Family Receive Life-Changing Compensation for Injuries at Birth

Family Receive Life-Changing Compensation for Injuries at Birth

Dean Leonard Wingate was born 20th July 1987 by caesarean section.  His mother had pre-eclampsia in her first pregnancy and her baby was small. Mrs Wingate was a lady who suffered from severe hypertension and was on medication for this during both pregnancies.

Dean was diagnosed with cerebral palsy during the first year of life. 

His parents first noticed there were problems with his development at the age of about 3 months and by 5 months the consultant paediatrician was concerned about his development. 

Dean has cerebral palsy affecting all four limbs and is confined to a wheelchair.  His right arm is essentially normal but his left arm is very weak, his legs are profoundly weak with bilateral foot drop. Cognitively he is essentially spared but has memory and concentration difficulties from time to time. Dean became a full time wheelchair user following surgery on his legs at the age of 12. 

Dean had a difficult time throughout his school life. He wanted to go to a special school which catered for his physical disabilities but was not within the appropriate catchment area. He therefore went to mainstream school where he had little assistance a real lack of understanding from teachers and pupils alike. He was one of only two disabled pupils within the school. He struggled throughout his school years and says he feels let down by the education system.  This was a period when he was having problems coming to terms with his disability. Unfortunately, his problems with education continued through college. He describes himself as a very angry young man during this period.
 
Dean currently volunteers as a hospital radio presenter. He enjoys the sport of Boccia and until this year was the North Eastern Champion. 

The Claim

Dean’s mother had a family history of diabetes. At the time of booking her second pregnancy with Dean both her parents and her younger brother were diabetic. In addition, the Claimant’s mother suffered from severe essential hypertension  and took Aldomet (Methyldopa) throughout her first pregnancy and again throughout her second pregnancy. She was therefore on any view a high risk pregnancy.

Mrs Wingate admitted herself to hospital as an emergency on Saturday 4th July 1987 when she was 34 weeks and 5 days pregnant. CTG tracing was carried out and Mrs Wingate was then reassured and discharged. Our experts advised the trace was not reassuring and she should have been kept in hospital. She attended for follow up on the 14th July 1987 at 36 weeks and 1 day pregnant and everything was found to be normal but no CTG was performed.

She again admitted herself to hospital on Sunday the 19th July 1987 with diminished foetal movements.

Dean was born at 2.17 hours on the 20th July 1987 by caesarean section a decision having been made at 01.15 hours.

Issues in the case related primarily to the Defendant’s failure to carry out a glucose tolerance test on the basis of Mrs Wingate’s family history of diabetes. It was the Claimant’s case that if a glucose tolerance test had been carried out then in all probability this would have shown that Mrs. Wingate    was suffering from gestational diabetes. In actual fact Mrs Wingate has gone on to be diagnosed with diabetes and indeed at birth Dean was described as “cherubic” and  was a very big baby given his gestational age. He suffered hypoglycaemia shortly after birth.

It was alleged that Mrs Wingate should have been admitted to hospital, monitored and observed  on the 4th July 1987.  She would have already  had a glucose tolerance test and diabetes would have been diagnosed. This,  in combination with her maternal hypertension (which was severe), made her a high risk patient and this was a high risk pregnancy so there was no reason to discharge her home. The Claimant’s obstetric expert supported the view that she would have been monitored regularly and that on that basis in all probability her condition would have deteriorated because the placenta was failing due to the combination of diabetes and maternal hypertension and Dean would have been born at a much earlier stage. 

One of the complicating factors in the case was the fact that Dean’s brain damage is  periventricular leukomalacia (PVL) and generally this appears between the 26th and 34th week of pregnancy though it can be seen at full term.

Other complicating factors in the investigation of the case were the fact that there were records missing most particularly the CTG traces on admission on the 19th July 1987.  Though there were notes in the records confirming that CTG traces were carried out shortly after admission and that they showed a foetal “tachycardia”. This was crucial to the case because the causation expert was clearly of the view that this was a baby that was compensating in a hypoxic environment. If we had had the traces to study and consider and track any deterioration then it would have been far easier to have pinpointed when a decision to deliver should have been made following admission on the 19th.

Previous Solicitors

This case had been investigated by previous solicitors who were first consulted in 1992.  Unfortunately they were not Panel solicitors nor recognised clinical negligence experts.  At that stage Dean was just less than 5 years of age.  An initial obstetric report was obtained in September 1993 over a year later and then for some reason a second obstetric report was obtained 3 years after that.  It was not until May 1997, 5 years after initial instruction, that the solicitors instructed neonatal experts and a report was not received until October 1998.

At no stage from birth to 2002 had an MRI brain scan been performed.  Attempts were made by the previous solicitors in August 2002 to arrange an MRI scan but they foundered.

A further 2 years passed until December 2004 when the previous solicitors simply requested discharge of the Certificate and advised Dean and his parents that there was no prospect of proceeding with the claim.  There had been no conference with any of the experts at any point.

Their investigations over a 12 and a half year period were very limited and having considered the file it was quite clear that they had no real direction or understanding of the issues involved in pursuing a case of this severity.

Solution

There were many problems in advancing the case once we took control of it.  The solicitor involved first read the file in April 2008 and realised that it was necessary to instruct the experts very quickly, to arrange for an MRI scan and to establish whether or not Dean had capacity to litigate because he was going to be 21 years of age in July 2008 some 3 months later.  The first conference took place on the 24th June 2008 following an MRI scan on the 14th June of that year.  At that conference the original obstetric and neonatal experts instructed in the case were present and it was clear that the obstetrician was not supportive of a case.  The neuroradiologist instructed to perform the MRI scan and report on it in 2008 was equivocal in his opinion and had clear views in relation to periventricular leukomalacia saying that in his experience  it very rarely appeared later than 34 weeks and when it did there were other signs.  At one point during the conference he actually said that PVL cannot occur after 34 weeks.

On that basis there were further discussions at the conclusion of the conference between Queens Counsel and the case handler and it was decided that there was a clear argument for involving another obstetrician and proceeding to investigate further.  The previous solicitors had already had 3 obstetric experts involved in the case, two of which were supportive and the remaining one was not.   (The original two experts were not available as one had died and one discredited).

Queens Counsel advised that the case had a 60% chance of succeeding on liability and we requested an extension of the Certificate to allow proceedings to be issued.

A Letter of Claim was sent in October 2008.   We also instructed Dr Brian Kendall, consultant neuroradiologist,  in place of the original neuroradiologist because we wanted his specific opinion on PVL and it’s late onset.  That provisional opinion was available in January 2009 and his final opinion in July 2009 which supported the view that damage occurred close to birth (directly contrary  to the original neuroradiological opinion). 

We had to have a number of conferences in this case to try and tease out the issues in relation to both breach of duty and causation because they were very complex and difficult. 

In view of the complexity of causation it was not possible to finalise our case on this issue until quite late in the day. 

In May 2010 at the Defendant’s request the Court ordered that the case be listed for a full Trial on all the issues, both liability and quantum in February 2011.  At that stage we had no evidence at all on quantum issues because our concentration had been on establishing  liability and causation.   We therefore had to work up the quantum aspects of the claim in a very short space of time ready to serve our schedule and supporting documentation by 20th September 2010.

We then had to apply to the Court to amend our Particulars of Claim and that resulted in a contested hearing because the Defendants objected.   We succeeded on our application and amended our Particulars of Claim and served them in July 2010.

A joint settlement meeting took place on the 14th January 2011 by which time all the liability and causation joint expert meetings had taken place.  Both sides' experts had essentially stuck to their position and therefore as far as we were concerned we were heading for Trial on 14th February 2011. 

The Defendants offered £1 million all inclusive at the joint settlement meeting and then increased that offer to £800,000.00 lump sum plus £40,000.00 per annum by way of periodical payments for life which we discussed with the Claimant and which has been accepted.  The potential full value of this case if we had succeeded at Trial was £5 million. The risk, however, of achieving nothing was significant and probably our chances of success were only just over 50% by this point.

What difference will this money make to Dean?

Dean Wingate has spent the whole of his 23 years with assistance from  his supportive family.  His mother has suffered a heart attack in addition to her  high blood pressure  and has diabetes. She and Dean lost Dean’s father to cancer in December 2008 and have continued to manage  on their own ever since. There is statutory provision but in the local region this is very limited.  The house in which they live has been adapted but Dean’s bedroom is still not big enough for a double bed and there is not room to walk around his bed.  His computer is housed on a computer table in the hall leading from his bedroom.  He has a motability vehicle but he and his mother are unable to drive, so he relies mainly on taxis.

Dean is a wonderful example of a person coping very well with his disability.  He volunteers at hospital radio and has been a regular volunteer at the Stroke Association.  He is very keen to find gainful and interesting employment  on either a vocational or remunerative basis.  He is very keen on sport and has been the North East Boccia Champion.   He would like to compete at international level if at all possible.

The lump sum will allow him to buy a suitable property to adapt and provide a granny flat for his mum and accommodation for carers which he clearly needs overnight.  It will also give Dean and his mother peace of mind for the future as the £40,000.00 a year will assist in providing care and case management, a support worker when needed, essential holidays, equipment and transportation.  It will not do all the things that we had hoped the money could do for Dean but it will make a significant difference to his life.

The point is that Dean could not have brought this case without public funding.  This is exactly the sort of case which would be too risky to take on  a Conditional Fee Agreement, not least because the disbursements in the case total in excess of £100,000.00

If you or a loved one has suffered as a result of a birth injury, we may be able to help you claim compensation. See our Medical Negligence Guide for more information.

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