PI Brief Update

Cooper v Royal Berkshire Hospital NHS Foundation Trust: Brain Injury From Post-Natal Seizure & Claimant’s Part 36 Offers - John De Bono QC, Serjeants’ Inn Chambers

14/05/15. On 13th March 2015 Jeremy Baker J. gave judgment for Christian Cooper, the claimant, in this complex brain injury case. The case is of interest to practitioners with cases where a mother has suffered a seizure or brain injury in the post-partum period.

The case is also an example of the benefits to a claimant of beating her own part 36 offer. The claimant had made a part 36 offer for 75% of the full value of the claim. The offer was beaten and the court ordered, by consent, that in addition to penalty interest at 10% above base rate on the claimant’s liability costs from 21 days after the offer was made the defendant should also pay the claimant the sum of £50,000 as the claimant had beaten her own part 36 offer. This was a trial of liability only and damages will be assessed at a future date.

Factual background

Christian Cooper was 36 years of old when she gave birth to her third child. Her first pregnancy had ended with a traumatic removal of the placenta after a vaginal birth. In her second pregnancy she had elected for caesarean delivery. In the index, third, pregnancy she had elected a trial of vaginal birth after caesarean section (VBAC). It was alleged that she had not been adequately advised of the risk of this (about a 1 in 250 risk of uterine rupture leading to significant risk to the baby) and would not have consented to VBAC with adequate antenatal advice.

On 14^th July 2005 Christian was in labour when she suffered uterine rupture. She underwent emergency Caesarean section and suffered significant blood loss, later requiring a transfusion. Her baby, Gene, was profoundly injury by hypoxia and died just under two years later. His claim was compromised some time ago.

On 19^th July 2005, five days post partum, Christian was found face down on the floor in her hospital side room. Her heart was not beating (asystole following cardiac arrest). After emergency treatment her heart started beating but she did not regain consciousness. Since then she has remained in a minimally responsive state. The claim was brought on her behalf by her former partner, claiming damages on Christian’s behalf for psla, care costs, lost earnings and the costs of replacing the care that Christian would have provided to her two surviving children.

The claimant’s case was that the cardiac arrest which had led to her massive brain injury was the result of a cerebral vein thrombosis (CVT). A CVT is a clot in the small veins in the brain which leads to an area of infarction (a lack of blood). This in turn had caused a focal seizure which propagated into a generalised seizure. As in epilepsy, a generalised seizure can cause a cardiac arrest. The claimant argued that the CVT was materially contributed to by the uterine rupture and by the admitted failure of the defendant to administer the heparin (for anti-coagulation) which had been prescribed post-partum.

The defendant accepted that the cardiac arrest was probably the result of a seizure but contended that given the rarity of CVT it was more probable that Christian’s seizure was a case of eclampsia. Eclampsia would not have been contributed to by either the uterine rupture or the failure to administer heparin.

At the start of the trial the parties agreed that the case would be determined by the court’s finding as to the cause of the seizure. If the claimant proved that she had suffered CVT she would win – given the admission that CVT would have been materially contributed to by a failure to give heparin (per Bailey v. MoD) there was no need to determine the additional issue of whether or not appropriate ante-natal advice had been given or whether had she been properly counselled the claimant would have avoided uterine rupture by opting for an elective caesarean section.

CVT v. eclampsia

Key to the claimant’s success was the evidence of Dr David Williams. Dr Williams is one of only five consultant obstetric physicians in the UK. An obstetric physician does not deliver babies but instead specialises in managing maternal complications of pregnancy including eclampsia and clotting disorders. He practices from University College Hospital, London and was described by the judge as being “an expert of the first calibre in his field.” I would strongly recommend him for any case involving a maternal, medical (rather than surgical) complication of pregnancy.

Dr Williams told the court that whilst CVT was extremely rare it was responsible for between 5 and 10 maternal deaths associated with pregnancy every three years. Its incidence has fallen as thromboprophylaxis has improved. CVT (along with the better known Deep Vein Thrombosis/ DVT) is precisely why mothers are given heparin post-partum. CVT is a condition associated with hypercoagulability of the blood. In Christian’s case it was contributed to by her immobility post Caesarean, by dehydration, vomiting, possibly infection and by the failure to provide heparin.

It was possible that Christian had suffered eclampsia but Dr Williams identified a number of significant reasons against this thesis. Eclampsia is poorly understood and by definition involves a seizure. It is commonly associated with pre-eclampsia which is a description of the mother’s condition either before, during or after labour (think Lady Sybil, Downton Abbey). Pre-eclampsia is associated with proteinurea and significant increases in blood pressure although eclampsia can occur without these features. Eclampsia is much more common than CVT but is very rare more than 24/48 hours after delivery.

The court rejected the opinion of the defendant’s obstetric expert, Dr Pirie, that Christian had probably suffered eclampsia. Dr Pirie had based his opinion on the greater prevalence of eclampsia compared to CVT without making allowance for the rarity of eclampsia at five days post-partum.

The Claimant’s case was assisted, as so often, by evidence from the late Dr Brian Kendall who gave evidence by video link. The undisputed expert of choice in neuroradiology for so many years, his passing at the beginning of this month will be a cause of great sadness to many who have had the privilege of working with him.

The claimant having won the case the defendant conceded her entitlement to an ‘additional payment’ under the post April 2013 amendments to CPR 36. The agreed amount was £50,000 on the basis that the claim was worth not less than £500,000. Under the rules an additional amount can be awarded on the basis of 10% of the first £500,000 and up to 5% of any amount above that figure subject to a maximum £75,000.

Since judgment was given in this case there has been a further amendment to CPR 36. The new 37.17(4)(d) provides that such an additional amount cannot be awarded until the case has been decided i.e. ‘all issues in the case have been determined, whether at one or more trials’. From 6^th April 2015, beating a liability offer in a split trial still entitles the successful claimant to an additional amount but not until the end of the case.

John De Bono QC
Serjeants’ Inn Chambers
Instructed for the Claimant, by Susan Brown, Boyes Turner LLP

Image ©iStockphoto.com/STEFANOLUNARDI