£1.1 million secured for long-running Erb’s Palsy injury claim

We previously reported this case some 4 years ago when liability (i.e. whether or not there was any negligence) was agreed on a 90/10 split basis in favour of our client, meaning that the Trust would be responsible for 90% of the value of the case once the value was assessed. This split was agreed solely due to the “litigation risk” of this factually complex case. We are now pleased to report that compensation has been achieved for £1.1 million on a full liability basis meaning our client has received £990,000.

Our client was a large baby, and prior to his birth, the staff at the hospital noted that there was a need to be alert for shoulder dystocia (where the baby’s shoulder gets caught under the mother’s pubic bone). During the labour, a ventouse suction cup was used to try and deliver our client, however, this came off during traction. Forceps were then used, but these would not lock and were abandoned. The ventouse was used a second time and the head was delivered.  At this stage, it was noted that our client’s arm was stuck, prompting the initiation of the Shoulder Dystocia Protocol. Various techniques were used to deliver our client which were eventually successful, however, he was unfortunately born with a severe left Erb’s palsy injury.

Our experts were critical of the hospital’s choices of technique and instruments used during the delivery. It is thought that the ventouse cup was inappropriately placed upon our client’s head and therefore his neck was most likely pulled in the wrong direction. Scientific studies show that the force generated during such births or attempts is consistent with forces known to cause brachial plexus damage. It was our expert’s opinion that had there been better placement of the ventouse cup at the first attempt it is more likely than not that our client’s injury would have been avoided.

After submitting our client’s allegations to the Trust responsible for his delivery, a response was eventually received which denied any negligence on behalf of the Trust and indeed they further invited us to discontinue the claim.

Instead we reviewed all the evidence and after further investigation and consultation with our experts we sent a further revised Letter of Claim.  Following this letter and despite the previous denial of all liability, the Trust made an offer to settle the matter on a 60/40 split basis in favour of our client. After some further negotiations, settlement in respect of liability was settled on a 90/10 split basis in favour of our client.

Once the liability aspect of the case had been settled, we proceeded to investigate the value of the claim for our client. This has involved instructing appropriate experts to assess his current condition and the long term impact his Erb’s palsy will have on him. We obtained reports from a Consultant Hand and Arm surgeon, a physiotherapist, an occupational therapist (to deal with past and future care, assistance and equipment needs) and an assistive technology expert. This was to ensure he would be, so far as possible and practical, able to be put back in the position he would have been but for the negligence, which is what compensation is designed to do.

Following an aborted settlement meeting where the Defendant Trust made a low offer of £375,000 and had not obtained their own complete set of evidence, a second joint settlement meeting took place. After negotiations agreement was reached for £1.1million on a full liability basis. This was later approved by the Court. Any compensation for a minor has to go to Court for the judge to ensure the correct level of settlement has been achieved. The Court also made an Anonymity Order.

We, and our client’s family, are over the moon that we have brought the claim to a hugely satisfactory conclusion for many reasons. Settling liability brought a degree of closure and vindication for his mum who had the traumatic birth. This will provide our client with financial security and the means to obtain the specialist equipment, or have physiotherapy, or pay for help when he needs it, not relying on others or waiting until he gets to the top of an NHS waiting list. It will give him some independence and control which he might otherwise not have had.

Being a rather lovely and sensible 17-year old, and with approval from the court, the compensation has been paid into a Personal Injury Trust with a professional trustee as well as a parent managing it. This means his compensation will be invested and will continue to grow to ensure it will provide ongoing support for him throughout his life.

Erb’s palsy cases can be complex and technical, requiring specialist medical-legal knowledge to pursue. If you believe that you or your child may have an Erb’s palsy case please do contact us, we would be only too happy to talk it through with you without any charge or obligation.

If you and your child have been affected by this issue, and you are seeking legal help, please feel free to get in touch.