£26.3 million settlement in birth injury case at Derby hospital

Mark* was born premature and by caesarean section at Derby City hospital and was immediately admitted to the Special Care Baby Unit. He suffered respiratory distress syndrome and then hyperbilirubinemia. Also known as jaundice, this condition sees elevated serum bilirubin which can lead to neurological damage, including hearing loss.

There was a delay in treating Mark for the jaundice and when he was discharged from hospital, he was eventually found to have intermittent hearing loss due to Auditory Neuropathy Spectrum Disorder (ANSD). Mark's mother was given the news of his deafness over the telephone and offered no support, so she had to use the yellow pages to find someone who could provide help and advice.

Mark's hearing loss was intermittent at first, although it is now permanent. This meant that the diagnosis was confused, and it was difficult to find suitable hearing aids. A firm diagnosis was not made until Mark was aged 4. By this time, he had missed out on a lot of communication support, vital in the early years of a child's development.

In addition to deafness Mark, who is now a young adult, has significant neuro-cognitive deficits, with very low adaptive skills. This was not however appreciated fully until relatively recently. Sadly, he will never be capable of living independently without support.

Having previously instructed another firm in the medical negligence claim against the Trust, Mark's mother changed representation and instructed Claire and the team at Fieldfisher ten years into the proceedings. This was after the previous solicitors had obtained judgement for liability at 85% of the full value of the claim in favour of Mark, but in relation to deafness alone.

Once instructed, Claire obtained evidence from a neurologist which proved that sadly, Mark also had cognitive brain injury caused by the untreated jaundice he suffered as a baby, in addition to the hearing loss. This caused him to have learning difficulties more serious than those he would have experienced due to his late acquisition of language due to his hearing loss alone.

Claire was eventually able to get the hospital's legal team to agree that the pleadings in the case could be retrospectively altered to include the additional brain injury in his compensation claim, so that compensation would be paid for all the injuries Mark had sustained and not just the hearing loss, but still at 85% of the full value. This meant that the compensation paid at the conclusion of the case, would be very much higher than would have been paid if the previous solicitor had settled the case for the deafness alone.

An assessment by paediatric neuropsychologists concluded that Mark's intellectual functioning is significantly impacted by his deafness, anxiety, and difficulties with memory. He currently lives with his mother, her partner, and his siblings in rented accommodation, which will not be suitable for his needs long term.

Mark needs a lots of emotional support from his family due to the difficulties he faces in daily life. His mother says that his fluctuating high anxiety is one of the most debilitating issues he faces. He communicates using a mixture Sign Supported English and British Sign Language, which his family have made efforts to learn.

Mark eventually obtained a Functional Level 1 qualification in English, having received a lot of support to achieve this. He has a girlfriend and a group of friends, who are also deaf, and with some limitations can do activities with them. He is a hearing aid user and is waiting for an appointment for a cochlear implant assessment. He now has a full therapy and support team.

Claire and the team managed to reach a settlement and secure a significant sum on behalf of Mark in compensation for all his injuries. He has been awarded a lump sum of £5.75 million and will receive index linked annual payments for care, every year for the rest of his life rising to £282,520. This is equivalent to £26.3 million over his lifetime or nearly £31 million at 100% valuation. This will help his family to be secure in the knowledge that Mark will be supported by his team in the future. Up until now his mother has sacrificed her career and dedicated her life to supporting him on her own.

This will enable Mark to move into his own accommodation with the help of care team and continue with the various therapies he needs to live life to the fullest.

*name changed

Contact us

For further information about birth injury claims and medical negligence claims, please call Claire Horton on 0330 460 6748 or email Claire.Horton@fieldfisher.com.

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