Cerebral palsy resulting from the mismanagement of birth

This was a cerebral palsy case which resulted from the mismanagement of YM’s birth. This was a particularly long and protracted litigious case.

The Defendant strongly disputed liability throughout. We obtained several reports from Neuro-radiologist to Paediatric Neurologist, Neo-natology evidence and life expectancy evidence.

The Defendants filed a Defence and continued to contest liability up until exchange of experts’ reports. The Defendants had always led us to believe that they had favourable evidence and following exchange of reports, we disclosed 4 expert opinions, the Defendants only provided 1 which was clearly supportive of the Claimant’s case.

They then admitted liability and causation and the emphasis was then on quantum. We had to obtain several quantum reports from all disciplines as YM suffers from quadriplegia and is fed through a gastrostomy. There was a disagreement on life expectancy but following a joint meeting of experts, an agreed life expectancy was achieved however, due to the uncertainty of life expectancy periodical payments needed to be considered in this case and was one of the first cases to come to trial following the implementation of the new rules from the 1st April 2005. Periodical payments were advisable for YM and her settlement should be structured. The Defendants disputed quantum.

The Trial proceeded, however, a settlement was reached following the 2nd day of the quantum trial. Due to the scale of the periodical payments, YM was one of the first cases to argue that periodical payments should be indexed to an index other than RPI and this matter was left open and was being pursued as a triable action after the quantum Trial. Unfortunately, in late September 2005, the Claimant had to discontinue this part of the claim due to the fact that we could not, at that stage, find any other cases to join in with us and due to the cost of this area of litigation, the cost risk benefit to the Claimant was not in her favour.

Further, the Defendant had changed status and become a Foundation Trust and was unable then to give us the necessary security in relation to enforcement of the periodical payments should the Defendant Trust develop financial difficulties. We then had to institute proceedings against the Secretary of State for Health and this case was then eventually resolved in January 2006 whereby a precedent agreement was agreed with the NHSLA to be used in all cases involving periodical payments and Foundation Trusts. The case Kanu was joined in with our case as in their case their Defendant had applied for Foundation Trust status but our Defendant had already been accepted as a Foundation Trust case.

Due to YM being a child and patient the Court of Protection were appointed and initially YM’s mother was the Official Receiver. A professional Receiver has now been appointed to administer the settlement. Approval of the settlement was given by Master Lush and the settlement was approved by His Honour Mr Justice Forbes. A settlement was achieved in the global sum of £3,385,000.00 with periodical payments.

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