When family A’s son was born in 1988 he suffered a birth injury that left him severely disabled. At the time they weren’t aware that there might have been a reason for the injury and accepted that it was simply a difficult birth. It wasn’t until much later on that a possible failure in her son’s care came to light. The son didn’t have the capacity to litigate and so the parents, as his representatives, approached us in 2009 looking to us for advice. Given the son’s condition we felt it was very important to take on the case.
Our initial role was to investigate the circumstances of the birth and to consider if there were grounds for a clinical negligence claim. We gathered a large amount of information, including medical records, maternal obstetric records and notes from the time, although, given the age of the case, obtaining original documents and medical notes from 1988 was exceptionally difficult.
The time period in question was before the full digitisation of medical records, and paper documents risk being lost or destroyed over the years. We were very fortunate to recover what was necessary to sustain the case, especially as there is no requirement for a child’s records to be kept after their 25th birthday. The son at the time in question was 21 and fast approaching this deadline.
The records showed that the foetus was being monitored for some time during which he was in distress and suffering deprivation of oxygen, which in turn, caused brain injuries. This led us to believe that the son should have been delivered earlier and that his mother should have been taken for an emergency Caesarean Section and we consequently brought a claim against the hospital Trust.
This raised another issue – who would be liable for the claim? The hospital Trust providing the care at the time no longer existed and its control had changed hands within the NHS. Eventually the claim was brought against the Secretary of State for Health.
To support our claim, which the other side strongly denied, we also needed to find expert medical witnesses – sufficiently senior obstetricians and midwives at the time in question – to attest to any discrepancies in the records or shortcomings in the care provided. This was a tall order considering many were elderly, retired or had even passed away. We managed to find five expert witnesses and, combined with the evidence gathered, we had to prove that in 1988 the actions the medical team took were substandard and would not have been supported by a reasonable body of medical opinion at that time.
We then had to demonstrate that the failing in the care of the mother and her son directly caused his severe disability and that there was little or no chance that he would have developed that disability had the care not been negligent.
By October 2014 (five years after the case started), despite no formal acceptance of liability from the other side, we secured a judgement in favour of the Claimant. Arguably this was only half the battle. We then had to determine how much compensation our client should receive, which took a further 20 months.
Up to this point our client had been managing with the bare minimum in care and support; relying entirely on state care and living in a less-than-ideal care facility for his particular disability. His parents worked full time and the limited care staff available meant that our client could rarely go out, not even to attend therapy sessions. We obtained an interim payment in advance of the final settlement that changed our client’s quality of life overnight. It meant that for the first time he could receive good-quality care, appoint a case manager, employ private support workers to supplement the care he was receiving, attend hydrotherapy, receive speech and language therapy and have the equipment and technology to help manage his condition.
However, before we came to a final financial settlement, we faced a separate set of difficult issues. Firstly, the management of a further 11 experts needed to gain a full understanding of what our client would need over the course of his life to ensure the best care and support possible and full compensation.
Whilst we were keen for our client to live independently, helped by a team of carers of his choosing, the other side were keen to go against this and insisted that our client would be isolated and it was in his best interests to remain in group living with other disabled people. The crux of their argument was that living with others would be the closest he would get to a family set up of his own. They also argued that the state-funded care he received was adequate.
One of the witnesses we called was our client’s case manager. She knew his needs well and was responsible for his therapy and care package so her statement was incredibly important in determining his future. However, the Defendant refused this and argued that she was going beyond her role as a witness and that her statement should not be relied upon. This escalated to a contested court hearing involving barristers. The judge ruled wholly and positively in our favour, giving us permission for her statement and reinforcing the importance of the case manager’s statement.
Finally, we came to a settlement but again came up against a very firm defence, who made no concessions until the very end. The initial settlement offered by the Defendant was a lump sum of £950,000 and annual payments of £30,000. We felt that these sums were greatly insufficient to provide adequate support and care to our clients and, after much deliberation and negotiation, we settled on a lump sum of £3.4 million with annual payments of £195,000.
This result will have a hugely positive impact on our client’s quality of life and we’re happy that we were able to secure this result for him and his family. It will give them peace of mind to know that his needs are taken care of and relieve some of their stress and worry.
The lead for our team was Ann Houghton supported by Rankeshwar Batta. We also involved some of our fee earners to assist with Court of Protection aspects of the case, with Alex Elphinston standing as an expert on Court of Protection costs.
