When children suffer asphyxia in the womb, a delay of minutes – even seconds – in their delivery can make an enormous difference to the level of disability, if any, that they will endure for the rest of their lives. One such delay was the focus of a High Court case concerning a seven-year-old boy.
There was no dispute that the boy was deprived of oxygen prior to his birth due to a compressed umbilical cord. It was alleged that permanent injury to his brain was avoidable and that a failure adequately to monitor the foetal heartbeat in the few minutes before he was born led to a catastrophic delay in his delivery.
The NHS trust that bore responsibility for his care admitted that there were failings in midwifery care in the latter stages of his mother's labour. There was, however, a dispute as to the precise time that he would have been born but for those failings. The trust presented expert evidence that the timing and brevity of the delay was such that it had little or no impact on the extent of his injuries.
In the light of those arguments, a settlement of liability issues was reached whereby the trust agreed to pay 80 per cent of the full value of his claim. In approving that compromise, the Court noted that a foetus is generally considered able to withstand 10 minutes of asphyxia before sustaining permanent brain damage. However, every second that passes thereafter may crucially affect the outcome.
Given a number of imponderables identified in expert evidence, complex issues relating to the timing of the boy's delivery could have been decided either way had the case proceeded to a contested trial. On that basis, the Court found that the settlement was sensible and proportionate.
The boy is of average intelligence and has no hearing or visual problems. However, he has motor, cognitive and emotional difficulties that are likely to be lifelong. It will be some time before the amount of his compensation can be assessed. Given the severity of his disabilities, however, his award is likely to run well into seven figures even after the agreed 20 per cent deduction.