Monday 27 October 2014

When Is A Claimant Atypical?

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By Killian Garvey, Kings Chambers Pupil

For the purposes of determining life expectancy, when is a claimant atypical?

The usual order of things, when assessing quantum, is to determine a claimant’s life expectancy by reference to the Ogden Tables. Indeed, use of the those tables was endorsed by the House of Lords in Wells v Wells, where Lord Lloyd of Berwick stated that, ‘the tables should now be regarded as the starting-point, rather than a check’.

Tables 1 and 2 provide ‘Multipliers for pecuniary loss for life’ for males and females. These multipliers are based on the projected mortality rates of the United Kingdom as a whole. However, they do not account for all claimants. Indeed, as paragraph 5 of the Explanatory Notes to the Ogden Tables states, these multipliers can be modified ‘where there is clear medical evidence in an individual case to support the view that the individual is atypical, and will enjoy longer or shorter expectation of life.’

In theory this seems logical. In practice, however, this leaves lawyers in the difficult position of trying to determine when an individual is atypical. Of course they will not be alone in this; the lawyer will likely have medical evidence either supporting or refuting this proposition. But at what point should a lawyer instruct a medical expert to assess this? And what threshold is a medical expert meant to apply to this claimant?

Consider, for instance, a claimant with a body mass index of 40. Clearly this person would be classed as being clinically obese. But are they atypical? Do the Ogden Tables apply to them?

You may notice that this article has thus far posed a number of rhetorical questions, whilst not providing any answers. Unfortunately this is indicative of the law on this issue. These questions have not been properly addressed in any reported decisions at present, which leaves the lawyers faced with these questions guessing as to the answer.

So at the risk of posing yet another question: where should the threshold be set for determining when a claimant is atypical?

The writer’s view is that the courts should adopt a conservative approach to this question, by setting the threshold relatively high. The reasons for this are threefold:
-          The Ogden Tables are generated by reference to the UK’s average population. Thus, this includes, on the one hand, smokers, drinkers and obese people, all of whom might have reduced life expectancies, and on the other hand, health-obsessed yoga-practicing vegans, who may have increased life expectancies. The Ogden Tables, therefore, account for most people, meaning that they should only be deviated from in exceptional circumstances. Doing otherwise would render them obsolete.
-          If the threshold for claimants being atypical was set relatively low, then it would become commonplace for lawyers to instruct medical experts on life expectancy. Not only would this exponentially increase the cost of litigation, it would also arguably lead to unnecessary satellite litigation concerning the admissibility of life expectancy evidence.
-          Legal certainty is an underlying principle in all litigation. Adding another variable as to what multiplier should be applied would only serve to undermine this in personal injury litigation.

So, if the threshold for claimants being atypical should be set high, then how high? And how should this expressed?

It would seem that the difficulty one faces with answering these questions is that however this threshold test is expressed, it will need to remain relatively vague. The courts cannot realistically stipulate specific guidance in answer to these questions. For example, take the claimant considered above with a BMI of over 40. Is it reasonable to deviate from the Ogden Tables with this claimant simply because of their BMI? What if they were a fit rugby player with a family history of relatives who live to well over 100? Presumably not in those circumstances.

The alternative is to only allow deviation from the Ogden Tables where the medical evidence indicates that the claimant’s reduction in life exceeds a certain period (eg. 8 years). Arguably though, this would only lead to a plethora of experts being asked to state that the claimant’s life expectancy is over 8 years below (or above) average.

It is submitted, therefore, that this issue must be determined on a case-by-case basis. Beyond stating that the threshold for deviating from the Ogden Tables should be set relatively high, ultimately it is heavily reliant upon the discretion of the judge trying the action. And inevitably this judge will end up applying the test referred to by Stuart-Smith LJ in Cadogan Estates Ltd v Morris:


‘This seems to me to be an application of the well know elephant test. It is difficult to describe, but you know it when you see it’.

Wednesday 22 October 2014

Hockley: The High Court on Denton, set aside, and telephone hearings


By Richard Borrett 

The case of Hockley v North Lincolnshire and Goole NHS Foundation Trust (available on Lawtel) primarily concerned an application for set aside of default judgement where the Defendant trust had filed its acknowledgement of service 13 days late.

Much of the judgement is fact sensitive, but there is some useful guidance on the application of all of the Denton stages and criteria, which is worth reading in full.

Additionally HHJ Richardson QC gave clear indications on a number of issues which are worth setting out briefly:

1. The relevance of rule 3.10 to set aside applications:
[34] – The relevant considerations to be applied in respect of both of these provisions are similar, albeit couched in different language… the difference in language is purely semantic and not of importance. The jurisprudence underpinning both rules is the same. I cannot envisage a case where relief form sanction would be permitted but there are no good reasons for setting aside the judgment. The reverse is also true: how could it be said there are good reasons for setting aside the judgment but they would not meet the criteria for relief from sanction.

HHJ Richardson QC also said, (at [42]) that the three stage approach in Denton had ‘considerable relevance’ to an application to set aside a default judgment when considering the good reason ground in CPR part 13.3(1)(b)

These findings go some way to resolving the somewhat unclear position left by the simultaneous judgements in Chartwell and Paul Dean Davies (see my previous blog on Denton here)

      2. Application of the Denton Guidance:
At [57] the Judge noted that “…the acknowledgement of service is not a trivial or unimportant step in litigation… the consequence of a failure to comply with the requirement to file it on time has the potential of a default judgement. That adverse consequence [default judgement] reveals the importance of this step in litigation. If it was of relative unimportance, the sanction for non-compliance would hardly be a default judgement.

This is an interesting analysis and is likely to provide scope for argument (both for defaulting parties and respondents) in relief applications.

It could easily be argued the sanction in r32.10 is a serious sanction (restricting the evidence a party could call) and indicates therefore that late service is necessarily a ‘serious or significant’ breach.

3. Appropriate use of telephone hearings.
At [86] – [87] the Judge gave his views on the use of telephone hearings.

HHJ Richardson QC was in “no doubt that the determination of this difficult decision should not have been undertaken by way of telephone hearing. Such hearings are amenable to short decision making cases and matters which are truly procedural rather than requiring a fully reasoned exercise of a judgement”.

Those conducting them regularly will be aware of how accurate HHJ Richardson’s views on telephone hearings are. Though very useful, they are often not conducive to the type of consideration and argument which is required. These comments will be of use to those seeking to avoid them in cases where they are inappropriate.


Friday 1 August 2014

Medical Treatment Decision



In An NHS Trust v Mrs J (by her litigation friend, the Official Solicitor) [2014] EWCOP 2675 Mr Justice Bodey dealt with a case concerning an elderly woman who had been diagnosed with cancer and required further investigation and treatment but also lacked capacity to consent to the same. Despite numerous attempts to secure her cooperation she refused, insisting that she did not need treatment. Her family supported her decision and considered that she could recover capacity with the right treatment for her underlying mental disorder. The Trust was concerned not to lose the opportunity to provide potentially curative treatment and referred the matter to the Court of Protection seeking declarations in relation to capacity and authority to carry out treatment. Despite there being a number of contraindications against compelling Mrs J to undergo the proposed treatment, Bodey J came to the conclusion that it would be in her best interests and granted authority to use restraint to convey her to hospital and to enable the treatment to be provided.

The Trust was represented by Adam Fullwood of Kings Chambers instructed by DAC Beachcroft.
Approved judgment:


Wednesday 9 July 2014

Denton, Decadent and Utilise: Restating Mitchell?

By Richard Borrett

Introduction
The background to the 4/7/2014 court of appeal decision (available here http://www.judiciary.gov.uk/judgments/denton-v-th-white-ltd-de-laval-ltd-decadent-vapours-ltd-v-bevan-salter-celtic-vapours-ltd-utilise-tds-ltd-v-davies-bolton-community-college-corp-watertrain-ltd/) needs no introduction to those engaged in civil litigation in recent months. Suffice it to say that the Mitchell decision has caused considerable confusion and contradiction as to the correct approach to applications under CPR 3.9.
What follows is a brief analysis of the judgment and where it leaves the issue of relief from sanctions.

Mitchell & the cases which follow
Interestingly and helpfully the Court of Appeal lists ([13] – [20]) those cases which are, in its view, the ‘most important’ cases decided since Mitchell:
Given that the court of appeal (in its view at least) is merely ‘restating’ the decision in Mitchell, those cases are still in theory relevant to applications for relief.
Having considered those the court said that “The guidance given at paragraphs 40 and 41 of Mitchell remains substantially sound. However in view of the way it has been interpreted, we propose to restate the approach that should be applied in a little more detail.” Whether what follows is really a restatement is a matter for debate.

The Three-Stage Guidance  
The court sets out (at [24]) a three stage process for the assessment of applications under CPR r3.9:
The first stage is to identify and assess the seriousness and significance of the “failure to comply with any rule, practice direction or court order” which engages rule 3.9(1). If the breach is neither serious nor significant, the court is unlikely to need to spend much time on the second and third stages. The second stage is to consider why the default occurred. The third stage is to evaluate “all the circumstances of the case, so as to enable [the court] to deal justly with the application including [factors (a) and (b)]”.
Further detail is given on the application of each stage of the test.

Stage 1
The judgment goes some way to assisting with the meaning of ‘triviality’ which caused considerable inconsistency in decision-making.
The court says (at [26]) that “it would be preferable if in future the focus of the enquiry at the first stage should not be on whether the breach has been trivial. Rather, it should be on whether the breach has been serious or significant”.
It goes on to consider the test of ‘materiality’ proposed by the Bar Council and Law Society (who intervened in the appeal):
It was submitted on behalf of the Law Society and Bar Council that the test of triviality should be replaced by the test of immateriality and that an immaterial breach should be defined as one which “neither imperils future hearing dates nor otherwise disrupts the conduct of the litigation”. Provided that this is understood as including the effect on litigation generally (and not only on the litigation in which the application is made), there are many circumstances in which materiality in this sense will be the most useful measure of whether a breach has been serious or significant. But it leaves out of account those breaches which are incapable of affecting the efficient progress of the litigation, although they are serious…
We therefore prefer simply to say that, in evaluating a breach, judges should assess its seriousness and significance.
Therefore the new question is whether a breach is serious or significant. Whether a breach disrupts the conduct of litigation will in many cases (but not always) answer that question but there are breaches which do not so disrupt, but which could still be serious.
Finally, the court reiterated that where a breach is not ‘serious or significant’ (or trivial as was), then relief will usually be granted ([28]).

The Second Stage
The second stage is, simply, to consider what (if any) the reason for the breach is. Considering why the default occurred will be important at the third stage.

The Third Stage
The court quite accurately recognised that the main difficulty which has arisen has been the ‘paramount importance’ given to factors (a) and (b) in rule 3.9.
Importantly the court appeared to row back from this a little and said (at [32]) that those two factors
may not be of paramount importance, [but] we reassert that they are of particular importance and should be given particular weight at the third stage when all the circumstances of the case are considered”.
In considering applications, the correct approach is that the court should ([35]):
…give particular weight to these two important factors. In doing so, it will take account of the seriousness and significance of the breach (which has been assessed at the first stage) and any explanation (which has been considered at the second stage). The more serious or significant the breach the less likely it is that relief will be granted unless there is a good reason for it. Where there is a good reason for a serious or significant breach, relief is likely to be granted. Where the breach is not serious or significant, relief is also likely to be granted.

The court noted the following which in the authors view is one of the most important passages in the judgment ([38], emphasis added):

…some judges are approaching applications for relief on the basis that, unless a default can be characterised as trivial or there is a good reason for it, they are bound to refuse relief. This is leading to decisions which are manifestly unjust and disproportionate. It is not the correct approach and is not mandated by what the court said in Mitchell: see in particular para 37. A more nuanced approach is required as we have explained. But the two factors stated in the rule must always be given particular weight. Anything less will inevitably lead to the court slipping back to the old culture of non-compliance which the Jackson reforms were designed to eliminate.

Non-Co-operation
Equally important as the three-stage test, the court went out of its way to criticise the ‘non-cooperation’ between lawyers since Mitchell. The most important passages are these:
[41] …it is wholly inappropriate for litigants or their lawyers to take advantage of mistakes made by opposing parties in the hope that relief from sanctions will be denied and that they will obtain a windfall strike out or other litigation advantage. In a case where (a) the failure can be seen to be neither serious nor significant, (b) where a good reason is demonstrated, or (c) where it is otherwise obvious that relief from sanctions is appropriate, parties should agree that relief from sanctions be granted without the need for further costs to be expended in satellite litigation. The parties should in any event be ready to agree limited but reasonable extensions of time up to 28 days as envisaged by the new rule 3.8(4).
[42] It should be very much the exceptional case where a contested application for relief from sanctions is necessary.

[43] The court will be more ready in the future to penalise opportunism. The duty of care owed by a legal representative to his client takes account of the fact that litigants are required to help the court to further the overriding objective […] It is as unacceptable for a party to try to take advantage of a minor inadvertent error, as it is for rules, orders and practice directions to be breached in the first place. Heavy costs sanctions should, therefore, be imposed on parties who behave unreasonably in refusing to agree extensions of time or unreasonably oppose applications for relief from sanctions. An order to pay the costs of the application under rule 3.9 may not always be sufficient. The court can, in an appropriate case, also record in its order that the opposition to the relief application was unreasonable conduct to be taken into account under CPR rule 44.11 when costs are dealt with at the end of the case
That is as strong an indication as could be given by the Court of Appeal as to the behaviour which is expected of parties and the consequences of unreasonableness

Conclusions
The three stage guidance set out gives further assistance in the making of r3.9 applications. It should diminish the weight currently being given to factors (a) and (b), and give greater weight to the rest of r1.1.
There is, however, no return to pre-Mitchell days and there is no room for laxity.
Equally importantly, respondents (to applications under r3.9) will now have to think very carefully before opposing any application for relief or for an extension of time (including under the newly amended rule 3.8).

Problems
A number of issues remain following this decision.

The effect of rule 32.10
The Court of Appeal in Chartwell indicated that, any application to rely upon a late witness statement was in effect an application under rule 3.9: the sanction had ‘bitten’.
However no argument was in fact heard on that point and the indication (however strong, and even though from the Court of Appeal) is obiter.
In another case decided on the same day as Chartwell, Paul Dean Davies (http://www.bailii.org/ew/cases/EWHC/Admin/2014/2034.html), the High Court decided the exact opposite.  
This post is not the place for a full analysis of the issue, but it is one which remains unhappily unresolved, and on which there are now directly contradictory decisions from the courts.

Serious breaches not affecting hearing dates
Though the issue of ‘triviality’ is somewhat clearer following Denton, there will remain cases which do not imperil hearing dates or affect the conduct of litigation, but which, in the court’s view, are serious.

Assessing which of those breaches (like paying court fees on time) are serious may present some difficulty. The important points are (i) that the starting point should be the effect on the conduct of litigation generally, and (ii) that ‘seriousness’ is not the end of the matter, and though a failure may be sufficiently serious to pass through stage 1, it has to then be considered in ‘all of the circumstances’ at stage three.  

Tuesday 8 July 2014

Quantum Updates - July 2014


CLINICAL NEGLIGENCE QUANTUM UPDATES

Courtesy of Rachel Galloway. 

S v EAST SUSSEX NHS HEALTHCARE TRUST (2014)

Lawtel Reference: AM0202408
Age of Claimant: 59
Injury: Lingual nerve injury
PSLA Damages: £10,250

The Claimant suffered an injury to the lingual nerve.  The Claimant had not been warned of the risk of damage to the nerve when she underwent removal of retained roots at LL8.  The Claimant was left with a permanent injury, which included discomfort, numbness (affecting the lower gum) and an internal alteration in taste associated with certain types of food.  Settlement was agreed (and approved) in the sum of £10,250 total damages (to cover PSLA only) – no 10% uplift was applied.

MEYERHOFF v ANNA RENATE MARFIANY (2014)

Lawtel Reference: AM0202451
Age of Claimant: 33
Injury:  Root canal treatment negligently performed requiring further root canal treatment.  Crown negligently fitted, requiring another crown.  In addition, part of a broken dental instrument was found within the root canal. 
PSLA damages: £2,500

General damages of £2,500 (with no 10% uplift) were agreed between the parties and £2000 was agreed for future treatment costs.

GOSTLING (DECEASED) V SOUTH LONDON HEALTHCARE NHS TRUST (2014)

Lawtel Reference: AM0202449
Age of Claimant: unknown
Injury: pre-death pain, suffering and loss of amenity
PSLA: £10,000
Total Damages: £120,000

The deceased suffered a fatal heart attack.  Following admission to hospital with back pain, the hospital failed to take blood cultures, which would have revealed that he was suffering from an acute kidney injury and bowel inflammation (which ultimately resulted in cardiac arrest and death).  The deceased had been taken to hospital on the 29th April 2008 and died on the 11th May 2008.  General damages were agreed at £10,000 (with no 10% uplift applied).  The overall award of £120,000 included general damages, a bereavement award, care, dependency and loss of services of a husband. 

RYDER v WARRINGTON (2014)

Lawtel Reference: AM0202452
Age of Claimant: 26
Injury: burn to lip
PSLA: £17,000

The Claimant suffered injury when surgical equipment overheated during the course of a tooth extraction.  She suffered a burn to her lower lip which took several weeks to heal and during which time she suffered considerable pain and discomfort.  She was left with permanent scarring.  The burn measured 0.5 cm x 3 cm.  The Claimant suffered psychological injury due to the scarring, which made her feel embarrassed.  The scar was permanent.  Damages for PSLA were agreed at £17,000 (with no 10% uplift).  The total damages agreed amounted to £18,500, which included £500 for past care and assistance and £1,000 for future makeup costs. 

L v NHS COMMISSIONING BOARD (2014)

Lawtel Reference: AM0202436
Age of Claimant: 64
Injury: Unnecessary pancreatoduodenectomy operation, fatigue, bowel weakness (permanent) and exacerbation of a pre-existing psychiatric condition (6 months).   There was a small risk that further surgical procedures would be required in the future. 
PSLA: £35,000

The Claimant was wrongly informed that she had a poorly differentiated carcinoma and she underwent an unnecessary pancreatoduodenectomy operation.  General damages in respect of pain, suffering and loss of amenity were agreed in the sum of £35,000 (no 10% uplift applied) and special damages (miscellaneous expenses) were agreed at £10,000. 


MT v SK (2014)

Lawtel Reference: AM0202461
Age of Claimant: 39
Injury: traumatic pneumothorax to the left lung
PSLA: £7,000

The Claimant suffered a traumatic pneumothorax to the left lung following an acupuncture session.  Following drainage of the site, she suffered persistent pain and discomfort and anxiety associated with multiple hospital and GP visits.  The Claimant suffered persistent pain and discomfort for 3 months but with an ongoing feeling of bodily ill health for at least 12 months.  The Claimant gradually returned to work after 3 months.  General damages for pain, suffering and loss of amenity were agreed (estimated) at £7,000 (no 10% uplift applied).  The overall award was £17,700 (which included a claim for past loss of earnings and the costs associated with various alternative therapies that the Claimant had sought to aid her recovery). 

C (A CHILD) v GREAT WESTERN HOSPITALS NHS FOUNDATION TRUST (2014)

Lawtel Reference: AM0202454
Age of Claimant: 13
Injury: burn to nostrils
PSLA: £9,160

The Claimant sustained burn injuries to both nostrils following a negligently performed bilateral tonsillectomy, adenoidectomy and submucosal diathermy to inferior turbinates.  The total injury duration was 6 months.  The Claimant suffered a full thickness burn injury to the mid point of the alar rim of her right nostril.  She was left with a “U-shaped” defect, which was 5/6 ml, by 7/8 ml.  She also sustained a partial thickness burn to the apex of her left nostril where the left alar rim met the nasal tip column.  On the day of the incident, the Claimant was transferred to a burns unit at another hospital.  She was initially treated conservatively but later (approximately 4 months later) she underwent a soft tissue reconstruction procedure under general anaesthetic (and the stitches were removed 1 week later).  The Claimant suffered embarrassment during this 4-month period.  The Claimant was left with a permanent almost imperceptible scar to the right nostril and no scar was perceptible to her left nostril.  The Claimant was not self-conscious about the scar following surgery.  Damages of £9,160 were approved for general damages (no 10% uplift applied).  £840 was permitted for past care, travel expenses and interest. 



Friday 16 May 2014

Webster-v-Liddington - Doctors' Liability for Misrepresentation


Dr Nicholas Braslavsky QC  Andrew Grantham


Dr Nicholas Braslavsky and Andrew Grantham have been successful in the Court of Appeal in the landmark decision of Webster-v-Liddington [2014] EWCA Civ 560 in which the Court of Appeal held that medical practitioners could be liable in damages for misrepresentation when the content of manufacturer’s literature provided to prospective patients prior to them undergoing treatment was materially false in the absence of an express disclaimer.
The case involved a class action brought by over 50 claimants who alleged that they had been induced to undergo a course of innovative non-surgical cosmetic treatment known as Isolagen. The treatment involved the removal of cells from the patient, cultivating them in bovine calf serum and then re-injecting them into the patient’s face.  The manufacturer’s literature claimed that the process involved the reinjection of only the patient’s own cells.  In fact, there would be small quantities of bovine material.  At first instance HHJ Platts held that the medical practitioners had adopted the content of the literature as their own representations and that the representations were materially incorrect.
On appeal two issues arose.  First, whether the medical practitioners had adopted the content of the literature as their own representations given the absence of any express warranty as to the truth of such statements; and second, whether those representations were materially false given the small quantities of bovine material that would be left in the material injected into the patients.
The Court of Appeal reconsidered the law both concerning the adoption of third party statements and the test for falsity of representations in what is clearly a landmark decision: the implications are potentially extremely serious.  Any person with access to superior information who hands over literature produced by a third party with the objective of inducing a person to contract with him may be liable for the content of that literature in the absence of an express disclaimer.  The motto is clear:  the importance of a suitably worded disclaimer cannot be overstated.”


Note that the question of damages for the claimants is yet to be decided. Nevertheless this judgment may have important ramifications not just for for doctors but for other healthcare professionals and, indeed, non-medical professionals and service providers.   





Tuesday 13 May 2014

Clinical Negligence Quantum Updates

Courtesy of Helen Mulholland







CG v NIGDIKAR (2013) AM0202405

Lawtel reference: AM 0202405
Age of Claimant: 29
Injury: Severe blood loss following tooth extraction
Total Damages: £4,000
Damages for Pain, Suffering and Loss of Amenity: £4,000


The Claimant alleged that the Defendant performed an inappropriate extraction, as her INR was unstable. 

The Claimant was said to have experienced pain, discomfort and emotional stress as she had to be hospitalized for three days whilst her bleeding was brought under control. She was rendered anaemic (albeit temporarily) and required additional trips to her GP.


XV v MAYDAY HEALTHCARE NHS TRUST (2012)

Lawtel reference: AM 0202399
Age of Claimant: 31
Injury: wrongful birth claim
Total Damages: £2,300,000
Pain, Suffering and Loss of Amenity: £35,000

The Claimant’s partner’s family had a history of spinal muscular atrophy (SMA) and that she was concerned that her unborn child might have the condition. Although the midwife made a note of this, the Claimant was not offered an appointment with a consultant or any diagnostic test.
The Claimant’s baby was born with congenital spinal muscular atrophy. 
The Claimant’s evidence was that if she had been offered the test, she would have taken it and would have undergone further screening. She asserted that, after counselling, she would have opted to have a termination.

  

BLYTH v (1) NORTHERN LINCS & GOOLE HOSPITALS NHS TRUST (2) UNITED LINCS HOSPITALS NHS TRUST (2013)

Lawtel reference: AM0202382
Age of Claimant:, 23
Injury: ectopic pregnancy.
Total Damages: £5,500
Damages for Pain, Suffering and Loss of Amenity: £5,363.75


CS v NORTH YORKSHIRE & YORK PRIMARY CARE TRUST (2013) 

Lawtel reference: AM0202384
Age of Claimant: 69
Injury: pain and suffering following negligent hip replacement
Total Damages: £75,000
Damages for Pain, Suffering and Loss of Amenity: £35,000


The Claimant was said to have experienced severe pain and discomfort for a period of twelve months prior to revision surgery including numbness in her right side and numerous fallsand to have undergone an unnecessary hip revision.

SPENCER v ONCERIU (2013)

Lawtel reference: AM0202391
Age of Claimant: 60
Injury: tongue laceration during dental procedure
Total Damages: £902
Damages for Pain, Suffering and Loss of Amenity: £750

The duration of the injury was three weeks.




EK v BIRMINGHAM WOMEN'S NHS FOUNDATION TRUST (2013)

Lawtel reference: AM0202388
Age of Claimant: 32
Injury: failure to identify and treat internal bleeding and bruising leading to physical symptoms and psychiatric injury
Total Damages: £40,000
Damages for Pain, Suffering and Loss of Amenity: £37,000

The Claimant suffered a delay in internal bleeding being diagnosed and treated. Whilst she was suffering the symptoms of the bleed, she was scared and had a genuine belief that she would die.


PENDLEBURY v F & H (2013)

Lawtel reference: AM0202383
Age of Claimant: 55
Injury: failure to diagnose and treat periodontal disease
Total Damages: £35,000
Damages for Pain, Suffering and Loss of Amenity: £16,000

The Claimant suffered bone loss of 80% in UR5 UR4 UR2 UL4 and UL5. She had to have extractions of several teeth and underwent implant replacement.


TH v NORTH YORKSHIRE & YORK PRIMARY CARE TRUST (2012)

Lawtel reference: AM0202385
Age of Claimant: 67
Injury: pain and suffering following negligent hip replacement.
Total Damages: £100,000
Damages for Pain, Suffering and Loss of Amenity: £30,000

The Claimant suffered 20 months pain and suffering and had to undergo unnecessary revision surgery.



XXX v BARNET & CHASE FARM HOSPITAL NHS TRUST (2013)

Lawtel reference: AM0202374
Age of Claimant: 10
Injury: injuries following a failure to diagnose pneumococcal meningitis
Total Damages: lump sum of £2,900,000 plus periodical payments
Damages for Pain, Suffering and Loss of Amenity: £275,000

The Claimant suffered severe spastic quadriparetic cerebral palsy, epilepsy, sensorineural deafness and significant learning difficulties. The Claimant would require care for the rest of his life.


KA v DERBYSHIRE HEALTH UNITED (2013)


Lawtel reference: AM0202368
Age of Claimant: 22
Injury: injuries arising from failure to diagnose gastric perforation
Total Damages: £80,000
Damages for Pain, Suffering and Loss of Amenity: £40,000

The delay in diagnosis led to complications, including a chest and wound infection. The Claimant also had scarring, psychological injuries, and would potentially experience fertility problems in the future.


TMR v ROYAL DEVON & EXETER NHS FOUNDATION TRUST (2013)

Lawtel reference: AM0202371
Age of Claimant: 30
Injury: failure to carry out appendicectomy as part of surgical treatment for ovarian cancer
Total Damages: £8,500
Damages for Pain, Suffering and Loss of Amenity: £7,500

The Claimant underwent a total abdominal hysterectomy and removal of the remaining ovary followed by infra-colic omentectomy and paraaortic node sampling. She had been told that she would also require an appendicectomy But this was not in fact carried out.
The Claimant had to endure a third open surgery procedure, and thereafter spent weeks recuperating from this.


JLH v COUNTY DURHAM & DARLINGTON NHS FOUNDATION TRUST (2013)

Lawtel reference: AM0202372
Age of Claimant: N/A (Fatal Claim)
Injury: Post partum haemorrhage, hypothermia, hypovolaemia
Total Damages: £565,000
Damages for Pain, Suffering and Loss of Amenity: £17,000 (est)

At the inquest, the coroner gave a narrative verdict, stating that medical management of the postpartum haemorrhage, subsequent hypothermia and possible hypovolaemia, together with a lack of medical and midwifery communication, contributed to the Deceased’s subsequent medical complications which ultimately led to her death.
Claims were brought under the Law Reform (Miscellaneous Provisions) Act 1934 and the Fatal Accidents Act 1976.


TH v THE LEEDS TEACHING HOSPITALS NHS TRUST (2013)

Lawtel reference: AM0202370
Age of Claimant: 58
Injury: pressure sore
Total Damages: £25,000
Damages for Pain, Suffering and Loss of Amenity: £23,000

The Claimant received poor post-operative care and developed a pressure sore which was said to be grade 2. It was dressed daily, but developed into a grade 3 lesion. The pressure sore gradually improved, but the Claimant was left with scarring and pain.


JN v (1) EAST CHESHIRE NHS TRUST (2) ST HELENS & KNOWSLEY TEACHING HOSPITALS NHS TRUST (2013)

Lawtel reference: AM0202373
Age of Claimant: 60
Injury: amputation of right leg
Total Damages: £1,100,000
Damages for Pain, Suffering and Loss of Amenity: £100,000


The Claimant was examined in November 2007 in the Defendant’s Emergency Department. She was seen by a senior house officer who did not note the pain in the Claimant’s legs or coldness of her feet (although the Claimant’s son later insisted that both he and C had provided such information). The Claimant claimed that there were further opportunities to identify vascular compromise that were missed.

The case settled without admission of liability.


TCM v WARDLE (2013)

Lawtel reference: AM0202376
Age of Claimant: 73
Injury: tongue laceration
Total Damages: £14,500
Damages for Pain, Suffering and Loss of Amenity: £12,000


The Claimant’s tongue was lacerated during a dental procedure. Liability was denied. The Claimant had permanent symptoms of paraesthesia and some psychological symptoms .


H v ANEURIN BEVAN LOCAL HEALTH BOARD (2013)

Lawtel reference: AM0202378
Age of Claimant: 40
Injury: delay of 11 days in diagnosing ulna fracture leading to surgical intervention
Total Damages: £1,500
Damages for Pain, Suffering and Loss of Amenity: £1,500




A v BEDFORD HOSPITAL NHS TRUST (2013)

Lawtel reference: AM0202377
Age of Claimant: 53
Injury: perforated bowel
Total Damages: £54,000
Damages for Pain, Suffering and Loss of Amenity: £35,000

AW v OXFORD UNIVERSITY HOSPITALS NHS TRUST (2012)

Lawtel reference: AM0202367
Age of Claimant: 46
Injury: severe bleeding (caused by administration of excessive heparin) which caused infection in the knee
Total Damages: £196,000
Damages for Pain, Suffering and Loss of Amenity: £40,000


The Claimant had significant knee symptoms for which she underwent a total knee replacement. Tests undertaken prior to surgery were said to confirm that she had antiphospholipid syndrome conferring a thrombotic tendency and that she needed to remain on warfarin for the rest of her life. It was stated that she needed 'good thromboprophylaxis' following a total knee replacement.



When the Claimant was admitted for her left total knee replacement, she underwent a heparin infusion and her records noted UFH 25,000 in 50ml. Following the operation, the heparin was stopped and C was noted to be feeling unwell and faint, and blood was oozing from her wound. C was subsequently transfused four units of blood and was seen by consultants. It was noted that C was feeling faint and light-headed and that there had been lots of fresh oozing from the wound overnight but there was no evidence of compartment syndrome. On investigation, it appeared highly likely that the post-operative syringe driver contained 125,000 units of UFH rather than 25,000 units and this would explain the over anticoagulation and bleeding.
The Claimant suffered pins and needles and blistering in the knee. She underwent blood transfusions. She developed an infection in the with sudden pain, redness and swelling of the left knee and was referred to hospital where she underwent a surgical washout and debridement.

The Defendant admitted breach of duty but disputed causation and the claim was settled. 



SZ v TEACHING HOSPITAL NHS TRUST (2013)

Lawtel reference: AM0202398
Age of Claimant: 27
Injury: paraplegia
Total Damages: £2,977,000 lump sum and periodical payments of £100,000 per annum rising to £154,000 after 10 years.
Damages for Pain, Suffering and Loss of Amenity: £220,000 

The Claimant underwent a pancreatic transplant aimed at managing his diabetes. Pain relief was to be managed via a spinal block, but the anaesthetist had difficulty inserting the Tuohy needle. At the third attempt, the Claimant’s spinal cord was damaged, rendering him paraplegic.

Liability was admitted.

The Claimant worked in a builders' merchants on a management trainee programme at the time of his injury. He had always worked in employment of a manual nature. C was therefore at significant disadvantage on the labour market and had failed to hold down any continuous employment at the date of settlement.


The Claimant needed to be urgently rehoused in a council property. Interim damages were thereafter sought to rehouse C in a property more appropriate to his needs.

The settlement was approved by the Court. The full breakdown is available on Lawtel.


NF (ON BEHALF OF THE ESTATE OF X DECEASED) v BLACKPOOL TEACHING HOSPITALS NHS FOUNDATION TRUST (2013)

Lawtel reference: AM0202397
Age of Claimant: N/A FAA CLAIM
Injury: pressure sores
Total Damages: £30,000
Damages for Pain, Suffering and Loss of Amenity: £10,000

The Claimant fell and fractured her left humerus whilst an inpatient. She had previously been assessed as having a high risk of falling. She developed several pressure ulcers on her body including one grade two ulcer on her sacrum. Her condition deteriorated and she died.