Landmark court ruling: Confirmation that mother of brain-damaged baby is primary victim

YAH v Medway NHS Foundation Trust [2018]

Richard Money-Kyrle represented the mother of a 5-year-old girl who was brain damaged 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 Richard successfully took to trial.

The circumstances of the case

The baby’s delivery had been 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 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 has this case attracted 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, the worry of not knowing whether her baby would survive, and the strain of looking after the severely disabled child 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.

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 ‘secondary victims’ are required to do by law. Although our client’s experiences during and after labour were shocking and traumatic, they did not constitute the ‘nervous shock’ that is needed to satisfy the 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. If the mother of the unborn child who was injured as a result of the negligently managed labour was merely a ‘secondary victim’, in these circumstances she would not have been entitled to compensation for her own psychiatric injury.

The trial judge awarded our client just under £76,200 for her injury.

If you are caring for a child with cerebral palsy or other birth-related neurological disability, contact us by email on claimsadvice@boyesturner.com.

The service was personal, professional and considered. I was treated so kindly and in the end I knew that not only had I found the right organisation but also the right person.

Boyes Turner client

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