IIN THE HIGH COURT OF JUSTICE CLAIM NO: 5MA90607
QUEENS BENCH DIVISION
MANCHESTER DISTRICT REGISTRY
BEFORE MR JUSTICE CHRISTOPHER CLARKE QC
B E T W E E N:
R P Claimant
[A Patient by his Litigation Friend, A P]
-v-
NORTH WEST STRATEGIC HEALTH AUTHORITY Defendant
CASE REPORT
Background to the claim
P was born in January 1944 and was referred to North Manchester General Hospital in 1992 for investigation into problems he was having with deafness and balance. As part of his investigation he underwent a head CT scan.
As a wholly coincidental finding the scan demonstrated a middle cerebral artery aneurysm in the brain. This was noted in P’s records and follow-up suggested but he was not informed of the finding and no follow-up was arranged. His General Practitioner was not informed.
The finding of a cerebral artery aneurysm requires neurosurgical review and if this had taken place it is likely that P would have undergone surgical clipping of the aneurysm.
In March 2003 P suffered a subarachnoid haemorrhage when the aneurysm ruptured. He attended the defendant’s hospital where he remained for a period of days before transfer to Hope Hospital Neurosurgical Unit where the aneurysm was clipped. Despite the surgery he sustained severe brain injury resulting in left hemiparesis and significant cognitive impairment.
P remained in hospital and then in a rehabilitation unit for over a year. He was left with a dense weakness of the left arm and leg and required a supra-pubic catheter. Initially he had some epileptic seizures although these later resolved. P was fully dependent on carers for all aspects of daily living including toileting, dressing, feeding and mobility.
Allegations of negligence
The claimant alleges that the defendant was negligent in that upon receipt of the CT scan report of 7 September 1992 he failed to:-
• Discuss it’s findings with P
• Inform P’s General Practitioner of it’s findings
• Advise/or arrange neurosurgical referral
On the issue of causation P alleged that the CT scan of September 1992 (when he was 48 years old) had revealed a middle cerebral artery aneurysm of approximately 5-6 mm. Had he been referred for neurosurgical opinion at that time he would have undergone successful surgery to clip the aneurysm. The sub-arachnoid haemorrhage of March 3003 would therefore not have occurred and he would not have been left with severe residual disability.
Court proceedings were issued and served in July 2005. The defendant had failed to comply with the protocol for resolution of clinical disputes by serving a response to a letter of claim. The defendant had indicated, upon an application to extend time for the defence, that it had received advice from an independent neurosurgical expert. This suggested that had the claimant undergone surgery in 1992 the results may well have been similar to those experienced in 2003 when the aneurysm was eventually clipped. Nevertheless, liability was admitted by the defendant in September 2005 and the matter proceeded to the investigation of quantum. A schedule of loss was served in October 2006 and counter-schedule in November 2006. A joint settlement meeting was held on 19 December 2006 when settlement was arrived at subject to approval by the Court.
As a result the matter proceeded to approval before Mr Justice Christopher Clarke QC on 22 January 2007.
The Court approved a settlement of the claimant’s case on the basis of a capital sum of £800,000 in addition to periodical payments of £105,000 index linked to the retail prices index. This equated to a conventional award of approximately £2.25 million pounds on the basis of the Claimant’s multiplier.
The Claimant’s legal advisors assess quantum as follows :-
General damages
P had suffered a very serious brain injury at 59 years of age. He had fairly severe sero-negative rheumatoid arthritis that had limited his ability to work and had resulted in a number of joint replacement procedures, but he remained an active and involved member of his family. After his subarachnoid haemorrhage he was hemiplegic and lost considerable cognitive ability rendering him incapable of managing his affairs. He became highly dependant upon others for all aspects of daily living.
The claimant’s advisors took the view that general damages for pain, suffering and loss of amenity would be assessed as an injury at the upper end of the JSB Guidelines (8th Edition) for a moderately severe brain injury in the sum of £150,000.
Interest
(From the issue of proceedings to interim payment February 2006) £1,545
Past losses
Past Care £50,000
Past Accommodation £20,000
Transport £ 3,500
Past loss of earnings £30,000
Increased annual costs £ 2,500
Miscellaneous expenses £ 9,000
Past Court of Protection Costs £ 1,777
Receivership costs £ 7,000
Interest
(To the date of interim payment) £1,000
Future losses – multiplier
There was a significant dispute between the parties on the whole life
multiplier. P contended for a whole life multiplier to age 80 (13.88)
The defendant contended for life expectation to age 72.3 with
a multiplier of 8.78.
Care £1,380,227
Accommodation £177,645
Aids and Equipment £103,803
Transport £65,113
Therapy and medical costs £42,672
Technological aids £53,980
Increased Annual Costs £39,626
Future Loss of Earnings £12,675
Court of Protection Costs £3,965
Receivership Costs £54,003
Total future losses £1,380,227
(Total future losses calculated on a compromise multiplier of 12.45)
Summary
General Damages with interest £151,545
Past losses £135,324
Future losses – excluding care £553,482
Total without care £840,341
Care £1,380,227
Periodic payments and indexation
This matter was dealt with following the decision of Swift
J in Thompstone v. Tameside & Glossop Health Services
NHS Trust EWHC 2904 (QB). In P’s case the defendant
indicated it would only agree to RPI indexation of periodical
payments and would not agree indexation by reference to any
earnings based index such as ASHE 6115, which was used in
Thompstone.
Advice was sought from Mr Ian Gunn of PFP Limited who
was also present at the joint settlement meeting on
19 December 2006.
The advice P received was that it was in his best interests
to secure a combined lump sum payment in respect of all
heads of loss, save for future care, together with periodical
payments for future care. In P’s case, with a relatively
short life expectancy, the risks of accepting a lump sum
payment to meet future care costs should be avoided by
periodical payments. The advice from Mr Gunn was that
with a claimant with a comparatively short life expectancy
possibly an RPI linked payment might be a
better outcome than an earnings related index.
The Court agreed the proposed lump sum and periodical
payment indexed to the RPI.
Claimant’s experts
Mr P J Kirkpatrick Consultant Neurosurgeon
Mr G Westmore Consultant ENT Surgeon
Dr M Rose Consultant in Neuropsychiatric Rehabilitation
Professor M Barnes Consultant Neurologist
Mr D Johnson Neuropsychologist
Julia Ho Occupational Therapist
Maggie Sergeant Care Expert
Steve Martin Information and Communication Technology
Dr R Bernstein Consultant Rheumatologist
Defendant’s expert evidence
Professor AVH Schapira Consultant Neurologist
Dr D A Nathaniel James Neuropsychologist
Caz Lyall Occupational Therapy and Care Expert
Colin Clayton Assistant in Technology
Single joint experts
Mr David Cowan Architect
Ms Mary Clegg Physiotherapist
Counsel for the claimant
Andrew Moran Q.C.
12 Byrom Street Chambers
Manchester
Sally Hatfield
Hardman Street Chambers
Manchester
Solicitor for the claimant
Eddie Jones
JMW Solicitors
1 Byrom Place
Manchester
Counsel for the defendant
Benjamin Browne Q.C.
Solicitors for the defendant
Kirsten Blohm
Hempsons Solicitors
Portland Towers
Manchester
