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A long time to claim

Post date: 01/09/2006 | Time to read article: 2 mins

The information within this article was correct at the time of publishing. Last updated 14/11/2018

Baby P was born by vaginal delivery at home in the early hours of the morning. By lunchtime his mother became concerned that he looked yellow, and discussed this with her midwife. The midwife reassured her, saying that the baby was not washed up yet.

By the following day P’s mother was more concerned. He still looked jaundiced, and was not feeding or sleeping well. She told her midwife and her GP, Dr S, of her concerns. Dr S reassured her that the infant was fine.

Two days later, P was visited by an elderly retired midwife since her own midwife was on holiday. She shared the mother’s concerns that the infant looked unwell, and called Dr S. Dr S recalls that, on this second occasion, the infant looked much more unwell.

He called a paediatrician, Dr H, who visited at home. Dr H found P to be markedly jaundiced, with an enlarged liver and spleen. He immediately admitted P to hospital, where he made a diagnosis of haemolytic disease of the newborn and performed an exchange transfusion.

Although his early progress was satisfactory, P was subsequently found to have severe sensorineural deafness, athetoid cerebral palsy, and abnormal eye movements. These were all attributed to kernicterus.

As P’s mother was known to be rhesus-D-positive, P was not at risk from haemolytic disease of the newborn associated with anti-D, however other maternally-derived antibodies were produced, resulting in severe haemolysis.

When P was 26, he was injured in a car accident. Solicitors looking into the crash began to investigate the circumstances of P’s birth. A claim was brought against Dr S and against the Health Authority who employed the midwife, for failure to diagnose haemolytic disease of the newborn and failing to refer for appropriate treatment. There were no surviving midwifery records or GP records relevant to the period of the claim.

Expert opinion

Several experts were critical of both the midwife and the GP for failing to recognise the significance of jaundice arising within the first 24 hours of life. A neurology expert said that if P had been admitted and treated on the first day of life he would probably not have suffered irreversible brain damage and hearing loss.

A midwifery expert confirmed that, even 26 years ago, jaundice in the first 24 hours should never have been accepted as physiological jaundice and that such jaundice would be highly suggestive of haemolytic disease.

The claim was settled for £1,850,000 (US$3.5million) plus costs of £80,000 (US$150,000),with the Health Authority contributing 30% on behalf of the midwife.

Learning points

  • In the UK, an action for damages arising from negligence must be brought within three years, either from the date of negligence or from the date when the negligence was first known about, which can be much later.
  • With children, claims can be brought at any time before their 21st birthday, and anyone with a mental disability can make a claim at any time without limit. As a result, claims can be made a long time after the actual incident, and it is therefore important to retain all records in accordance with statutory guidelines. Further guidance can be found in the new Records Management: NHS Code of Practice (see opposite).
  • This case illustrates the benefits of the occurrence-based indemnity offered by MPS. Even though the event was 25 years ago, when the doctor had paid a subscription of just £6 for that year, and he had since retired from practice, MPS supported him.
  • There was a clear breach of duty of care, with both the midwife and the GP failing to recognise the significance of early onset of jaundice.
  • Physiological jaundice usually appears after 24 hours, is mild, and not usually associated with other symptoms such as poor feeding.

Further information

  • In England, the Department of Health has published a Records Management: NHS Code of Practice
  • American Academy of Paediatrics Clinical Practice Guideline: Management of Hyperbilirubinemia in the Newborn Infant 35 or More Weeks of Gestation Pediatrics114 (1) 297–316 (2004)
  • Jaundice – Management of Jaundice in Well, Term Infants. Clinical Guideline from University Hospital Leicester NHS Trust. 

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