Wrongful death & nervous shock case settled for a six-figure sum

6 minute read

The Plaintiffs is this tragic case were a young couple who were expecting their first child. On the morning of the 26^th January 2017 the first named Plaintiff attended with her GP with a complaint of reduced foetal movement. The doctor recorded that she was well but the baby not moving as usual. The foetal heart rate was noted to be 150 beats per minute and the GP noted that during the examination there were no identifiable movements even after manual manoeuvres.

The GP recorded:-

“advised this to be unusual, if baby not back to normal movements after two hours, attend Accident and Emergency Department for assessment”.

This was the crucial clinical note in this case and the issue of negligence hinged on whether or not the advice as recorded was in fact given to our client. Our client vehemently disputed that she was given this advice and instead vividly recalled that her GP advised her that she did not have to attend hospital until the following evening should she not notice a return to normal foetal movement. Her recollection of the advice she was in fact given was borne out by contemporaneous text messages she sent to her husband immediately after her consultation with her GP.

The following day our client presented at the National Maternity Hospital. She gave a history of absent foetal movement for 24 hours and reduction in movements for the past 48 hours. She also complained of some upper abdominal pain. A CTG trace was commenced and the heartrate noted to be 132 beats per minute and a transabdominal ultrasound scan showed the presence of a foetal heartbeat and foetal movements. She was admitted to the foetal assessment unit for a CTG recording and possible biophysical profile. A further abdominal scan was performed during which the heartrate was found to be 115 beats per minute however there was a rapid deterioration in the heartrate to a rate of 20-30 beats per minute and our client was immediately transferred to theatre for a crash caesarean section under general anaesthetic and her daughter was born in an extremely compromised condition. She was noted to be very pale and meconium stained and she was given apgar scores of 0 at one, five and ten minutes. She was then transferred to the Neonatal Intensive Care Unit. Her condition remained extremely precarious and our clients were advised that she had suffered very severe irreversible brain damage. A decision was taken by them and the clinical team caring for her that a prolonged period in the Intensive Care Unit was not appropriate. On the 5^th February 2017 our clients’ daughter was extubated and passed away a short time later in the presence of her parents. Her death was attributed to severe hypoxic ischaemic encephalopathy secondary to a foeto-maternal haemorrhage.

Augustus Cullen Law were contacted to investigate the circumstances of the ante natal care provided by the GP and obtained an expert opinion from a GP expert which in essence stated that if the advice given to our client was in accordance with what is recorded in the medical notes, then this was standard appropriate advice to be given by a General Practitioner. On the other hand, if the advice given to her was as she recalled, then this would amount to sub-standard care. We also obtained expert evidence on causation from a Consultant Obstetrician and a Consultant Neonatologist.

Our clients instructed us to issue proceedings in the knowledge that the case would entirely turn on their evidence as to their recollection of the GP’s advice. After some time a mediation was requested by the Defendant at which any suggestion that the GP gave incorrect advice or altered the medical notes were rejected out of hand by the Defendant. The mediation was therefore unsuccessful. Approximately a year later another mediation took place and again the Defendant steadfastly denied any allegations of negligence or alterations of the medical notes and the Plaintiffs were advised by the Defendant that alteration of the medical notes was simply not possible given the software used by the practice. A Defence was finally delivered denying the allegations and specifically pleading that the first named Plaintiff had been given the correct medical advice and had failed to follow it thereby contributing to the poor tragic outcome for her child.

Discovery was sought of the clinic records together with electronic discovery of the software system and all changes that may have been carried out. A specialist IT firm was agreed upon to carry out this specific task and to prepare a report for both parties. In the interim a tender of a sum of damages likely to be in excess of the value of the claim was made by the Defendant without an admission of liability. This put the Plaintiffs in the difficult position of having to decide if they wished to continue with their case to obtain a finding on liability while risking an order for costs against them.

The Plaintiffs decided to continue with the proceedings and take the risk as they wanted to discover the truth about what occurred. The e-discovery report produced by the IT specialists uncovered that the clinical note in question had clearly been altered with addition of a number of additional words some months later (and after the GP was notified of the death of the Plaintiffs’ daughter). The original note accurately reflected the first named Plaintiff’s memory of the advice given to her proving her to be entirely correct. An admission of liability followed together with an apology and the case was settled for a significant six figure sum together with the Plaintiffs’ legal costs.

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