This was a claim for clinical negligence leading to cerebral palsy. The likely value is in the range of £3 million but this hearing was just to establish issues of blame. Our claimant, suffers from cerebral palsy. He has spastic quadriplegia, general development delay, visual impairment and gastro-oesophageal reflux as a consequence of lack of oxygen just before his birth.

This was his mother’s fifth pregnancy. In the third pregnancy, three years before, a scan taken in mid pregnancy had revealed a fibroid on the wall of the uterus. As a result of this fibroid, the head of the foetus was unable to engage into the neck of the cervix, but it did however correct itself 37 weeks into the pregnancy and she went on to have a normal vaginal delivery.

Her next, fourth, child was born in November 1998. The records of this pregnancy make no reference to a fibroid.

In this fifth pregnancy, when she first attended the midwife for her booking appointment, it seems that her previous obstetric records were not available. The Hospital Trust argued that this was standard practice. She had a scan, but the fibroid was not detected. However, the ultrasound experts who attended the trial agreed that a sonographer is unlikely to find a fibroid unless they are looking for it.

The claimant’s ultrasound expert did, however, suggest that, at the time of booking, the fibroid would have been actually larger than the foetus and so should have been seen by a competent ultra-sonographer in any event.

The pregnancy continued and she attended a hospital appointment on 11 August 2000 when the lie was again oblique. Another ultrasound scan was performed and the foetus was noted to be foot down, which is a dangerous position for a natural birth.

She was told to return for another appointment on 18 August 2000, which she did. She was seen by a senior house officer, who again noted that the baby was lying across the abdomen. We now know that the reason for this was that the fibroid was preventing the head from engaging. She was again sent home.

An ultrasound scan was also done before she was discharged but again this did not detect the fibroid. It is the claimant’s case that it should have, but also that she should have been admitted at this time. She was 37 weeks and five days into her pregnancy.

The literature states that a persistent transverse lie, at this stage of pregnancy, should result in consideration of inpatient admission to monitor the pregnancy.

The reason for this is that there is a risk of cord prolapse. That is, the umbilical cord could fall down into the cervix. Any change in temperature in the umbilical cord can result in the oxygen supply being cut off to the foetus and therefore a risk of injury or death to the foetus.

Early in the morning of 22 August 2000 at 2.45a.m., She awoke and thought her waters had broken. However, she then realised that she was bleeding and had passed a large amount of blood. She had actually suffered a placental abruption. An ambulance was called and she arrived at the hospital at 3.35a.m. The baby was born by an emergency caesarean section operation at 03.58. He was in poor condition.

The defendant had previously admitted in the course of the case that, if the claimant had been born before 03.38 he would have been uninjured. After the caesarean section, she was found to have a cervical fibroid measuring 6cm by 6cm.

The defendants argued that there was no reason to admit her when she attended the hospital on 18 August 2000, and it was not negligent for the clinicians to have failed to diagnose the fibroid. It was the claimant’s case that the fibroid should have been detected and, had it been diagnosed, the clinicians would certainly have admitted her on 18 August 2000.

Had she been in hospital at the time of the placenta abruption, he would have been delivered before 03.38hrs and would therefore have avoided his injuries.

The defendant argued that it was not standard practice for a woman’s previous obstetric records to be made available. The Judge was very critical of this practice.

He also found that, given the risk of injury to the mother and foetus, she should have been admitted on 18 August 2000.

The defendant submitted that, even if negligence were established, they were not liable to pay compensation because the claimant’s injury was not reasonably foreseeable.

They argued that his injuries were caused by a mechanism that was not within the contemplation of those caring for her because there was a foreseeable risk of umbilical cord prolapse but not of placental abruption.

The Judge found that the consequence of the negligence was foreseeable even if the mechanism bringing it about was not. The actual injury was caused by lack of oxygen. This would have been the same cause of the injury if there had been a cord prolapse.

6 May 2008,