Full pre – issue admission of liability secured in failed intubation Cerebral Palsy Case

12th April’19 – Our client, CP (aged 31) from Ramsgate, Kent, gave birth to her son, MJ, at Queen Elizabeth, Queen Mother Hospital, Margate on 8th July 2012.

This was her first pregnancy, she was classed as ‘low ‘risk, her ante natal care was all midwife led and she progressed to full term without complications at any point.

During labour, however, at the point of delivery, shoulder dystocia was encountered. This is a complication at birth where the baby is obstructed in the vaginal canal due to their shoulder being lodged in the mother’s pelvis.

The baby was successfully delivered quickly just before 5am on the 8 th July 2012.

He had difficulties breathing, however, due to the presence of thick meconium (a newborn’s earliest stool).

The Paediatric Registrar in attendance sought assistance from an Anesthetist and a Paediatric Consultant whilst oral suction of MJ was started using a bag and mask.

A staff grade Anesthetist arrived and intubation was attempted using an endotracheal tube (ET) at 5:20am. Unfortunately, the ET was wrongly inserted into MJ’s oesophagus instead of his trachea. The Anesthetist did not realise this despite MJ’s heart rate deceasing and a reduction in his oxygen saturations.

It was only when the Consultant arrived, an hour after MJ’s delivery, that he removed the ET and re positioned it correctly. However, by this time MJ had suffered a profound hypoxic ischemic insult resulting in permanent neurological damage. He has quadriplegic mixed dyskinetic and spastic cerebral palsy.

MJ would have been born without any brain injury but for the negligence.

Instead, MJ’s cerebral palsy means that he has profound neurological disabilities including difficulty with balance and muscle tone so that his ability to initiate and control his movements are severely impaired.  He requires a wheelchair or a walker to mobilise. He also requires assistance for activities of daily living.

Fairweathers were instructed by MJ’s mum and Litigation Friend CP to act on his behalf in August 2013. Legal aid was secured from the Legal Aid Agency to investigate the case.

Expert evidence was then obtained from a Consultant Obstetrician, Consultant Paediatric Neurologist and Consultant Neonatologist. All these experts were supportive of the Claimant’s case and confirmed that the hospital’s care had fallen below an acceptable standard.

A leading barrister (QC) was instructed and a formal Letter of Claim sent to the Defendant Trust (East Kent Hospitals University NHS Foundation Trust) which manages and controls the Queen Elizabeth Queen Mother Hospital.

This was an extremely detailed and robust letter, setting out the factual circumstances of the claim and why, based on our expert evidence, the hospital was at fault in the care that they gave to MJ.

The Defendant has now answered the claim, as of March 2019, by means of a formal Letter of Response under the Clinical Negligence Pre – Action Protocol.

They have confirmed that they were negligent in failing to realise that the ET had been misplaced and reposition it.

Had this been noticed and rectified, the severe injury to MJ would have been entirely avoided.

Instead, MJ suffered the hypoxic brain injury in respect of which they are liable to pay compensation in full.

Liability having been admitted, the case will now proceed to assess its value. A substantial interim payment has been requested and expert evidence is being obtained to support the various heads of claim to be pursued on behalf of the Claimant.

No level of compensation will ever alter the tragic circumstances of this case whereby wholly inexcusable and basic errors have left MJ with lifelong disabilities.  It will, however, help to meet the needs of MJ and his family and to make their lives easier in the years to come.

Kate Kennell, Solicitor who has conduct of the case said: “Fantastic news that the Defendant has admitted 100% liability in MJ’s case. I know that it will be a bittersweet victory for his mum. A huge relief that compensation is to be paid on the one hand. But mixed with great sadness at having it formally confirmed that what happened was indeed unacceptable and avoidable negligence by the Trust as she has always maintained. I am keen to move forward with the claim for MJ and his family now so that they can use the compensation to be received to support and help MJ reach his fullest potential

If you or a member of your family believes you have a claim then please do not hesitate to phone us free on 0800 999 5585, request a call back or submit your case details.