Spina Bifida ante natal screening claim Bedfordshire Hospital NHS Trust

Expecting mother getting a pregnancy scan maternal injury during childbirth - maternal birth injury - injuries to birth canal

The medical negligence case of Deborah Macaky recently made headline news here we discuss what we hope to achieve for Deborah in the on-going negotiations.

Deborah Mackay came to Tees Law aged 25 following the birth of her son, Calum Mackay. Calum was born with severe spina bifida, hydrocephalus, fetal valproate syndrome and talipes. With these difficulties, he was severely developmentally delayed, had profound learning difficulties and suffered with seizures.  It was unlikely that he would ever have been able to have a mainstream education or obtain future employment. The experts agreed that Calum would be permanently dependent on a wheelchair and would require twenty-four hour care and specially adapted accommodation. His life expectancy was, however, almost normal. 

Despite these difficulties, Deborah Mackay was a devoted mother and did everything possible to care for Calum. 

Bedfordshire Hospital NHS Trust admitted that the spina bifida could have and should have been identified on ultrasound scan antenatally, and that had the diagnosis been made at that time, Mrs Mackay would have been offered and would have undergone termination of the pregnancy.

Tees Law argued that the Defendant should pay for the additional costs associated with raising Calum arising out of all his disabilities.  There was to be a full trial in 2013 with an expectation of securing a sum of several million pounds.

In the meantime, we obtained by agreement interim payments between 2009 and 2011 for Deborah totalling some £705,000. 

Deborah invested £450,000 in a property in Clapham, Bedfordshire which had to be adapted for Calum and the remaining enabled Mrs Mackay to set up a care regime and to purchase some aids and appliances.

In November 2011 Calum sadly and very unexpectedly died aged 6. The claim was finally valued following his death in July 2012 at £330,000 which meant Mrs Mackay had to repay £375,000 within the year – a deadline set by Bedfordshire NHS Hospital.

We are now negotiating with the legal representatives of the Bedford NHS Trust to ensure the best possible outcome for Deborah. Whilst Deborah accepts that the money needs to be repaid and that the only way this can be done is by the sale of the property, we are working very hard to ensure that the immediate threat of losing her home is removed and that she is alleviated of this pressure. The defendant has now agreed in the last few days to take no further steps to enforce the sale until at least October of this year. We also want the property to be sold at a fair market value, rather than at the minimum price simply to satisfy the amount due to the Trust.

The lawyer acting for Deborah comments "The situation which Deborah is in is highly unusual. The Defendant is entitled to seek reimbursement of is money and Deborah accepts this. Having said this, the hospital trust would have expected to pay out several million pounds in compensation because of its negligence but because of Calum’s death, their liability has reduced massively. In a way, Calum’s death represents a windfall for the Trust. One would hope that the Trust will now approach the matter with an extremely light touch because what we are left with here is a vulnerable person in an extremely difficult situation.  Our aim is to ensure that Deborah is not left homeless as a result of repaying her liability to the NHS Trust." Mrs Mackay said: "Tees could not have done more. The firm gave honest, professional advice, which I felt able to accept. I am very happy with how Tees dealt with all issues.”

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Chat to the Author, Tim Deeming

Partner, Medical Negligence, Cambridge office

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Tim Deeming, partner and medical negligence specialist in Cambridge
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