How Zach’s traumatic birth resulted in a £5million payout for his devastated parents – and is a damning indictment of maternity care failures that cost the NHS almost a BILLION a year

After a long, difficult labour, Claire Keer was exhausted but also full of anticipation, waiting to hear her newborn’s cry. But there was only the rhythmic bleep of medical machinery and the rustling of doctors and nurses as they cut the umbilical cord and swaddled Zach. Otherwise, silence.

‘I went into an absolute panic, thinking: ‘Why can’t I hear my baby?’ recalls Claire, who is now 41.

‘Then, to my horror, when Zach was passed to me I could see immediately that he was blue and floppy. But before I could take it all in, a nurse took him from me.’

Claire started shivering uncontrollably in shock, and amid a flurry of activity and confusion among the medical staff, she became aware of a consultant appearing at her side. ‘My memory of some of the details is hazy, but this I remember clearly — they told me: ‘You’ve got a very poorly baby who might die.’ I just wanted to scream.’

This was all in stark contrast to the scene some hours earlier, when Claire and Zach’s father, Matthew, now 44, had left their home in Liversedge, West Yorkshire, ‘in a bubble of excitement’ to head to the maternity unit at their local hospital.

After a trouble-free pregnancy, they were excited about their future as a family.

‘We couldn’t stop talking about how fabulous it was going to be,’ recalls Claire. ‘And yet here we were being told that our baby may not make it.’

Shattered, and weak from her 13-hour labour, Claire had to be taken by wheelchair to see Zach, who was now in intensive care.

‘I looked at him and just crumpled,’ she says. ‘All I could see was our little boy covered in wires and tubes and attached to monitors. He wasn’t moving and I couldn’t take it. I just burst into tears and asked them to take me back to my room.’

During labour, Zach had become stuck in the birth canal and despite Claire’s pleas for a caesarean — which she was told would be too dangerous as she was almost fully dilated — he was eventually delivered by forceps. ‘I think it took four attempts, and there was so much blood,’ recalls Claire.

At that point, Zach wasn’t breathing and initial attempts to resuscitate him were unsuccessful. A consultant finally got him breathing.

Claire’s son defied the doctor’s bleak prognosis, but spent his first month in hospital (undergoing blood transfusions, tube-feeding and other treatments) — it was only once he had been discharged that the scale of difficulties became apparent.

‘We’d never had a child before and didn’t have anything to compare Zach with, but as the months passed it was clear there were problems,’ says Claire. ‘He couldn’t feed without a tube from his nose into his stomach, but we still didn’t think it was going to be lifelong.’

Zach was referred to a neurologist, and seven months after he was born in June 2011, he was diagnosed with cerebral palsy.

Cerebral palsy is a group of disorders that affect movement, balance, speech, and posture.

‘The diagnosis was so hard to process and at the same time do our best for our son,’ recalls Claire. ‘The stress of having to give your child 24-hour care is massive, and you live on your nerves the whole time, checking on him constantly.’

Zach didn’t sit up or crawl, and ‘he didn’t do any form of talking until he was four’, says his mum.

As well as his mobility, his development has been affected: Zach, now 12, uses a wheelchair and although in mainstream school, he needs a teaching assistant with him throughout the school day.

In 5 to 10 per cent of cases, cerebral palsy is the result of birth complications which means ‘the blood flow to the baby’s brain has been reduced’, explains Leila Hanna, a consultant gynaecologist and obstetrician at Queen Mary’s Hospital, London.

‘How much the child will be affected depends on the length of that deprivation and can vary from baby to baby,’ she says.

After he was delivered, Zach went for 15 minutes with little or no oxygen reaching his brain, says Claire. ‘Two junior doctors failed to resuscitate him because of mucus, which created difficulty clearing the airway,’ explains Guy Forster, a partner at law firm Irwin Mitchell, who represented Zach and his family.

‘The consultant arrived and was able to intubate straight away.’

The family argued that the delay had caused Zach’s brain injury.

But although this was never admitted, and despite denying any liability, two years ago the hospital trust agreed to pay Zach £5 million — this would ensure he and his family ‘receive support for all the ongoing care he needs’, it said at the time.

The amount Zach was awarded may sound like a lottery win, but the reality is far from it.

‘This money has to last my child for the rest of his life — not least for when I am no longer around, which fills me with fear,’ says Claire.

‘The notion that we’re ‘tripping the light fantastic’ and having wonderful times is completely wrong.

‘This is about pieces of equipment or therapy that give him the chance of having a decent life,’ adds Claire who gave up her job as a shop manager to look after her son.

‘And because it has to last for Zach’s lifetime, I have to budget for that. If anything, I really worry that we will have enough. I don’t know how things like this last.’

There are a growing number of parents in this dreadful position. Last month, it was revealed that medical negligence claims against the NHS have nearly doubled in the past decade.

Figures from NHS Resolution (which provides independent mediation for personal injury and clinical negligence claims) show that last year there were 364 claims, each for more than £3.5 million, compared with 191 ten years before.

And more than three-quarters of the cases were for maternity-related damages. The NHS Resolution figures showed that the NHS paid out £2.7 billion in damages and legal costs last year alone — a 9 per cent rise from the year before, with more than a third of this cost for maternity claims.

This comes as the quality of some NHS maternity care comes under increasing scrutiny.

Alarmingly, two out of five maternity units in England are providing substandard care to mothers and babies, according to the most recent assessment by the Care Quality Commission. The watchdog rated 39 per cent of the maternity units it inspected in the year to July 31, 2022, as requiring improvement or ‘inadequate’ — the highest proportion on record.

And earlier this month, it was announced that a review into maternity services provided by Nottingham University Hospitals Trust will examine 1,700 cases, making it the largest such inquiry into maternity care ever in the UK. The reason that claims are rising are multiple and complex — in some cases medical breakthroughs mean that babies who might once not have survived now do, but with long-term complications.

But hospital culture, too, may be a factor. A report into the deaths of 200 babies and nine mothers at Shrewsbury and Telford Hospital NHS Trust between 2000 and 2019, found medical interventions were withheld in an effort to encourage natural births and so keep caesarean rates low.

Separately, Dr Kim Thomas, the chief executive of the charity Birth Trauma Association has described the problem as medical staff not always listening to parents when they say there’s a problem — ‘women’s concerns are being dismissed’.

Staffing levels are a factor too, with 4,522 fewer NHS midwives than there were a decade ago.

But this means nothing for the day-to-day lives of the families who have been affected. How does one compensate them for the medical negligence that condemns an otherwise healthy baby to a lifetime of difficulty?

What do ‘telephone number’ compensation figures actually mean for the families involved? The reality, suggests Claire and Zach’s story, is a lifetime of careful frugality, and worry about future support.

Medical negligence damages are paid according to strict criteria based on the past, current and future needs of the claimant — including the therapies they need, any equipment and usually a move to a house suitable for wheelchair use and other adaptations, explains Irwin Mitchell’s Guy Foster.

‘But usually, by far the biggest element is the cost of professional carers for the individual’s lifetime, often required 24/7 from a team of carers.’

The calculations are based on the Ogden tables (a set of statistical tables and other details used in court cases and by lawyers and insurance companies) and will take into account the annual cost of care.

But often there will also be an annual payment (recalculated each year to take account of the rising cost of care) for the remainder of life. This will also take into account predicted life expectancy and the fact that you might be ‘receiving money for something now that you will not need for a period of years’ — for instance, children with cerebral palsy may develop other conditions in time.

‘Children with cerebral palsy become adults with cerebral palsy,’ says Yolly Broek, a neurotherapist and clinical lead at The National Bobath Cerebral Palsy Centre in Watford. ‘Cerebral palsy can put a huge physical strain on the body over time. This can result in additional medical problems and support requirements, all of which require a lifetime of resourcing.’

It was only after a friend who is a nurse told Claire that she had a right to know what had happened to her son and would be eligible for Legal Aid, that she decided to take action against the hospital. First, she asked to see her medical notes: she then approached a lawyer.

The process of seeking justice and compensation was both long and draining, says Claire. ‘You go to endless appointments and meetings with medical expert witnesses — some of whom are based miles away — about your child’s potential life expectancy.It was awful,’ she says. ‘Then there are regular letters to read and review from the solicitors. It can be really overwhelming.’

Throughout the process, Claire had to rely on NHS therapy teams to supply Zach with a wheelchair and orthotic footwear, as well as claim benefits such as carer’s allowance and disability allowance ‘just to keep afloat’.

‘Making a medical negligence claim is never an easy option,’ says Dr Kim Thomas. ‘The bar for proving negligence is high, and because hospitals often refuse to settle the claim out of court, it can take years to resolve a case.’

‘In cases where a child is severely injured and in need of lifelong care, parents often have no choice but to make a claim, because otherwise they would not be able to afford to pay for the care their child needs, which will often amount to millions of pounds,’ says Dr Thomas.

‘Sometimes, too, parents themselves need financial compensation because the mother’s injuries mean she can no longer work.’

Following the settlement for Zach, Claire spent £20,000 on a powered wheelchair and £50,000 for an adapted car to take the chair, as well as buying a bungalow which is being adapted so that Zach can move about safely and easily in his home. (The family were previously in an entirely unsuitable ‘two up two down’). The rest of the lump sum is invested for the family by an asset manage-ment company.

Although the money is helping Claire create the best possible environment for Zach, he is ‘very dependent’ on his mother, emotionally and physically.

Currently, Claire provides for Zach’s personal needs, but if she becomes too frail or when she dies, someone else will have to be paid to do all that. (Claire and Zach’s father separated several years ago, and he has his son on alternate weekends.)

She is careful about money. ‘Food prices are extortionate, so I must be really careful when I shop, buying home labels and looking for bargains,’ she says. ‘Zach burns up so many calories as his body has to work so hard to perform even simple movements, so he has to be fed frequently with the best nutrition our budget provides.’

Claire has fears about the future. ‘Who knows what can crop up when you have a severe condition. And I worry what will happen to Zach when I go: it breaks my heart,’ she says.

Zach himself is patently an extraordinary young man — in June 2020 he raised £20,000 for the Epilepsy Society by completing, for him, a gruelling 130 laps of his garden using a wheeled frame: it was exhausting, the first time he had done such a walk unaided.

His personality makes him popular with those who know him. ‘Zach is just so entertaining: cheeky, quick-witted,’ says his mum, proudly.

But, for all her pride in her son, Claire remains deeply angry about the rising number of cases of maternity medical negligence and the needless suffering these deliver.

‘More pay-outs will be made because of these completely avoidable situations. I do feel that had I been given a caesarean things would have been so different,’ she says.

‘No amount of money can compensate for Zach’s condition or the life he should have had. But at least it will help towards giving my son the help he needs.’