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Significant compensation awarded to young man who suffered Erb’s Palsy at birth
When Jake was born there was a problem delivering his shoulders. Despite the fact that Jake was a big baby, no actions were taken by the hospital and Jake suffered an injury to the brachial plexus resulting in him developing Erb’s Palsy.
Jake was his mum’s second baby, and during a scan close to his due date he was found to be bigger than expected and so it was decided that his mum would be induced. On the day of the planned induction Jake’s mum attended her local hospital in the morning. By the afternoon she was showing signs of labour and her membranes were ruptured. By the evening mum was experiencing contractions and wanting to push but she was not considered to be sufficiently dilated to give birth. At first mum was encouraged not to push but after about 40 minutes it was felt she would be able to deliver Jake.
Jake was born later that evening, but it was recorded that there was a problem with delivering his shoulders due to his size. Despite the difficulties mum was not placed in the McRoberts position, the position noted to help when a baby’s shoulders are stuck, there was no episiotomy and Jake’s shoulders had been delivered solely with the application of traction. As a result of the method of delivery Jake was born with limited movement in his right shoulder and suffered an injury to the brachial plexus. He developed Erb’s Palsy which is a lifelong condition and which restricts the movement in his right shoulder and causes him pain.
Lesley Herbertson, Partner at Potter Rees Dolan, investigated Jake’s claim shortly after his birth and argued that the method of delivery had caused his Erb’s Palsy and had the appropriate steps been taken to account for the difficulty in delivering Jake’s shoulders he would not have suffered any injury. Lesley was able to secure an admission as to the errors made by the hospital quite quickly. However, at the time of the admission Jake was only a toddler and it was not known exactly how his injury would impact on his life.
Jake was seen by experts instructed to assist in valuing his case and it was agreed that he would need to reach skeletal maturity before the full extent of his injury and the impact it would have on his life could be determined. Jake’s case was therefore put on hold for several years with Jake being assessed by the experts periodically.
Once Jake reached the age of 16 it was felt that the true effect of his injury could be determined. Lesley therefore set about comprehensively considering every part of Jake’s life to consider how his injury impacted upon it. As Jake is right handed the injury to his right shoulder impacted on his life in more ways than even he realized at first, but after carefully considering all the help that his family provided to him over the years, what specialist equipment would help him manage independently the most and how the injury might impact on his chosen career, Lesley was able to fully value Jake’s claim.
Once the full valuation had been conducted Lesley engaged in settlement discussions with the Defendant. At first they were unwilling to settle Jake’s claim on the basis of our valuation, as they felt it was being valued at a much higher level than other cases with similar injuries. However, Lesley was able to demonstrate the true impact of Jake’s injuries and his consequential losses and the claim eventually settled for £875,000, which is a significant level of compensation for this type of injury but which reflects the full impact of the injury on Jake.
“The Defendant initially took the view that due to nature of Jake’s injury the compensation being sought was too high. However I am pleased that we were able to show that in Jake’s case the compensation reflected his actual losses and the impact of the injury on him as an individual. It is important to ensure that compensation is awarded to reflect the losses sustained both now and in the future and push the Defendant to agree settlement at the right level to ensure the individual is properly compensated.
Jake is only a young man and the impact of his injury will affect him for the rest of his life and could also influence the type of career he ends up pursuing. It is therefore only fair that he has been compensated to reflect this and I am very happy with the outcome, as I know that Jake has received an appropriate damages award for his injuries.”
Lesley Herbertson is a Partner within Potter Rees Dolan's Clinical Negligence department and specialises in acting on behalf of babies and children who have suffered brain injury at the time of their birth. If you have any questions relating to Birth Injuries or Clinical Negligence and wish to speak with Lesley, please call our free phone on 0800 027 2557. Alternatively, you can contact Lesley directly through her profile page on our website.