YAH v Medway NHS Foundation Trust [2018] Our birth injury solicitors represented the mother of a 5-year-old girl who was brain-injured at birth, in her own claim for the psychiatric injuries she suffered as a mother to the injured child during and after the negligently managed labour. Whilst the NHS defendant admitted liability for the child’s severe injuries, they contested the mother’s own claim, which we successfully took to trial. Baby suffers hypoxic birth injury and cerebral palsy after delayed delivery The baby’s delivery was negligently delayed for several hours when the maternity staff failed to take a fetal blood sample to check the baby’s condition after the CTG monitor showed abnormalities in the fetal heart rate. If they had carried out the blood test, the result would have prompted an urgent caesarean section, which would have saved the baby from two hours of further chronic partial oxygen deprivation and acute hypoxic ischaemia in the final minutes before birth. The baby suffered cerebral palsy and is severely disabled. She has epilepsy, visual impairment, feeding difficulties, significant learning disabilities and will be totally dependent on others for all her needs throughout her shortened life. Her mother was aware that something was wrong when her baby was born in poor condition and was taken to the special care baby unit (SCBU) for therapeutic cooling and intubation. She saw her baby for the first time, the day after delivery, in a box, surrounded by medical equipment, tubes and monitors, but wasn’t allowed to hold her. She was told that her baby might not survive. Then over the next few months, as she gradually realised the severity of the injury that had been done to her child during the labour, she developed a psychiatric injury. Why did this case attract so much attention? The case attracted the interest of the media and the legal profession because it confirmed that the mother whose unborn child was injured as a result of negligence was a ‘primary victim’. Legally, she and her unborn child were one entity at the time that the negligence occurred. She didn’t lose her status as a primary victim when the baby was born and when the combination of the difficult labour and the worry of not knowing whether her baby would survive caused her to suffer a psychiatric injury. Why is it important that the mother was a ‘primary victim’? The defendant argued that the mother was not a ‘primary victim’ when she suffered the psychiatric illness during the baby’s infancy. At the time that the case took place, if the mother was not a primary victim, then unless she had also suffered physical injury, she would only succeed in her claim for compensation for her psychiatric injury if she could prove that it had been caused by ‘shock’ from witnessing the negligent events, as a ‘secondary victim’. Although our client’s experiences during and after labour were shocking and traumatic, they did not constitute the ‘nervous shock’ that was needed to satisfy the legal criteria for recovery of damages by secondary victims, as set out by the House of Lords in the Alcock v Chief Constable of South Yorkshire case (which concerned the psychiatric injuries suffered by witnesses of the Hillsborough disaster). Therefore, for our client to be entitled to compensation, it was important that she was found to be a primary victim. Since this case, there have been further changes in the law, which now makes it virtually impossible for ‘secondary victims’ to bring a claim for medical negligence for their own psychiatric or psychological injuries. This makes the finding in this case all the more important for mothers of unborn children who are injured as a result of negligently managed labour and delivery, by recognising them as primary victims with the right to claim compensation for their own psychological injuries. The trial judge awarded our client (the mother) just under £76,200 for her injury. The child’s claim arising from her cerebral palsy birth injury settled separately, for a sum exceeding £21 million. The family’s privacy is protected by an anonymity order. If your child has cerebral palsy or neurological disability as a result of medical negligence, or you have been contacted by HSSIB/MNSI or NHS Resolution, you can talk to a solicitor, free and confidentially, for advice about how to respond or make a claim by contacting us.
