Landmark legal victory paved way for out of court settlement

A severely disabled Warwickshire man has received £2 million in compensation - thanks to a landmark High Court victory which allowed him to take legal action against the hospital he believed was responsible for his disabilities.

28-year-old Jonathon Khairule from Tile Hill in Coventry has cerebral palsy and is severely disabled. He is in a wheelchair, is unable to talk and his only means of communication is by painstakingly typing on a keyboard with his nose.

Yet, despite his physical disabilities, his determination to access justice saw him mount a legal challenge against Tameside General Hospital in Ashton under Lyne, near Manchester who had originally argued that he was too late to bring a claim against them. Although the Trust has continually refused to accept liability, medical lawyers at Irwin Mitchell solicitors have now secured £2 million for him in an out of court settlement.

However, the medical law expert who represented Jonathan, fears that the Trust’s refusal to admit liability means lessons may not have been learned.

Jonathon Khairule, was born in Tameside General Hospital on 18th June 1981. During his birth he suffered starvation of oxygen to the brain and it is claimed that critical delays to deliver him resulted in his cerebral palsy.

Jonathon left home at just 16, moving to Coventry to study at Hereward College of Further Education where he gained a distinction in advanced information technology.

Mr Khairule explained: “I knew I had cerebral palsy from birth, but I had always been led to believe that it was just one of those unfortunate things which could not have been avoided.  It wasn’t until I was in my early 20s that I started to do some investigating. At that stage I really just wanted answers.

“I contacted various legal firms but no-one wanted to touch my case because I was over 21 and they told me I was technically out of time to bring a claim for a birth injury.  Irwin Mitchell was the only law firm to agree to take up my case. However, they did warn me from the outset that it could be a tough legal battle but after obtaining advice from independent medical experts they advised me there were concerns about the way my birth was handled and I was determined to get justice.”

Sara Burns, a medical negligence specialist with Irwin Mitchell in Birmingham explained: “Jonathon first contacted us more than 18 months after his 21st birthday which meant technically he was out of time to bring a claim. However, the law does give the Court the discretion in very rare circumstances to allow a case even though it is out of time.

“We examined the medical evidence and became convinced that what had happened to Jonathon couldn’t be explained away as ‘one of those things.’ We discovered that heart monitoring performed at the time of his birth showed Jonathon’s foetal heart rate was decelerating alarmingly and our expert’s view was this should have prompted midwives to take immediate action.  Even after obstetricians intervened, Jonathon was not delivered promptly. A Ventouse delivery and a forceps delivery both failed and by the time he was finally delivered by caesarean section he was in a very poorly condition.”

In July 2008, the High Court officially granted Mr Khairule permission to pursue a legal claim, despite technically being out of time. Irwin Mitchell subsequently launched a civil action on his behalf against North West Strategic Health Authority.

In December 2009, the case for liability was due to go to trial in the High Court in Birmingham, but following a last minute offer from the Trust, Mr Khairule agreed to accept the out of court settlement of £2 million.

Commenting on the settlement, Sara Burns said: “We are so pleased to have secured this settlement for Jonathon. He has been through so much in his life and has no family support, but despite this he has been determined to battle for justice for his birth injuries.

“This financial settlement will help to improve his quality of life by purchasing a specially adapted home and also help to fund round the clock care which is so vitally important for him. Without a carer to assist him, Jonathon is effectively a prisoner in his own home so decent care support effectively provides him with a lifeline to the outside world.

 “However, we remain concerned that the Trust has refused to admit liability for what happened to Jonathon and as such we cannot be certain that they have learned lessons.

“In situations where an unborn baby is showing foetal distress, as was clearly the case here, every second is precious. Had Jonathon been born even five minutes earlier, it is probable that he would not have suffered the catastrophic injuries which he now has to live with and which affect even the most basic aspects of his life, which most of us take for granted.”