Case Study Nineteen: Jonathan Austen-Jones – Miss TH – v – Western Sussex Hospitals NHS Trust

21st January 2016 by

Jonathan Austen-Jones acted on behalf of the claimant in her claim for damages for clinical negligence. The claim arose from the tragic loss of her baby’s life as a consequence of the failure of the Defendant Trust, appreciating that baby B had a Group B streptococcus infection at his birth on the night of the 1st January 2009, resulting in baby B’s death at 00.55 hours on the 3rd January 2009.

On the 17th June 2008 the claimant was confirmed to have become pregnant with an estimated delivery date of the 1st February 2009. Following a move to Worthing, the claimant’s care was transferred to Worthing Hospital.

On the 31st December 2008 at 35 + 1 week’s gestation, the claimant suffered a spontaneous rupture of her membranes and upon presentation to the hospital, was assessed by a junior doctor who undertook a full review, a speculum examination and took a urine sample, when it was found that the claimant was 1-2cms dilated.

The claimant was discharged on the basis that she should return within 24 hours if not in labour. The claimant was readmitted on the 1st January 2009 and at 23:45 hours gave birth to her baby son, B. Shortly after his birth, baby B was taken to the Special Care Baby Unit (SCBU) because he was not feeding.

At about 20:50 hours the claimant was informed that baby B probably had Group B strep. Baby B was transferred to the Neonatal Unit. At 23:30 hours, the claimant was called urgently to the Neonatal Unit to see baby B, after which, cardiac massage was commenced and the claimant witnessed baby B being injected with adrenalin to try and revive him. Sadly, there was no response or improvement in spite of treatment given. As a consequence, the claimant was invited to hold baby B in her arms, have him christened and then agreed that his ventilator should be turned off. Baby B died at 00:55 hours on the 3rd January 2009.

I alleged on behalf of the claimant that the defendant trust was negligent for a number of reasons including:

  • failing to take a high vaginal swab when the claimant was admitted on the 31st December 2008 with the spontaneous rupture of her membranes;
  • failing to have any or any adequate protocol in place for the management of pre-term ruptured membranes before 37 weeks in relation to babies born over 34 weeks;
  • failing to admit the claimant upon her presentation on the 31st December 2008 notwithstanding the fact that she was in premature labour and had obstetric cholestasis;
  • further or alternatively causing or permitting the return home of the claimant on the 31st December 2008;
  • failing to commence antibiotics whether on initial admission on the 31st December 2008 or thereafter on readmission on the 1st January 2009;
  • failing to ensure adequate monitoring of baby B after his transfer to SCBU which would have alerted the defendant to signs of neonatal sepsis earlier;
  • failing to ensure that all members of the nursing and medical staff on the SCBU who were tasked with the review and care of baby B were adequately trained in the recognition of early signs of sepsis;
  • Failing to administer IV antibiotics to baby B in time.

The claimant, in addition, to the tragic loss of baby B, developed post-traumatic stress disorder, having witnessed first-hand baby B’s severe condition and subsequent death and the whole experience horrified her, resulting in flashbacks and nightmares, poor and disturbed sleep patterns, irritability, difficulty in concentrating and dependency on alcohol and cannabis.

The outcome of the case

Unfortunately, the initial progression of the case was made that much more difficult by the refusal of an after the event Insurer to provide insurance cover to pursue the claim because they erroneously (as it subsequently transpired) considered the claim was without sufficient merit and prospects of success.

Fortunately, another Insurance provider did agree with Jonathan’s assessment of the case and a letter of claim was dispatched to the defendant trust in August 2009 seeking damages for bereavement and damages for the claimant’s psychological suffering over and above the natural grief reaction.

Finally, in early January 2010, the NHS LA, on behalf of the defendant trust, accepted that the trust was in breach of duty in relation to the care provided to baby B and that on the balance of probabilities, earlier and appropriate treatment would have resulted in baby B surviving.

The claimant received payment for the bereavement award at this stage. However, the NHS LA were not willing to accept liability as regards breach of duty and causation in respect of the claimant’s own claim for damages for psychological suffering over and above the natural grief reaction.

Independent psychiatric evidence was subsequently obtained which recommended a course of EMDR (Eye Movement Desensitisation and Reprocessing) treatment which the claimant underwent between February and July 2011 and the final evidence confirmed that the psychological trauma complained of by the claimant was indeed causally attributable to the grief reaction suffered post-death.

Following the issue of proceedings, the NHS LA, on behalf of the defendant trust, intimated that they wished to consider settlement of the claimant’s claim and a negotiated settlement on confidential terms was reached in February 2012 following exchange of Part 36 offers.

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