ATE Insurance in Action: Birth Injury Case Study

By Shelley Carrick-Forrester, Underwriter

Estimate read time 1 minute 32 seconds

Temple was approached in 2021 by solicitors seeking ATE insurance cover for a complex birth injury claim. The matter had previously been supported through legal aid funding, but additional funding and insurance protection were required to enable the case to progress.

The claimant was diagnosed with bilateral cystic periventricular leukomalacia, resulting in spastic diplegic cerebral palsy. The mother was known to be Group B Streptococcus positive and had experienced a pre-term pre-labour rupture of membranes that had not been diagnosed. The claimant was subsequently born at 29+6 weeks’ gestation, with evidence of infection identified shortly after birth.

The case centred on whether earlier recognition and treatment of the infection could have prevented the injuries sustained. Expert evidence was obtained across a number of disciplines, including obstetrics, neonatology, microbiology and neuroradiology.

The primary allegation of breach of duty related to the failure to administer appropriate antibiotic treatment. The claimant’s case was that, had antibiotics been provided at the relevant time, the injury would have been avoided.

As the litigation progressed, a number of Part 36 and Calderbank offers were made in relation to liability. Following advice from the claimant’s legal team, those offers were rejected, with Temple continuing to support the claim throughout.

Given the complexity of the issues involved and the need for ongoing expert evidence, Temple subsequently agreed to increase the level of indemnity available under the policy, allowing the matter to proceed to trial.

Unfortunately, the claim was unsuccessful at trial. However, Temple’s involvement did not end there. The claimant’s legal team continues to investigate the prospects of an appeal, and Temple remains committed to supporting the case by providing ongoing ATE cover while those considerations continue.

What this demonstrates in practice

Complex birth injury claims often involve multiple expert disciplines, difficult questions of causation and significant disbursement expenditure over a number of years. In cases of this nature, ATE insurance can provide important protection throughout the life of the claim, including where proceedings extend beyond the original expectations of the parties involved.

If you would like to discuss any of the issues raised in this article, please call Shelley on 01483 514817 or send an email to Shelley.Carrick-Forrester@temple-legal.co.uk