The nine-year legal case centred on the care provided to the boy’s mother when she was 37 weeks pregnant and the concerns she raised about a continued lack of movement when attending an antenatal clinic.
It was alleged an obstetrician wrongly reassured her all was fine following a scan. Four days later, after continued lack of movement, her son was born at the City Hospital in Nottingham.
He was left severely disabled having suffered a brain injury due to chronic partial hypoxia and in need of 24-hour care.
The family is now set for a potential £20m medical negligence damages from Nottingham University Hospitals NHS Trust with an immediate £500,000 in interim damages ahead of the final settlement.
Although it was agreed as part of the case that the boy would have suffered no neurological injury had he been born up to two days earlier, the Trust denied the obstetrician carried out a scan at the antenatal clinic and the mother’s claim that she had raised concerns about reduced movement.
Following a three-day trial, the judge dismissed the Trust’s evidence and ruled that the mother’s account of what happened was correct.
Following the family’s victory in court, the boy’s mother said no family in their situation should be made to fight for so long to secure the help and support they need.
“It was nine years ago that we started our legal claim and it has taken years of fighting for justice and the support we need as a family,” she said.
“Right to the end the Trust opposed everything we knew had happened, knowing the difficulties we have faced for 17 years, and our son will continue to face for the rest of his life.
“We still had to go to court and see the Trust, and the obstetrician, deny giving me advice which we now know led to our son being born as he is, and have the immensely difficult life he has.
“For the Trust to go to court and basically accuse me of lying I thought was appalling. I wish they could live a day in our shoes to see how difficult life can be bringing up a child who is so severely disabled and in need of 24-hour care.
“Families should not have to fight years for justice when medical errors cause life-long harm to their babies.”
Many attempts were made to settle case earlier and out of court
Hudgell Solicitors’ Chris Moore, represented the family in the case and, following an initial period of investigating the matter, first issued a claim for damages from Nottingham University Hospitals NHS Trust in 2016.
The Trust denied liability from that day onwards and following an indication that no offers of settlement would be made at any stage, legal aid was obtained to launch court proceedings.
Mr Moore said: “All reasonable attempts to compromise and settle the claim were resisted by the NHS Trust throughout our time representing the boy and his family, and in that time, life became increasingly difficult for them all as he reached teenage years.
“We were prepared to agree sensible figures out of court which would have covered lifelong care and support because that money would still have made a massive difference to the boy.
“We see too many cases such as this where a defendant Trust simply closes its eyes to what actually happened, and in this case I am sure they hoped that with repeated denials that we would go away. That would have left this boy and his family with no support, and crucially no future care for him when he is an adult.”
Judge’s ruling paves way for dedicated, life-long package of specialist care
Following the court judgement Hudgell Solicitors, who have acted on behalf of the boy and his mother for nine years, have been able to start the process of securing a complete package of support, starting with the appointment of a dedicated case worker, who will assess the boy’s immediate and longer-term needs.
Dedicated specialists will be employed, using the compensation settlement.
“It is all a bit surreal to think we are now suddenly going to start getting all the help we need, but the most important thing for me is knowing he’ll be cared for, for the rest of his life,” the mother said.
“Given the years we have had to fight for this result I wish we’d acted much sooner, and I’d say to any other parent to get legal advice immediately if you have a child born with a brain injury and you’ve got suspicions things weren’t right.
“It’s a shame that people don’t admit mistakes when so much is at stake for a family. It impacts on the entire family every day, for the rest of their lives.”
Baby didn’t reach key milestones in first year
Following the boy’s birth in 2004, the mother says her baby was not meeting expected milestones in his first year and so she arranged for him to have an MRI scan, with the findings being that he had asymmetric quadriplegic cerebral palsy.
“He was my second child so I had some idea about how babies develop and that he wasn’t meeting the milestones. He cried a lot and wasn’t sitting up or rolling over and making no sounds to speak,” she said.
“The diagnosis was still a shock to us, even though the neonatologist told us when he was born that he could be brain damaged. We always felt something had gone wrong but didn’t think about taking legal advice at first. You have so much to deal with at that time. We didn’t know where to start.”
Family faced constant battle to secure help and funding over 17 years.
“It took until he was 14 though to get the funding approved for a downstairs bedroom to be built in our home, so for 14 years we have had to carry him up to bed at night and downstairs in a morning, and that is difficult as he’s not like healthy children who wrap their legs around you.”
The mother says life caring for a child with 24-hour needs, with little support, is ‘constantly draining’.
“You almost feel awful saying it because, of course you love your child so much, but it is so tough and draining. There is never a break,” she said.
“In 17 years we’ve only ever managed to have a few short breaks rest when my parents (who are now reaching their 80s) and a friend, have looked after him for us. It’s too much to ask of them now though.”
The mother praised Mr Moore for his continued support in seeing through their case to victory.
She said: “I know people will see the value of the potential final settlement and think it is a lot of money, but this will be money to provide the care our son needs, helping us give him the most comfortable life now, and crucially ensuring he has 24-hour care when we are not around in the future.
‘It’s one of the biggest clinical negligence cases this year‘
How Hudgell Solicitors won up to £20m in damages for mother and son
The 17-year-old boy was represented by Hudgell Solicitors’ joint head of clinical negligence Chris Moore, who took the case to trial despite continued denials of any wrongdoing by the Trust over many years.
Chris answers some the questions he has been asked about the case and the significance of the ruling
Why was this a significant victory?
It was significant because it is a high value claim involving a child who suffered a significant, life-long brain injury and he will be dependent on care and help for his whole life.
It is legally significant because very few clinical negligence claims proceed to trial, the vast majority will settle before or during legal proceedings. Cases of this value and magnitude proceed to a final trial even less. So, for the claimant to prevail and receive an award in his favour is of great significance.
It is one of the biggest clinical negligence cases this year and I believe the biggest following a trial in terms of the value
What was it about the case that made you determined to see it through?
From the very beginning when I first saw my client, the mum of the injured boy, there was a conviction about her evidence that made me believe in her case. She was adamant throughout about what happened and when we got the medical records everything was consistent.
This was a case that was never going to be about expert evidence and it was a combination of my experience and belief in what my client was telling me that made me feel we can win.
The defendant was insistent that the judge would not rule in your favour – why did you see it differently?
The defendant and the NHS trust’s evidence was based on what they had hoped had happened at the time. But this was a chaotic clinic that my client visited and what the trust hoped had happened in terms of professional care simply didn’t take place.
As said previously I believed in my client and her account was consistent throughout.
Was there a time when you and the family thought it would be best to settle out of court?
We were prepared to agree sensible figures out of court which would have covered lifelong care and support and potentially not cost the NHS as much as it is expected to do now because that money would still have made a massive difference to the child.
We were looking to settle all along for the difference an earlier settlement would have made, but the defendant made us prove our case, which they are entitled to do. Having rejected our offer of settlement, the NHS will ultimately have to pay additional damages and costs.
Why then did the judge rule in your favour?
Looking at his judgment he preferred the evidence of our client and he acknowledged that she had been consistent throughout. He also noted that the medical records supported her initial statement.
He was impressed with our client’s evidence and consistency and by contrast he said the doctor’s evidence had to be treated with great caution because of inconsistencies that came out during cross examination.
What has been the family’s response to the win?
The child is now seventeen and there is great relief that he and his family have got justice, they have been vindicated and the award is going to make such a great difference. The family is grateful that we believed in them all the way, we kept fighting for them and kept their spirits up when it felt we were getting nowhere in the face of intransigence.
It was a nine-year battle, what have you learnt from it?
We don’t have many medical negligence trials now and the only surprise was that the defendant resisted our overtures to settle out of court.
The trial reinforced the need to analyse and scrutinise all the evidence. That was really helpful in this case as we were able to highlight inconsistencies within the witness statements which helped prove our case.
There will be other families out there with similar serious clinical injury cases – what would your advice be in the face of a long legal battle ahead?
Get legal advice from specialist medical negligence solicitors, Hudgell Solicitors has a proven track record. Also trust in your legal team and try and keep the faith because even if you don’t have to take the case all the way to trial you may face a long battle to prove your case and/or persuade the defendant to consider a settlement.
This article was produced by Hudgell Solicitors
Brain Injury Group member firm Hudgell Solicitors are ranked in The Times 200 law firms listing and are experts in birth negligence. Negligent care during pregnancy and birth can have a lifelong impact on mothers, babies and their families.
When this happens, families have questions and deserve full answers. If avoidable errors have been the cause, they are also entitled to compensation and support.
At Hudgell Solicitors, we have supported hundreds of families affected by birth negligence, providing them with expert legal support to question and challenge the care provided. We have secured damages to compensate for the impact it has on their lives.
Hudgell Solicitors are based in Manchester and Hull and can act for anyone in England and Wales.
How can Brain Injury Group help?
Brain Injury Group is a network of approved personal injury solicitors with brain injury expertise. Moreover, our member firms have the complex injury experience to get the best possible rehabilitation and compensation for brain injuries.
Brain injury rehabilitation is important; to us, to our members, to you and towards getting the best outcome. We can help get you that best outcome. Get in touch to find out more from our brain injury experts.
