How do you dispute a will based on undue influence?
For many children and adults there is no connection between their cerebral palsy and the circumstances of their birth. For others there is a direct causal link, and for them, their injury may have been avoidable.
The type of birth injury which is commonly the subject of clinical negligence claims is cerebral palsy due to Hypoxic Ischaemic Encephalopathy (or “HIE”).
HIE occurs where the baby’s brain is starved of oxygen to a damaging extent. The hypoxia can be over hours or days, in which case it is called chronic or prolonged partial hypoxia. In other cases the hypoxia is sudden and near complete and this is termed acute profound asphyxia. Sometimes there is a combination of the two. The HIE is typically categorised as ‘mild’, ‘moderate’ or ‘severe’.
When I take details from a parent about whether their child may have a claim, as well as hearing the “birth story”, I will typically ask about the condition of the baby at birth as there are various indicators of Hypoxic Ischaemic Encephalopathy. Relevant questions include:
These are some of the indicators of damaging levels of hypoxia in the newborn. As the baby matures, milestones may be delayed or not met and eventually a diagnosis of cerebral palsy may be made.
The question as to whether there will be a successful claim, will rest on being able to prove that the damaging period of hypoxia should have been avoided. We look at whether inappropriate care was given during labour and delivery, and/or during the antenatal period.
There are a number of ways in which the baby can exhibit signs of compromise, both during or prior to labour. When investigating a claim we examine whether any such signs were unreasonably missed. We also gather expert evidence on the underlying cause of the cerebral palsy and we correlate the obstetric and paediatric neurology evidence.
Typical signs of fetal compromise prior to birth include:
Typical scenarios may involve a protracted labour which culminates in a caesarean section or, perhaps more likely, a protracted labour where there is an unassisted delivery. There can also be issues surrounding induction of labour, as well as speed of response to a medical emergency. The question of appropriate care in the antenatal period must also be considered and whether a decision should have been made to deliver the baby before the due date. If so, the damaging events of labour and delivery may have been avoided altogether.
Key information such as the nature of the CTG trace and the results of the tests carried out on the baby at birth may well not be known without obtaining the medical records. Many completely normal labours are protracted and difficult and, for this reason, not all parents make a link, perhaps especially in times gone by, between what happened during labour and delivery, and the condition of their cerebral palsy child.
In some cases, even if parents do make a link, it is only to dismiss what happened as “one of those things” and the question of fault may not be considered at all. Only many years later may such parents ask themselves, should the birth have been handled differently and should my child’s injury have been avoided?
In my next blog I shall look at bringing claims of this nature many years after the event.
For further information or if you have a potential claim you would like to discuss, please contact Bridget Hughes. You may also wish to visit our page, Cerebral Palsy and Birth Injury Claims page.
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