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4 July 2008

 

A recent High Court decision has highlighted the difficulties of assessing and reserving for claims involving stillbirth and neonatal death, especially where the mother has sustained psychiatric injuries. In addition the case highlights the importance of sensitively dealing with such cases, both in the early stages, immediately after the incident and during the litigation process itself.

 

Background

 

The claim arose out of the neonatal death of the claimant’s first child, Bron, on 9 September 2002 at the defendant’s hospital.

 

The defendant admitted liability for Bron’s death and the claim went to trial on the issue of quantum only.

 

The claimant alleged that as a result of Bron’s death she had suffered a significant psychiatric injury, namely depression and PTSD, as a result of which she was unable to pursue her career in academia, complete her PhD and fulfil her ambition of becoming a senior research fellow.

 

Evidence

 

The defendant, relying on its expert psychiatric evidence contended at trial that the claimant had not suffered any psychiatric injury at all. The defendant relied on the fact that the claimant had not sought any recognised treatment for her alleged injury and in fact had continued with her career in academia. In particular she had commenced a full time PhD in 2005 and had been largely able to resume working in November 2002 as she had always planned to do. In closing submissions the defendant asserted that the claimant was in fact a malingerer and that her evidence on the stand had, at times, been disingenuous.

 

The claimant relied both on expert psychiatric evidence and factual evidence from members of the various support groups she attended and from her supervising professors on her PhD course. The majority of the factual evidence was largely unchallenged. The claimant contended that she had suffered greatly since the death of her daughter, not least because she blamed herself for the death. A number of the medical records indicated that during the course of the labour she had refused intervention and it was suggested that this had contributed to the delay in delivering Bron. Furthermore, although the Letter of Response admitted liability it impliedly criticised the claimant for refusing intervention during the labour. It was also the claimant’s contention that the inquest into Bron’s death had been harrowing and this had contributed to her depression and PTSD.

 

Judgment

 

The Court found the claimant’s evidence from her factual witnesses compelling and accepted that following her daughter’s death the claimant had suffered an adverse psychiatric reaction. Whilst the Court concluded that the circumstances of Bron’s death had caused the claimant to suffer an adjustment disorder which continued to be exacerbated by trauma, guilt and self blame. This psychiatric condition had significantly affected the claimant’s capacity to work and was likely to do so in the foreseeable future. Whilst the Court rejected the claimant’s contention that she would continue to have an ongoing partial loss of earnings for life, it was accepted that she was likely to suffer a detriment to her earning capacity until 2015.

 

Accordingly the Court awarded the claimant all of her claimed past loss of earnings (£9,330.59), £115,000 for future loss of earnings (claimed at £265,412.49) and £40,000 for pension loss.

 

Conclusion

 

The case highlights the difficulties of accurately assessing a claim for psychiatric injury. The defendant had based its assessment of the claimant’s condition on her failure to accept conventional treatment and her apparent ability to resume working. It is clear that the Judge took a very sympathetic approach to the claimant.

 

The impact of the claimant’s factual evidence in this case was considerable; in particular the evidence from the claimant’s past and present colleagues setting out her difficulties following Bron’s death was found to be persuasive, especially as that evidence was largely unchallenged.

 

There was also a suggestion that the inquest process had contributed to the claimant’s psychiatric state. The claimant contended that the hospital was trying to blame her for her daughter’s death and that this had adversely affected her mental health. How defendants deal with such complaints and claims can have far reaching effects, not just on the litigation process but on the well being of patients and their families.

 

 

For advice or to discuss these or any other issues, please contact Sejal Mehta.