By Ruwena Khan
(1) HB (In her own right as Administrator of the Estate of JE) (2) CG v Lancashire Hospitals NHS Foundation Trust (2013)
In a case reported on Lawtel yesterday, the Claimant mother and sister received £160,000 in an out of court settlement following the sudden death of the deceased (‘X’) during the delivery of her stillborn baby in December 2010. The Claimants suffered a traumatic bereavement resulting in post-traumatic stress disorder. The settlement included a dependency claim for the deceased’s son.
The Factual Background: A Traumatic Few Days
X was pregnant with her second child and was reaching the end stages of her pregnancy when in December 2010 she began to suffer from symptoms consistent with a low grade viral illness. She attended her GP and was diagnosed as suffering from pleurisy for which she was prescribed amoxicillin antibiotic.
By the morning of December 14, X’s condition had worsened and she was admitted to a hospital of the defendant trust (D). The following day, X was noted to have pustular spots on her throat and enlarged lymph nodes. On December 16, she was reviewed by her treating consultant and was noted to be unwell, with swollen lips, sore legs, sore throat and a fever. He suspected swine flu and swabs were taken. As per D’s policy, X was treated as being positive until proven negative and she was thereafter barrier nursed.
Despite X’s pregnancy (gestation at 37.5 weeks), hospital staff failed to inform the maternity services of her admission. It was only by chance that a passing midwife observed X’s pregnancy and started a CTG trace. The results of the CTG were sufficiently abnormal for the midwife to request obstetric review. However, despite the trace being classified as “pathological” X was not reviewed until approximately five hours later. At that time a consultant obstetrician still failed to note the obvious abnormalities on the CTG and did not request a further CTG to establish if the abnormalities had resolved.
On December 17, a CTG indicated that X’s baby was severely compromised. She was transferred urgently to the maternity ward. However, X’s baby had died in utero. It was then necessary for the baby to be delivered stillborn and X was induced. X was not appropriately monitored and her condition deteriorated significantly during the course of the day and in the early evening a decision was made to proceed to delivery. During the forceps extraction, X suffered a cardiac arrest and subsequently died.
The inquest concluded that X had died due to a “severe generalised infection of unusual presentation”. A post-mortem of X’s baby found that it had died due to asphyxia caused by a shortage of oxygen. This was attributed to a maternal illness of unknown cause disrupting the blood flow through the placenta.
The Action
C brought an action against D alleging that it was negligent in failing to perform a caesarean section on the evening of December 16.
Liability was admitted. D accepted that, had the baby been delivered earlier, it would have survived. It also accepted that the baby’s death in utero and the process of the induction of labour would have had a traumatic effect on X. It was stated that, irrespective of the fact that cause of death was uncertain, D accepted that X’s death was its responsibility.
The Law: The Law Reform (Miscellaneous Provisions) Act 1934
The estate may bring a claim for:
- General damages for pain, suffering and loss of amenity suffered by the deceased between injury and death. This can include damages for any suffering caused by awareness of reduced life expectancy (s.1(1)(b) Administration of Justice Act 1982).
- Special damages incurred between injury and death e.g. loss of earnings between injury and death, medical expenses and cost of care between injury and death.
- Funeral expenses (if paid for by the estate).
The Law: Fatal Accidents Act 1976
Dependants can bring a claim for:
- Funeral expenses if paid for by the dependants
- Statutory bereavement damages
- Dependency: loss of financial support and services from the deceased.
Only one claim can be brought in respect of the same death under the Act (s.2(3)), so all dependants must bring their case at once.
To bring a dependency claim, a claimant must show that:
(i) he or she falls within one of the categories of dependant set out in the act,
(ii) he or she was, or was likely to be, dependent on the deceased as a matter of fact.
Categories of dependants (s.1(3)):
- the wife or husband or former wife or husband of the deceased;
- the civil partner or former civil partner of the deceased;
- any person who—
- was living with the deceased in the same household immediately before the date of the death; and
- had been living with the deceased in the same household for at least two years before that date; and
- was living during the whole of that period as the husband or wife or civil partner of the deceased;
- any parent or other ascendant of the deceased;
- any person who was treated by the deceased as his parent;
- any child or other descendant of the deceased;
- any person (not being a child of the deceased) who, in the case of any marriage to which the deceased was at any time a party, was treated by the deceased as a child of the family in relation to that marriage;
- any person (not being a child of the deceased) who, in the case of any civil partnership in which the deceased was at any time a civil partner, was treated by the deceased as a child of the family in relation to that civil partnership;
- any person who is, or is the issue of, a brother, sister, uncle or aunt of the deceased.
Bereavement damages:
S.1A Bereavement:
(1) An action under this Act may consist of or include a claim for damages for bereavement.
(2) A claim for damages for bereavement shall only be for the benefit—
(a) of the wife or husband or civil partner of the deceased; and
(b) where the deceased was a minor, who was never married or a civil partner —
(i) of his parents, if he was legitimate; and
(ii) of his mother, if he was illegitimate.
(3) Subject to subsection (5) below, the sum to be awarded as damages under this section shall be £12,980.
(4) Where there is a claim for damages under this section for the benefit of both the parents of the deceased, the sum awarded shall be divided equally between them (subject to any deduction falling to be made in respect of costs not recovered from the defendant).
(5) The Lord Chancellor may by order made by statutory instrument, subject to annulment in pursuance of a resolution of either House of Parliament, amend this section by varying the sum for the time being specified in subsection (3) above.
For deaths before 1 April 2013, the amount of bereavement damages is set at £11,800, and for deaths before 1 January 2008 the amount is £10,000.
A child cannot claim bereavement damages in respect of the death of a parent.
Injuries
As noted above, both X and her unborn baby died. Prior to her death, X suffered bewilderment and fright. This was made manifestly worse because X was deaf. X then suffered grief and horror that her child died in utero following which she had to deliver the stillborn child by a normal vaginal delivery.
S and C also experienced a traumatic bereavement resulting in post-traumatic stress disorder and anger syndrome. They required treatment with a course of desensitisation therapy reprocessing.
Also X’s young son suffered a loss of dependency and of pastoral care which only a mother could provide. Before her death, X had achieved a first class honours degree and was in full-time employment with good promotion prospects.
Breakdown of the Award
The claim was settled on a global basis in the sum of £160,000.00. However, the Claimant’s Solicitors estimated the following breakdown:
X’s PSLA: £10,000.00
C’s PSLA: £24,750.00
S’s PSLA: £16,000.00
Dependency claim (Loss of services/financial support): £109,250.00
Conclusion
A case such as this emphasizes the many different factors and stages in time that can and should be taken into account when valuing a claim following death and the range of people that can issue proceedings. However, when one takes off one’s legal cap and steps back from the procedural and evidential quandary in assessing a claim such as this, the tragic circumstances that led to the death of X and the subsequent losses suffered by her family members only highlight how the quantification of such a claim truly is a coldly clinical exercise in every sense.
RUWENA KHAN
9th September 2014
Zenith PI: PERSONAL INJURY LITIGATION IN PRACTICE 
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