Liability settlement for child left with a brachial plexus injury during delivery
Arti Shah recently secured a 79% liability settlement on behalf of Joe*, in respect of injuries to his shoulder sustained during his delivery at University College London Hospital (UCLH)
Joe's mother was assessed to have a high-risk pregnancy due to multiple factors. She was not advised of the risks of a vaginal birth in comparison to a planned Caesarean section if it was suspected that she was going to have a large baby, either during midwifery appointments, or once labour commenced. It was her evidence that had she been told either in the antenatal period, or been offered a Caesarean section due to slow progress during labour, she would have proceeded with an elective Caesarean section.
She had a difficult labour, with slow progress, and a decision was made for a trial of forceps in theatre. During delivery, shoulder dystocia was identified, and Joe's mother had to be placed in the McRoberts position to facilitate delivery. It was argued that excessive traction had been applied, resulting in Joe's anterior shoulder becoming impacted, and causing a brachial plexus injury to his (later identified as dominant) arm. Joe was delivered in poor condition with the cord around his neck, and had to be immediately transferred to the resuscitaire, where he required emergency neonatal input.
It was the Claimant's case that:
- If his mother had been given the option to have a Caesarean section, she would have elected to do so, thereby avoiding forceps delivery and shoulder dystocia
- If reasonable care and skill had been undertaken during delivery when the shoulder dystocia was identified, he would have avoided his brachial plexus injury
The Defendant denied liability in its Letter of Response.
Proceedings were issued and served, and the Defendant provided a Defence denying liability in full. At the same time, it made a time limited offer of liability settlement, which was swiftly rejected.
Shortly before exchange of expert evidence, the Defendant changed Counsel and invited the Claimant to an RTM. At the RTM, the Defendant advanced an alternative theory to that set out in its Defence, which it had not provided in advance. The RTM was adjourned to allow the Claimant's team to obtain their expert views on the amended theory. They remained supportive of the case.
At the reconvened RTM, following multiple rounds of negotiation, a liability settlement was agreed at 79% of the full value of the claim, which is yet to be assessed. As Joe is a minor, Court approval of the settlement was required, and this was recently approved, together with an anonymity order preventing Joe from being identified. An interim payment was also agreed to allow Joe to receive appropriate treatment, including therapies, whilst the case is fully quantified.
After the hearing, Joe's mother said:
"When we first met Arti, even just the way she greeted my son, we knew she cared and it wasn't just about the case for her. It felt right to go with her, we knew she would fight for him and so SHE DID!!!
Arti and her team have been absolutely brilliant and so supportive!"
Joe's injury is permanent, with significant nerve damage to his arm. He underwent a surgical release procedure for contraction in his shoulder, but despite this, and regular physiotherapy, it has persisted. He has difficulties with activities of daily living, and he may require further surgery in the future. He is also likely to be disadvantaged on the labour market.
Quantum investigations are now ongoing, and further Court Approval will be required in due course when this is resolved.
With thanks to Jonathan Bertram at 7 Bedford Row, who has remained Counsel throughout this case.
*name changed
Contact us
For further information about birth injury claims and medical negligence compensation claims, please call Arti Shah on 03304606739 or email arti.shah@fieldfisher.com.
Alternatively
- You can speak to our medical negligence lawyers on freephone 0800 358 3848
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