€3.25m interim award of damages for 14-year boy injured at birth
Z (an infant) v Rotunda Hospital
The facts – pregnancy labour and delivery.
The Plaintiff’s mother had been diagnosed with polycystic ovarian syndrome (PCOS) resulting in a degree of subfertility, a history of fibromyalgia, excessive BMI and trouble with varicose veins as well as a history of prior miscarriages. Mother also had fertility investigations and treatment. Thus, mother was a high-risk candidate for pregnancy.
Mother became pregnant in late 2008 and was booked in at the Rotunda Hospital for antenatal care at a booking appointment in January 2009. During booking, her delivery date was estimated to be mid May 2009. Mother had two early foetal scans in November 2008 and a third scan in January 2009. There was a low-lying placenta, and therefore a repeat scan was planned for 32-34 weeks’ gestation. Mother’s weight was between 112 kg and 121Kg (depending upon conflicting records) at booking and had a high body mass index (BMI).
During her pregnancy, Mother was referred for anaesthetic assessment in view of her raised body mass index, although she did not undergo anaesthetic assessment antenatally. Mother attended for routine antenatal visits, initially biweekly and latterly weekly up to the 40+ weeks gestation. She had a further scan on 9 June 2009 at 10 days post-dates which reported a normal biophysical profile. Induction of labour was planned for 11 June 2009. Notwithstanding this, Mother attended at the Rotunda Hospital on 10 June 2009.
The medical records provided to the family by way of FOI, suggested Mother attended the Rotunda Hospital on 10 June 2009, at approximately 22:35 hours, complaining of contractions since earlier in the day, no foetal movements and vaginal bleeding since 21:00 hours. Following Court Order for discovery, an additional hospital A and E record was discovered which established that mother had phoned the hospital and had spoken to a member of the midwifery staff at or prior to 21.15hrs. Mother informed the midwife of reduced foetal movements, pain and bleeding. She was advised to come into the maternity hospital. Her evidence would have been that she had her hospital bag ready (as she was for induction the following morning in any event) and left immediately. This appears entirely realistic. She was already over term (“41+”), had experienced prior pregnancy loss and she was concerned enough to call the hospital, so this aligns with an intention to leave for hospital. Her evidence is that it took no more than 40 minutes to get to the Rotunda
So, the Plaintiff’s evidence would be that Mother arrived at the Rotunda in or around 10.00hrs on 10 June 2009, she was, however, triaged and sent to the Delivery Suite at 22.35hrs, having been told to sit and wait in the interim.
A cardiotocograph (“CTG”) trace commenced at 23:04 hours: this is 29 minutes after she had been sent to the Delivery Suite. Mother and baby were examined. It was noted, following auscultation of the foetal heart rate, at approximately 23:11 hours, that the foetal heart decelerated to 82-100 beats per minute for 4 minutes, with subsequent recovery.
At 23:23 hours, obstetric assistance was sought and there was a further deceleration. At 23:30 hours an Obstetric Registrar attended and did a vaginal examination. At 23:36 hours Mother was transferred to theatre for caesarean section, although this decision is timed in the record as having been made at 23:38 hours. At 23:41 hours the foetal heart was auscultated to 150 beats per minute. At 23:51 hours spinal anaesthetic was placed and knife to skin was noted at 23:56 hours with the Plaintiff being born at 00:03 hours on 11 June 2009.
The Plaintiff was born with APGAR scores of 6, 6 and 7 at 1, 5 and 10 minutes respectively and weighed 3.15 kilograms. Investigations would later reveal cord blood gases were 7.24/7.26. An attempt was made to suction meconium, but it was noted the suction in theatre was not working.
In the immediate neonatal period, three things were of significance. First, there was an absence of the Plaintiff having a severe acidosis at the time of delivery: the values for both arterial and venous pH were not suggestive of a severe or near total episode of ischaemic insult. This could represent some intrapartum recovery from a prolonged partial hypoxic insult. Secondly, whilst it was noted he was making good spontaneous respiratory effort, he was noted to be cyanosed and to have a weak cry, so he was given facial oxygen and the paediatric SHO called for the Registrar at about 15 minutes of age. Thirdly, when the Paediatric SHO examined him, no meconium was seen at the vocal cords.
Matters changed utterly, by about 40 minutes of age, there was “severe metabolic acidosis” (pH 7.05 and base excess -14.4) which was most probably a consequence of the ongoing hypoxic ischaemic insult exacerbated by the presence of meconium aspiration syndrome. On arrival, the Paediatric Registrar intubated the Plaintiff, commenced intermittent positive pressure ventilation and admitted him to the Neonatal Intensive Care Unit (“NICU”) with a diagnosis of meconium aspiration. Meconium was noted and a 40ml retroplacental clot was found on examination of the placenta.
A report of MRI brain taken on 17 June 2009 concluded there was abnormal diffusion and abnormal signal consistent with ischemia in the posterior bilateral watershed areas bilaterally. Oedema (brain swelling) was noted in the posterior aspect of the thalamus “sometimes seen and associated with this pattern”.
The Plaintiff has suffered long term neuro developmental difficulties with significant intellectual disability, relatively normal motor function and marked autism spectrum disorder. His parents were advised that cognitive difficulties with a degree of visual perceptual problems and attention difficulties would be associated with this injury. By 2018, the Plaintiff’s diagnosis was structural epilepsy, focal seizures evolving to bilaterally convulsive seizures, previous neonatal encephalopathy with bilateral watershed infarcts, autism, intellectual disability, poor sleep hygiene and recurrent tonsillitis.
Claim and Defence
The Plaintiff alleged that his injuries were caused and/or materially contributed to by the wrongdoing of the Defendant namely the 40 to 50 minutes of undue delay in delivering the Plaintiff by emergency section occasioned as a result of the delay in commencing CTG monitoring immediately after arrival in hospital. In its Personal Injuries Defence, the Defendant alleged there “was a significant and antenatal and pre labour severe placental pathology, meconium associated vascular necrosis, present in the plaintiff’s placenta at birth” and maintained that “the said placental pathology was present and occurred prior to the Plaintiff’s mother being admitted to the Defendant’s Hospital”. It alleged that the “injury, loss, damage, inconvenience and expense were not caused by wrongdoing on the part of the Defendant”.
In summary, the Defendant claimed that the entirety of the Plaintiff’s brain damage occurred before he was born and probably in the days or week prior to delivery. The Plaintiff on the other hand, asserted that most or all of the brain injury occurred at around the time of delivery such that if the Plaintiff had been born 50 minutes earlier, most or the “lions share” of the brain injury would have been avoided.
There was conflicting expert opinion on either side of the case both on the issue of negligence and timing of injury. As the Defendant was disputing liability so strongly no attempt was made by them to try to settle the claim before the case was called on for trial. However, when the case was allocated a trial judge the Defendant asked the Court for time and commenced negotiations.
Eventually, after more than a day of settlement discussions between the parties an agreement was reached on a compromised liability basis. The Defendant agreed to pay an interim sum of €3.25m to settle certain items of the claim on a full and final basis and pay care for the plaintiff for the next 5 years. In 5 years’ time, the case will again return to Court for the assessment of all the Plaintiff’s future care needs and the Plaintiff’s damages will be assessed at 50% of their full value. The settlement terms agreed reflect the significant risk that had the case gone all the way through trial and judgement, the Plaintiff could have lost the case. As such an outcome would be disastrous for the Plaintiff and his family, this firm as the Plaintiff’s legal advisors had to take a prudent and cautious approach. We strongly recommended the compromise settlement to the Court for approval with the family’s support. The Court was happy to approve the terms of settlement.
The result achieved was a very satisfactory outcome to a very difficult complex case in which liability was hotly disputed. The damages recovered now and, in the future, will make a massive difference to the Plaintiff’s quality and enjoyment of life.
If you have any queries about similar issues to those that arise in this case or would like advice on similar issues, contact any of our partners who have a specialty in birth injury litigation;