Oliver Thorne, a medical negligence lawyer covering Devon, Somerset and the south west, looks at the decision in RE –v- Calderdale and Huddersfield NHS Foundation Trust, a case relating to a birth injury condition known as shoulder dystocia. The case also included claims by the child’s mother and grandmother for psychiatric injury.
The baby at the centre of this case suffered what is known as an hypoxic ischaemic insult during her birth, resulting in permanent brain injury.
A claim was made on behalf of the child on the basis that the maternity unit caused a delay during the birth leading to the brain injury occurring.
Claims were also made by the baby’s mother and grandmother for psychiatric injury, known as ‘nervous shock’.
The shoulder dystocia claim
Scans performed prior to delivery confirmed that the baby was much larger than normal. In fact she was above the 97th centile and predicted to weigh in at 4.5kg.
An Obstetric Registrar assisted with the birth, but didn’t enter the delivery room until late on when advanced difficulties had been encountered. The baby was born pale and floppy. She was resuscitated but it was 12 minutes before she breathed.
The child’s legal team alleged that delays occurred in the delivery that could have been avoided. These delays, they said, resulted in avoidable injury occurring.
The birth was complicated by a condition known as shoulder dystocia. Shoulder dystocia arises when a baby’s shoulder gets stuck in the mother’s birth canal. The effect can be catastrophic. Until a baby is born it is dependent on the mother for oxygen. If the umbilical cord is compromised by shoulder dystocia the supply of oxygenated blood can be restricted. Shoulder dystocia is therefore widely regarded as one of the most frightening of medical emergencies.
Lawyers said that because shoulder dystocia is associated with very large babies this occurrence should have been anticipated and acted upon.
This viewpoint was accepted by the court. The judge agreed that the midwife should have realised that there was a material possibility of shoulder dystocia arising and called for obstetric help at an earlier stage. By failing to do so the birth of the baby was delayed by 11 minutes. This 11 minute delay was responsible for the brain injury occurring. If the midwife had reacted sooner the delay would have been avoided and the baby would have been injury free.
The court therefore said that the child was entitled to be compensated.
The nervous shock claims
Claims can be made by individuals suffering psychiatric injury (known by lawyers as ‘nervous shock’) even where they are not the ‘primary’ victim of the event. These individuals are known as ‘secondary victims’.
For a nervous shock claim to succeed the claimant must be close in terms of love and affection to the person injured and close in terms of sight or sound to the event causing the injury.
There must also be evidence that the psychiatric illness has been brought on by shock caused by a sudden, horrifying event.
The mother and the grandmother were both diagnosed as suffering from PTSD, post traumatic shock disorder.
Considering the mother’s claim, the judge said that she could be regarded as either a primary or a secondary victim because the shock occurred as she was giving birth, before the baby was a distinct legal entity.
He went on to confirm that her PTSD was caused by the birth. The experience arose without warning and would have been shocking, exceptional and horrifying. Accordingly the mother was entitled to damages for her psychiatric injury.
The grandmother was also present at the birth. She was close to her daughter and was clearly a secondary victim. The judge concluded that her PTSD had also been triggered by the birth and that the events were sufficiently ‘sudden, shocking and objectively horrifying’. It therefore followed that she too was entitled to claim compensation for her psychiatric injury.
If you wish to speak to Oliver about medical negligence involving a birth injury or any other clinical case then you can contact him on 01271 372128 or email him at [email protected]
Oliver is happy to provide free initial guidance and undertakes home and hospital visits throughout Devon, Somerset and the south west.
We deal with clinical negligence cases on a no win, no fee basis so nobody should allow concerns over funding a legal case to put them off seeking justice.