February 12, 2020

£15.1 million secured for woman who suffered brain damage at birth

L was born in good condition and was sent home the following day. L then had some problems with feeding overnight. At 11.30am, L was seen by a community midwife, noted that L was not keen to feed. She advised L’s mother to let her sleep and try feeding again at 1pm. L’s mother was advised to call the midwife if L had not fed by 5pm. This was completely incorrect: the midwife should either have ensured that L fed in her presence, or should have arranged for her to be taken back to the hospital without delay.

In the event, L could not be persuaded to feed, and her mother telephoned the community midwife during the course of that afternoon. Another midwife reviewed L, and she was immediately taken to hospital. By this time, her blood sugar level was zero – she was profoundly hypoglycaemic.

L was left with a permanent brain injury and required a high degree of additional care since her birth. She was in relatively good physical health, but functioned very much like a toddler, and there were huge behavioural problems. These got worse as she got older and was more difficult to manage; she had physically assaulted her carers. She could neither read nor write, and her use of language was frequently highly inappropriate. There were associated conceptual difficulties – on one occasion she said that she wanted to marry a dog and on another, a car. During her claim it was noted that she could not add one and one. L also suffered from epileptic seizures on a daily basis, often fitting five to six times a day, and had no idea when these were about to happen.

The brain injury she had sustained also affected her vision. She would never get any better, but would have near-normal life expectancy. She would never be able to manage her own affairs. Her seizures and behaviour meant that she could only live safely in adapted single storey accommodation with particular care to avoid potential hazards associated with her seizures (e.g. rounded radiators). L’s brain injury was a completed event, but – like everyone else – she would experience degenerative cerebral changes over time. She would have a considerably decreased cognitive reserve to draw upon, and would become increasingly passive and physically disabled with aging. She might come to require a hoist.

How the claim was valued

The defendant trust admitted liability for having caused L’s injuries as a result of their negligence early on in the case. Following that admission, L’s legal team issued and served proceedings at court so that judgment could be entered in her favour. They then valued the case.

Experts were required to examine requirements in:

  • care (to look at L’s past, present and future needs);
  • occupational therapy,(to comment upon specialist aids and equipment);
  • neurology (to look at L’s current condition and her prognosis, including life expectancy);
  • neuropsychology (to comment primarily upon L’s behavioural management, though also her epilepsy and life expectancy);
  • accommodation (to look at L’s accommodation needs);
  • physiotherapy (to look at L’s physiotherapy needs);
  • speech and language therapy (to look at L’s communication);
  • ophthalmology (in order to assess and ameliorate her visual field defect);
  • assistive technology (in order to assess whether any technological aids might be employed by L);
  • a professional deputy (to assess the costs of managing L’s affairs in perpetuity);
  • a financial expert (to assist with loss of earnings, loss of pension and the costs of accommodation).

Once all of the experts had reported, we held a meeting with the experts and a specialist barrister to go over the case in detail, in order to ensure that we obtained the right result.

Our instructed barrister then prepared a document known as a “schedule of loss”, the purpose of which was to set out L’s losses in full. Given the scale of the claim, this was a highly complex task.

Settlement of the claim

We then served our expert evidence and schedule of loss and the defendant’s legal representatives served theirs, and a counter-schedule.

There were significant differences between the parties, and the case was fiercely contested. Both of L’s main carers gave witness evidence of fact, as it was believed that they would be able to assist the court in determining an appropriate care package in this case. The defendant’s legal representatives argued that their evidence amounted to additional expert evidence. They even took issue with a comment by one carer to the effect that L required two carers for reasons of safety, despite the fact that this carer also described L punching her repeatedly in the face.

There were numerous disputes between the experts retained by the parties (notably those in the disciplines of care and neurology), reflecting L’s very unusual presentation. It was necessary to interrogate the defendant’s expert evidence in some detail and there were particular issues regarding the number of carers required by the claimant, her life expectancy, and the likelihood of further cognitive and physical decline. The defendant’s legal representatives then took issue with L’s team raising queries about its expert evidence.

The parties agreed to attend a settlement meeting, at which Paul and L’s barrister were present. A settlement of £15.1 million, comprising a large sum of money in addition to payments that would be made annually, was agreed. This settlement was then approved at the High Court in London.

How the money will be paid and managed

At the settlement meeting it was agreed that L would receive a lump sum of £3.85 million plus £225,000 per year for the remainder of life (this is called a periodical payment order). The annual sum is linked to inflation to ensure that it will increase in proportion to a government index each year.

The money will be managed for L by a Deputy appointed by the Court of Protection, with input from L’s parents and her case manager. The periodical payments are intended primarily to cover L’s care and case management fees.

We were delighted to reach a relatively swift settlement in this case. The compensation obtained has given L’s parents peace of mind, in that L’s needs have been provided for, for the remainder of her life. L’s parents were initially not certain about pursuing this litigation and the settlement has brought them huge relief. They had cared tirelessly for L for many years, and it was a delight to represent this family.

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