McLaughlin & Riordan are experienced in handling such claims. Some scenarios have included a range of alleged failures on the part of:
- nursing staff to notice and respond to “warning signs” of foetal distress, including those shown on the CTG trace;
- junior medical staff to summon Consultant advice and assistance in relation to induction of labour, failure of labour to progress;
- junior medical staff to properly manage and deliver a breach presentation by vacuum extraction;
- a consultant obstetrician & gynaecologist to properly manage and treat gestational diabetes;
- systems and communication between hospitals regarding the delay in transfer of a patient for emergency caesarean section;
- neonatal medical staff in diagnosis and treatment of hypoxic ischaemic encephalopathy in the newborn.
Generally speaking, a successful claimant is required to establish that there was a breach of duty in the manner in which the labour was managed and that this breach actually caused the “cerebral palsy.”
A number of different expert opinions are required to determine the liability issues in dispute and assess the merits of the claim:
Obstetrician & Gynaecologist: to advise as to the standard of care required and to identify any breaches
Paediatric Neuro-radiologist: to advise as to the nature and timing of brain injury, (eg indicative of maldevelopment during the first or second trimester of pregnancy; indicative of hypoxic insult to a mature foetal brain, etc)
Neonatologist: to advise as to the condition of the baby at birth and whether there were signs of hypoxia, acidosis, hypoglycaemia and the state of evolution of other conditions that signify a recent hypoxic insult to the baby i.e. during the labour, or before the labour;
Paediatric Neurologist: to confirm the diagnosis; i.e. the specific type of cerebral palsy suffered; eg diplegia, spastic quadriplegia, etc, as different types of cerebral palsy may be associated with different causes, many of which are not attributable to “birth asphyxia”.
Before such expert opinions are sought, it is important to obtain detailed discovery, including copies of all clinical records, (any previous pregnancies and confinements, the pregnancy, confinement and neonatal treatment in question), antenatal ultrasounds; neonatal cerebral ultrasounds, CT scans and MRI’s; and a paediatric cerebral MRI. Clinical records of the pregnancy in question may also include GP records, hospital out-patient records, and private O&G records.
Often, the clinical records may not contain various facts alleged by the claimant, and this may be the focus for interrogatories, and the formulation of statements of assumption that may lead to primary factual disputes when the validity of the expert opinion/s expressed is dependent upon whether the assumptions are accepted by the Court.
In addition to the liability evidence to be obtained in these cases, is the issue of quantifying the “catastrophic injury” claim. This most importantly involves expert evidence addressing the issue of life expectancy, and also addressing the multiple heads of damage which usually include: non economic loss, economic loss, requirement for equipment, pharmaceuticals, medical and allied healthcare, housing and motor vehicle modifications, nursing and domestic assistance, assessment of past voluntary services, additional holiday expenses and funds management.
Depending on the issue of life expectancy, successful claims (and settlements) may easily reach or exceed $12million, not including legal costs. Accordingly, it is important to manage such claims promptly by seeking to obtain detailed and quality expert evidence as to liability, with a view to formulating a cost effective resolution strategy.
The challenge to obtain a cost effective outcome can be more difficult when there are multiple defendants to the claim. However, we hold to the belief that adopting a pro-active approach to investigating the claim