I am asked to approve settlement of this claim which has been reached after two days of evidence [1]
On the date that C was delivered her mother was admitted for induction of labour, having reached 12 days post-term and after the induction failed, the D carried out an artificial rupture of membranes. Unfortunately, the physiological position was that there were fetal blood vessels in the membranes in a condition known as the velamentous insertion of the cord, or vasa praevia. The result was that with the artificial rupture of membranes there was a calamitous haemorrhage which resulted in an acute, profound hypoxic ischaemic condition, which after ten minutes led to progressive brain injury. [3]
D reacted with commendable speed in carrying out a Caesarean section, but unfortunately the delivery of PQ by Caesarean section was not in time to avoid all injury, but the actions of the trust will have almost certainly saved her life [4]
The burden of the liability trial, which I have heard over the last two days, has focused on whether D should have proceeded to a Caesarean section on the basis of the cardiotocographic trace which started at 16.51 on 21 August and, if so, whether in association with delivery by Caesarean section there would or should have been an artificial rupture of membranes in any event. [5]
If artificial rupture of membranes were carried out in any event, then the injury almost certainly could not have been avoided. It was C’s case that, given the stage of the mother’s progress, namely she was still not in established labour but her cervix was only 2 centimetres dilated, there would have been no purpose in carrying out ARM because it was not feasible that this mother, with her lack of progress, would ever proceed to vaginal delivery. I heard evidence from expert instructed on behalf of C that in his view D should have proceeded straight to a Caesarean section without ARM and that the injury would have been avoided. [6]
I had yet to hear from D’s obstetric expert… it is his view, as disclosed in his report and in the joint expert report, that it was wholly reasonable for D to have carried out ARM and that would have been the case even if there had been a decision to deliver by Caesarean section.[7]
the settlement has occurred at a stage when the matter was wholly undecided in my mind [10]
I take the view that the decision to settle this case is a wholly understandable and reasonable one and that it is in the best interests of this child that I should approve this settlement. [13]
it might be thought that for an acute, profound hypoxic ischaemic injury of this kind a lump sum of £2 million is a low settlement compared to some of the settlements or orders or awards which have been made in other cases, there are a number of difficulties in this case even with the establishment of primary liability in relation to causation and those difficulties have been recognised by both the paediatric neurologists instructed for each side. This would therefore have been a difficult quantification because of the difficulty in distinguishing the parts of PQ’s condition which are the consequence of the acute profound hypoxic ischaemic injury sustained at the time of her birth and the parts of her condition which may be attributable to a congenital or genetic problem which she would have had in any event. [17]
In those circumstances… to settle for this sum of money is a reasonable course which should and does commend itself to the court and in those circumstances this settlement is approved. [18]
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