One million euros for Ilias’s parents: exemplary conviction for negligent childbirth in Murcia

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Ilias needs help to get on the swings, eat, dress … Medical malpractice during childbirth sentenced her to be born with obstetric brachial palsy, which led to strength and mobility problems from the shoulder to the hand of her right arm . “I would prefer that my son was well, before any sum of money“, Hassan, his father, emphatically underlines, after learning that a Madrid court has ruled that Ilias will be compensated with one million euros by the insurer of the gynecologist who took care of her delivery.

“The health of my son is priceless,” insists the father of this little boy who loves turtles. To Hassan, the dizzying compensation does not make him forget the ordeal that with only five years of life Ilias has suffered from obstetric brachial palsy that, to top it off, includes a neuroma: an ineffective regeneration of the nerve endings in his right arm. “They have operated on him three times and they do not rule out a fourth“, he pointed worried.

Neither the three surgeries, nor the palliative treatments based on grafts and botox injections have prevented the aftermath of childbirth has resulted in a 33% disability, as reflected in a medical opinion from the Murcian Institute of Social Action.

“Your arm is like a crescent – you can’t straighten it“, exemplifies the father about the physical and aesthetic consequences suffered by the little one, whose shoulder blade protrudes and his right shoulder is not aligned with the left (winged scapula). In addition, he has three scars on his body.” Ilias is little talkative. “The innocence of a child does not prevent him from being psychologically affected by a childhood marked by rehabilitation sessions with the physio – because of a negligent birth.

“We have had a fatal few years.” The hell of this Moroccan family began on June 5, 2016, in the delivery room of Hospital Los Arcos de San Javier, where the wife of this seasoned trucker on international routes gave birth. “I witnessed the birth of my wife and when my son was born he moved both legs, but only one of his arms, so a doctor took him to evaluate him because that was not normal.”

– What explanation did the doctor offer you after evaluating your son?

– Hassan: She told me that maybe her right arm was not moving because she had suffered a strain during delivery. The days passed and it did not improve. My wife was discharged, but Ilias was admitted. Then they released him and we continued to see the doctors. We endured like this for a year, we only wanted them to help him heal, but when I saw that my son was not improving, I turned to Justice to fight for his future.

The couple, settled in the Murcian town of Los Alcázares, put the case in the hands of the Association The Defender of the Patient. “If my son, now, could not even take a toy with his right hand. How was he going to live like this? How was he going to find work?”, Reflects Hassan, who at 55 years old accumulates so many shipments of agricultural products to England as vicissitudes lived between Morocco and Spain.

Hassan was not willing to allow his third son, the youngest of the house, to suffer hardships in the future, especially after the hard experiences that the head of the family has gone through: “I had to go from Morocco to the Sahara because some Islamists had threatened me when I was studying French Language and Literature at university; then I worked as a waiter in Laayoune for 200 euros a month; I crossed into Spain by boat and for four months I slept lying in the field while working as an agricultural laborer to find a better future for myself. ”

And 21 years after landing in the ‘promised land’, she was clear that she was going to purge the legal responsibilities of the physical consequences that her son suffered after giving birth. Ignacio Martínez, lawyer specialized in health law, attached to the El Defensor del Paciente Association, has managed to demonstrate in court that the gynecologist who was on duty on June 5, 2016, at the Los Arcos de San Javier Hospital, committed malpractice during Ilias’ delivery.

The key to the case

The key to the legal process was determine if the cause of Ilias brachial palsy was caused by excessive traction and disproportionate of the fetal neck, in the maneuver that was executed during delivery. The objective of this maneuver was to solve the shoulder dystocia that the child presented after the head came out and that caused difficulties to remove it through the cervix, with the risk of even suffocation. So additional obstetric maneuvers had to be carried out to bring the third child of this Moroccan couple into the world.

The lawyer of the gynecologist’s insurance company, alleged to the judge that the delivery took place in a eutocic manner: “without the intervention of the insured being necessary.” He even went so far as to affirm that when the gynecologist arrived at the delivery room: “the fetus had already been born and she did not have to intervene.” The lawyer also called the requested compensation “disproportionate” and “lacking any legal basis”, arguing that the medical action was in accordance with the care protocols.

The lawyer Ignacio Martínez sustained his accusation in an expert study that concluded that the assistance of the gynecologist on duty was contrary to the ‘lex artis’. In fact, risk factors were not taken into account, such as Ilias had a fetal macrosomia: his weight was above that corresponding to the fetal age. “Once shoulder dystocia occurred, the sequential actions that the protocol provides for to avoid harm to the child were not carried out, despite the fact that there was time for it, extracting to the baby with disproportionate force based on the serious injuries he suffered“, as Martínez indicated.

The ruling of the Court of First Instance number 3 of Madrid not only agrees with the Association El Defensor del Paciente, but also tip a blow to the argument used by the lawyer of the insurance company who defended the gynecologist. On the one hand, he describes the qualification of a delivery as eutocic, when shoulder dystocia occurred, as “not rigorous”, and on the other, “confirms deficient documentation of the medical history (of Ilias), with clear omissions“as well as a” flagrant contradiction “on the part of its expert.

The magistrate’s ruling -which admits an appeal- contains some paragraphs that are lapidary, when reporting the medical malpractice that took place that June 5, 2016 in the delivery room of Hospital Los Arcos de San Javier:

“We meet first, with a series of actions or omissions that are directly attributable to the gynecologist on duty; The medical history, which is the responsibility of said professional, due to its omissions and contradictions, does not adequately reflect the process of childbirth, not stating the moment in which the difficulty of the removal of the shoulders occurs, nor does it appear what instructions the gynecologist would have given Before their appearance in the delivery room and the time invested in reaching it, the protocol for shoulder dystocia (the maneuvers to be carried out to extract the baby) was not observed, or was unduly observed … “.

1,499 days lost

The sentence when establishing compensation for damages at one million euros, takes into account that Ilias -because of this obstetric brachial paralysis- carries a whopping 1,499 days “of damage due to temporary loss of quality of life.” All this, as a result of the surgical interventions, the casts on the arm, the rehabilitation sessions with the physiotherapist …

The ruling also emphasizes that the horizon does not look better for this 5-year-old boy, because you will have to receive rehabilitation for life and when you try to enter the labor market you will find a handicap: “You will not be able to carry out in the future all those jobs that involve making efforts with both arms.”

– What will you do with the million euros of compensation?

– Hassan: In the early years my son had three rehabilitation sessions at the hospital and then they took two away. We had to complain and now he receives two sessions a week. In addition, they removed the ambulance transport service and my wife had to take two buses to go to Ilias to school in Los Alcázares to take him to rehabilitation in San Javier, while a neighbor went to get my other two children to school because I spend ten days away from home with the international routes. With this compensation, I am going to find a doctor to heal Ilias and I am going to buy him a house in his name so that he can have a decent life.

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