Lord Justice Jackson in his ‘Review of Civil Litigation Costs: Final Report’ concluded that there are two objectives which have to be borne in mind in relation to clinical negligence litigation. First, patients who have been injured as a result of clinical negligence must have access to justice, so that they can receive proper compensation. Secondly, this huge area of public expenditure must be kept under proper control, so that the resources of the health service are not being squandered unnecessarily on litigation costs.

Solicitor, David Froome takes a look at the concept of court budgeting which will commence following recommendations raised by LJ Jackson in his recent all-encompassing costs review - Read more.

Claimant aged 50 years, who had previously undergone aortic and mitral valve replacement, was admitted to Defendant Trust on 16.04.05 with acute coronary syndrome. In course of treatment an IV cannula was inserted into Claimant’s right elbow. He was discharged on 19.04.05 with oral antibiotics for cannula site phlebitis.

Claimant was readmitted to the Defendant Trust nine days later with suspected infective endocarditis. Treatment with IV antibiotics failed to prevent damage to mitral valve requiring repeat double valve replacement surgery on 08.06.05 due to cardiac failure. Claimant suffered severe heart failure affecting function and longevity.

Trust admitted breach of duty in failing to manage the Claimant’s phlebitis appropriately between 16.04.05 and 19.04.05 and administer intravenous antibiotics earlier which caused or materially contributed to the Claimant’s endocarditis and the need for surgery on 08.06.05.

Claimant’s cardiology expert said prior to suffering endocarditis in April 2005 and despite double valve replacement the Claimant was asymptomatic and led a normal, active life, working full-time. Since endocarditis and cardiac surgery in June 2005 Claimant suffered severe heart failure causing major limitations and severely restricting his quality of life and preventing his return to work. His condition would gradually deteriorate and there was a 50% chance he would not live more than a further 4 to 5 years without undergoing cardiac transplantation, for which he was unlikely to be a suitable candidate for. Claimant served Schedule of Loss totalling £347,597.96 excluding general damages.

Out of court settlement: £325,000 (inclusive of General Damages). Kennedys represented the Defendant Trust.

Claimant developed eye infection shortly after birth for which Trust prescribed antibiotic eye drops. Two months later Trust doctor advised stopping the drops. Doctor subsequently reviewed swab results suggesting profuse infection but failed to advise continuance of the medication.

Two weeks later Claimant transferred to another hospital to undergo surgery unconnected to the eyes. He was unconscious during the operation and heavily sedated for three to four days. As he was not blinking during this period, that his risk of eye infection increased but Trust failed to advise vigilance in this regard.

Claimant alleged due to Trust’s failure to adequately treat his eye infection or warn the other hospital to be vigilant in this regard, he had been rendered almost blind. He could read large print only, was unable to drive and was accordingly significantly disadvantaged on the labour market. He suffered accidents due to poor eyesight and was subject to bullying at school. He would require support to find work and live independently and his condition was likely to deteriorate when he reached his 60s.

Liability settled at 80% with damages of £950,000 agreed and approved by the Court (estimated General Damages £135,000).

Claimant suffered prolonged partial intrapartum hypoxia and perinatal stroke resulting in hemiplegic brain injury. She suffered symptoms of epilepsy, visual impairment, learning difficulties and behavioural problems.

Trust admitted that CTG from 1445 hours was non-reassuring and a fetal blood sample should have been taken at 1530 hours. Trust argued however this would have been reassuring, as was the sample eventually taken at 1819 hours. Claimant was subsequently delivered at 1910 hours. Trust further submitted that if earlier delivery had prevented hypoxic injury the subsequent stroke would not have been avoided and this was responsible for the majority of the Claimant’s symptoms.

Claimant alleged the fetal blood sample obtained must have been contaminated and appropriate serial blood sampling would have revealed increasing acidosis which in combination with CTG results should have led to a decision for delivery by 1624 hours, nearly three hours earlier than occurred. Claimant submitted the partial hypoxia caused or contributed to the subsequent stroke, or the effect of the same was indivisible from the subsequent event, and therefore causation should be found in totality.

Out of court settlement: £2 million lump sum which represented half the value of the claim had the Claimant established that the Defendant was responsible for the totality of the brain damage (General Damages £225,000 on full liability basis).

Claimant attended Defendant GP with lump in right breast. Following examination, GP advised that lump unlikely to be cancerous, however due to family history he would refer her to a breast clinic. Defendant GP did not make the referral requiring the Claimant to be seen within two weeks as per GP guidelines. Eight months later Claimant consulted another GP within the same surgery who referred her to a breast clinic where she was seen within two days and diagnosed with breast cancer. She subsequently underwent mastectomy.

Claimant suffered pain in her right side for eight months as well as anxiety that she did actually have breast cancer which had not been diagnosed. Expert evidence indicated that the delay had no impact upon prognosis or treatment.

Out of court settlement: £5,460 (General Damages £5,000).

Claimant attended Trust A&E with back pain following a 25 foot fall from a climbing wall. X-rays taken but T11 fracture missed and Claimant discharged. Fracture was identified at subsequent review of X-ray and Claimant returned to hospital where a plan for conservative management was formulated.
Claimant alleged that the negligent delay in diagnosis caused him two weeks of additional pain and suffering.

Breach of duty admitted. Out of court settlement: £3,500 (General Damages).

Claimant was referred to gynaecologist at the Defendant hospital with complaints of heavy periods, hot flushes and irritability. She was 51 years old and obese but nonetheless was offered hysterectomy and bilateral oophorectomy. She suffered severe complications following the surgery after developing necrotising fasciitis.

She suffered repeated infections and required numerous corrective surgical procedures to include skin graft, bowel resection and stoma surgery. She was left with severe scarring to the abdomen and left thigh and would continue to suffer recurrent infections. Her mobility was affected and she became wheelchair dependent.

Claimant developed chronic depressive disorder of moderate severity. Her life expectancy was expected to be reduced by 10-15 years.

Liability admitted. Out of court settlement: £270,000 (General Damages £75,000).

The Department of Health has published a consultation paper seeking views on proposed changes to the charging regulations to include treatment of personal injury compensation. Currently, the regulations only allow local authorities to take into account the care element of personal injury awards until such time as it is placed into a disregarded source such as a personal injury trust or annuity. Ministers seek views regarding amendments which will enable local authorities to take account of the care element of any personal injury compensation award in all circumstances. The consultation period closes on 23rd April 2010. View full details.

The Ministry of Justice has detailed changes to the Coroners’ system and death certification arrangements under the Coroners and Justice Act 2009, including plans to appoint the first ever Chief Coroner in spring. The Chief Coroner will help develop better Coroner investigations and inquests, with higher more consistent standards of service. The new system is expected to go live in April 2012.

Ministry of Justice 2nd February 2010

The Department of Health has announced that GPs providing out of hours care will be subject to more robust skills and knowledge testing, with a requirement for fluency in English. An official review was carried out after a patient was given a fatal overdose by an under-qualified locum. The review proposes that GPs applying for out of hours work be put on a national database that will highlight all alerts over competence.

Department of Health 4th February 2010

Health professionals warn that generic medicines automatically substituted for more expensive brands could confuse patients, worsen disease management and increase the chance of hospital admission. The Department of Health hopes to save £37 million a year from the automatic use of generics. A consultation on automatic substitution (AGS) is due to close at the end of March.

Times 24th February 2010

A Chinese herbalist was given a two-year conditional discharge after admitting to selling dangerous pills, containing a banned substance, to a woman who subsequently developed kidney failure and cancer. The Judge ruled that as sale of traditional Chinese medicines was unregulated, there was no evidence that the herbalist knew of the potential harm caused by the tablets. Registration with an appropriate professional body would mean retailers would be alerted to regulations. The Department of Health is currently considering recommendations for such regulation.

Times 18th February 2010

Hinchingbrooke Hospital is set to become the first NHS general hospital to be operated by a private company after the only wholly NHS bidder for the contract dropped out. Health service unions have called on the government to suspend the tendering process.

Guardian 19th February 2010