Cerebral palsy: Is there a better way to find the truth?

When a baby’s brain is denied oxygen at birth, the injuries can have lifetime consequences. For devastated parents, the battle for answers as to just what happened on the labour ward can be exhausting.

Sometimes slugged out in the courts, the process of finding the truth and getting compensation, where due, pits parents and their solicitors against hospital staff with the State Claims Agency seeking to minimise costs. Exacting an extraordinary toll on distraught families and costing the State millions in compensation, is there a better way?

On Thursday, the Rotunda hospital, in conjunction with the State Claims Agency, will host a conference to look at one of the commonest birth injuries before the courts – cerebral palsy caused by a lack of oxygen to the brain during birth.

It’s estimated that 10-15 per cent of all cerebral palsy cases are caused in this way, some of which are preventable. With consequences including epilepsy, development delay, and motor and cognitive impairment necessitating lifelong care for a child, it’s no wonder parents want to know who’s to blame.

And with millions in compensation at stake, hospitals and the State Claims Agency can hotly contest claims.
Reducing injuries
Bringing together obstetricians, midwives, solicitors, the State Claims Agency and William and Kay Dunne, plaintiffs in Ireland's first birth-related medical negligence case, the Rotunda's clinical director, Dr Peter McKenna, hopes this week's conference will pool experience to reduce such injuries, some of which he says are preventable.

“Where the foetal heart trace is abnormal and isn’t acted on, then that possibly was predictable and preventable, and would be litigated on and compensated for if the court found there was negligence,” says McKenna.

It’s his experience that the more senior the staff on the ward, the less likely such errors are to occur.

“Time and time again, when these cases go to court, it can be seen that there is a difference in management between the midwife and the doctor. The doctor would say ‘I wasn’t called’ and the midwife would say, ‘I didn’t need to call you’.

Is another reason for such catastrophic birth injuries because there are too few obstetricians or are they too stretched?

“That’s probably the single most important reason,” says McKenna. He says the other is the inflexibility of consultants’ contracts. “It says we discharge our obligation to the public system between 8am and 8pm. That leaves a whole swathe of time that isn’t covered.”

Solicitor Michael Boylan, head of medical negligence at Augustus Cullen Law, will also speak at Thursday's event. Having acted for children in some of the State's most high-profile cerebral palsy actions, he says he sees the same errors defended by hospitals again and again.

“Much of the time, it’s midwives or junior doctors who misinterpret a CTG trace [a record of the foetal heartbeat] and think it is benign. They don’t react on time and don’t call for more senior help,” says Boylan. He sees an overuse of oxytocin, used to induce labour, can make foetal distress worse.

Unnecessarily gruelling
But do hospitals come clean when it's their fault? Boylan doesn't think so. He believes hospitals and the State Claims Agency, whose job is to minimise financial exposure to the State, can make things unnecessarily gruelling for parents.

In February this year, a High Court judge ruled that Eoin Dunne, now 10 years of age, had sustained catastrophic brain damage resulting in dyskinetic cerebral palsy due to failure of the nursing and paediatric staff at the Coombe hospital to ensure that he was adequately resuscitated during the first 23 minutes of his life. The trial saw his parents in court for 45 days.

Of cases in general, Boylan says, “What really gets to me is that parents are told that this didn’t occur during the labour process when the doctors absolutely know that it has.

“Sometimes mothers are told it happened as a result of an infection, they are asked if they picked up a cold – mothers then carry around a feeling of guilt, that it’s their fault in some way. I’m convinced [hospital staff] know and are not properly informing the parents.”

He says some parents of children with cerebral palsy caused by birth asphyxia come to him years after the birth saying the hospital passed their queries from post to pillar with no one taking responsibility.

“It’s a very unsatisfactory journey, and parents are left with fragments of information and unanswered questions,” says Boylan.

“I’m utterly convinced that some people who have utterly meritorious cases are left in ignorance of the fact that their child has suffered a birth injury. I’m as sure as I can be of that.”

Boylan says while the State Claims Agency requires hospitals to inform it of incidents within 48 hours, parents are left in the dark.

“The State Claims Agency is asking hospitals to tell them of incidents so that they can get the evidence together quickly, but they won’t share that information with parents. They do it to be ready to defend a case for whenever the family eventually wakes up.”

Director of the State Claims Agency, Ciarán Breen, who will speak at the conference on Thursday, declined to be interviewed on the matter.

No concealment
Dr Peter McKenna, however, disagrees that doctors keep parents in the dark. "It certainly would be discussed with parents what went wrong," he says.

“But as to whether many people would complete the circle and say, ‘I think you should sue me and this is the case I would make if I were you,’ I don’t know that any system would encourage that. But there is certainly no concealment.”

Overall, he says his job is about minimising recurring problems on labour wards and Thursday’s conference is about seeking common ground on an issue that isn’t just an Irish problem but an international one.

“We’re trying to make the middle ground as big as possible so that people can meet and realise that there is more to life than mud-slinging across the barriers.”

"If only they had held their hand up at the beginning," says Deirdre Courtney of her and her husband Brendan's eight-year battle for justice for their daughter Bríd.

Bríd suffered brain damage due to alleged negligence at her birth at Tralee General Hospital in 2003. Last year, a settlement of €11 million was agreed by the HSE, without admission of liability. Deirdre thinks Bríd's case could have been dealt with more quickly and at less expense.

“If they had put up their hand and said, ‘we really have made a blunder here, it was an accident’. I mean accidents happen. That’s life. What I’d say is stop defending the indefensible. Just enter into meaningful discussions at the earliest opportunity.”

Bríd suffered foetal distress in the latter stages of labour which went unnoticed by staff, says Deirdre. While after birth, frantic attempts were made to resuscitate her, she suffered brain damage and was ultimately diagnosed with dyskinetic athetoid cerebral palsy.

"She is really profoundly disabled," says Deirdre . "She has impaired motor function, she can't walk, and she's wheelchair dependent. She can see, hear and vocalise but she can't communicate using speech."

Her condition means Bríd will require lifelong care.

Deirdre says while she and her husband asked questions of the hospital, they didn't get satisfactory answers from everyone.

“We were told that this can happen lots of babies at birth, that children can be born not breathing through no fault of anybody’s. That’s the line they were sticking to all the time.”

With four other children, seeking compensation so that they could afford lifelong care for Bríd meant years of stress, worry and expense. "We were really under huge financial pressure. There was always the possibility that if we lost our case, we'd lose our home and our farm."

Initial court proceedings started in 2006 and over the next four years, the family made countless trips to Dublin, England and Wales for Bríd to be seen by medical experts for both sides. "We were funding all of that ourselves," says Deirdre. Her parents moved from Cork to support the family.

In November 2010, a settlement was reached in which the HSE did not admit liability. The Courtneys received an interim payment of €2 million.

When expected legislation for periodic rather than a lump sum payment failed to materialise, the Courtneys were called back to court again in 2012.

"We actually had to go through the procedure of seeing every single expert all over again – so there was duplication of costs on our side and to the State. Bríd had seen all the same people two years earlier."

The subsequent award of a further €9 million, achieved with the assistance of Ernest Cantillon solicitors, means that Bríd, now aged 10, can be supported to reach her full potential.

“She’s bright, she’s happy, she’s full of fun, she interacts superbly with everyone she meets and she likes nothing better than beating the socks off the rest of us in a game of cards,” says her mother.

Having just started fourth class in mainstream school, Bríd is keeping well up with her peers. The award means her future care is assured.

It troubles the Courtneys that nobody was ever held to account for Bríd's injuries, and that it took so long to get justice.

“If they admitted it at the earliest opportunity, if they apologised to the family and got on with it, that alone would relieve a huge financial burden on families.

Families could just get on with giving their child the appropriate care, knowing that help was at hand.”