakes had been made at Toby´s birth, the Hart´s started to receive interim payments of compensation for failing to act during a birth emergency.

A final settlement was recently agreed, in which the Hart´s would receive a lump sum payment of £2 million, with annual index-linked payments of almost £500,000 each year to ensure Toby was financially supported and would receive an appropriate level of care for the rest of his life. However, before the Hart´s compensation claim could be completely resolved, the compensation had to be approved by a judge as it was made on behalf of a minor.

Consequently, at the High Court in London, Mrs Justice Nicola Davies was told of the circumstances which led to Toby´s birth injuries and the details of the compensation package. The judge approved the settlement after an apology was read out to the Hart family by a representative of the South Tees Hospitals NHS Foundation Trust.

In the apology, the spokeswoman for the Trust said no amount of money could compensate fully for the mistakes that were made at the time of Toby´s birth, but it was hoped that the settlement of compensation for failing to act during a birth emergency would give the Hart family financial security and provide for Toby’s care requirements now and in the future.

Judge Approves Settlement of Maternity Medical Negligence Claim

Posted on: October 26th, 2012 by Medical Negligence

A high Court judge has approved a £6 million settlement of a maternity medical negligence claim in favour of an eleven-year-old boy who suffers from cerebral palsy.

On April 14th 2001, Joseph O´Reggio was born at Birmingham´s New Cross Hospital with cerebral palsy after his heart rate had fallen several hours previously and he was starved of oxygen in the womb. Joseph now needs around-the-clock care and is unable to communicate verbally or feed himself.

On Joseph´s behalf, his mother made a maternity medical negligence claim against the Royal Wolverhampton NHS Trust – alleging that a decrease in Joseph´s foetal heart rate had been identified during the morning of Joseph´s birth, but a consultant had not been summoned until 10:00pm in the evening evening.

The NHS Trust admitted in 2011 that Joseph should have been delivered as soon as a decrease in his foetal heart rate was discovered, but denied full responsibility for his birth injuries. Instead the NHS Trust agreed to accept 80% liability and the claim was put on hold while a review of Joseph´s future needs was conducted.

At the Royal Court of Justice this week, the final settlement of the maternity medical negligence claim was approved. In addition to the interim payments of compensation the family has already received, Joseph will receive a lump sum payment and index-linked tax free periodic payments for the rest of his live.

Based on Joseph´s life expectancy, the total value of the settlement is estimated to be in excess of £6 million, and it will allow Joseph´s family to move into a modified house which is equipped with the specialist rehabilitation tools Joseph will need to develop his sight, hearing, touch and taste senses, his language skills, and his hand-eye coordination.

Hospital Administration Negligence Blamed for Birth Injury

Posted on: May 8th, 2012 by Medical Negligence

Hospital administration negligence has been blamed for catastrophic birth injuries which left a child requiring a lifetime of care after sustaining severe spastic quadriplegic cerebral palsy.

A jury at the Philadelphia Court of Common Pleas heard how Victoria Upsey (36) from Pottstown in Philadelphia was admitted to the Pottstown Memorial Medical Centre when 36 weeks pregnant displaying signs of placental abruption.

Doctors attempted to establish the well-being of Victoria´s baby with a foetal scan, but when results were inconclusive, an ultrasound was performed despite the ultrasound technician not being present as it was a Sunday.

The consultant obstetrician who performed the ultrasound failed to detect a heartbeat and informed Victoria that her child had died. However, when the technician was summoned to confirm the obstetrician conclusions, it was discovered that the baby was still alive.

An emergency Caesarean operation was scheduled, but because of a delay of 81 minutes while the hospital was waiting for the ultrasound engineer to arrive, the foetus suffered a lack of oxygen and was born with severe spastic quadriplegic cerebral palsy.

After seeking legal advice, Victoria and her family made a claim for birth injury compensation against the medical centre and consulting obstetrician; however, while preparing the claim, solicitors discovered that the ultrasound equipment had not been serviced for more than 10 years despite the operating manual indicating that annual maintenance was required.

Victoria´s solicitors argued in court that the hospital administration had been negligent – rather than the consultant obstetrician – a view which was shared by the Honourable Mark Bernstein and the jury at the Philadelphia Court of Common Pleas.

Finding the Pottstown Memorial Medical Centre guilty of hospital medical negligence, the jury awarded Victoria and her family 78.5 million dollars in respect of the injuries suffered by the child – now three years of age – the cost of medical care in the future, loss of earning potential and the emotion trauma that Victoria had experienced having been told that her baby had died and 81 minutes later being told it was still alive.