Grandmother’s successful claim following negligent delivery
A legal threshold has been crossed where the courts have recognised the damage that can be caused to those who witness negligent healthcare provided to their loves ones.
A grandmother has successfully claimed for suffering PTSD following the birth of her granddaughter. Calderdale & Huddersfield NHS Foundation Trust were ordered to make the pay-out after a chaotic delivery which left the new-born with permanent neurological damage. The baby remained unresponsive for 12 minutes.
Until now, family members traumatised from witnessing negligent medical procedures or their aftermath have found it extremely difficult to successfully claim damages.
The rules for bystanders was defined by the House of Lords, specifically following litigation following the Hillsborough disaster. In a nutshell, any bystander claiming damages for psychiatric damage must:
- have a relationship of love and affection with the primary victim (in this case the granddaughter);
- come across the ‘immediate aftermath’ of the event (here witnessing the delivery first hand);
- have direct perception of the harm to the primary victim; and
- be of reasonable fortitude.
These rules were formed to limit the number of potential claimants, especially where the immediate aftermath of an incident can be communicated widely by media. Where the aftermath is witnessed at a later time, legally the damage becomes more remote from the incident, and harder if not impossible to claim.
The success in this case arises from the grandmother witnessing the birth first hand, seeing the harm, fearing the worst, lastly resulting in a medically recognised disorder. For the grandmother, the relationship to the primary victim and the immediate aftermath would have been established as well as the perception of harm to her granddaughter. In a way this is the perfect scenario to qualify under the legal rules set by the House of Lords.
Any claim made by other family members not connected in time and space to the delivery may not have been successful. It is also important to remember that a case in primary negligence must be established first, if the treatment was not found to be negligent, the grandmother would not have recovered damages as a secondary victim.
The High Court found the midwives at Calderdale Birthing Unit did not properly anticipate the risk of delivering a 10lb baby. The girl suffered an acute profound hypoxic ischaemic insult as a result of an unnecessary 11-minute delay in delivery in April 2011. It would seem the grandmother not only witnessed what appeared to her as a stillbirth, but as her granddaughter was also stuck during the delivery, she may well have witnessed some significant specialist maneuvers to bring about the delivery.
In a case such as this, the granddaughter might well have a claim for her disabilities if the hypoxia could have been avoided.
It is a great step forward for the Court to recognise the full impact of a negligent delivery and impact on the family as a whole.