CASE REPORT
Negligent failure to diagnose a blocked shunt
Brain damage and blindness
Local authority's legal obligation to provide care
Christopher C** was born in 1988 and so was about 2 years 9 months old at the date of the hospital's negligence in May and June 1991. He is now 14. His claim came for trial on quantum only in March 2003.
The Claimant was a full-term, normal delivery, but a week after his birth he
developed the sudden onset of epileptic fits. He was admitted to hospital, where
investigations revealed that he had suffered an intra-ventricular haemorrhage,
resulting in hydrocephalus (an abnormal increase in the amount of cerebro-spinal
fluid in the ventricles of the brain). This was treated by the insertion of
a ventriculo-peritoneal shunt, following which he made good progress, and was
discharged home in October 1988. However, during the next two years he was noted
to be of small stature, and he failed to thrive. It is agreed that, by the time
of the Defendants' negligence in May and June 1991, the Claimant was showing
a degree of developmental delay which would place him within the range that
would indicate a moderate degree of learning disability; he was tested
five times between birth and the negligence, and it is agreed that he was not
showing evidence of severe impairment. He was not blind, nor did he have
any significant visual impairment.
Christopher's shunt became blocked, and the Defendants negligently failed to diagnose the blockage for 27 days. It was agreed that, during that time, the intracranial pressure was either rising or high, and one of the issues was whether that pressure within the skull was likely to have caused damage to the brain.
It was agreed that Christopher's learning difficulties are now severe and complex, which is significantly worse than pre-negligence testing suggested he would attain. There was a major issue as to the predictive value of such developmental testing, discussed below.
The Claimant is now blind, undoubtedly caused by the negligence; he has a mild lower limb spasticity, more marked on the left than the right; and he has epilepsy, controlled by medication. Blindness has a major effect on a child's development, and it was agreed by all experts that Christopher is significantly worse than he would have been had the negligence not occurred, although it was apparently suggested by the defence experts that Christopher's needs are no more extensive than they would have been had the negligence not occurred.
The major issue in the case was how Christopher would have developed had the Defendants not been negligent.
It was our contention that the negligence certainly caused the blindness, and that blindness must have had, and will continue to have, a major effect on Christopher's development. It was our secondary submission that this was a prolonged period of high or rising intracranial pressure, which was either possibly or probably going to cause brain damage. We submitted that it probably caused diffuse damage.
The neurologists agreed that acquired visual loss will greatly exacerbate
learning difficulties in a child who already had evidence of developmental delay
(my emphasis). They agreed, in their joint statement, that the Claimant would
have had a degree of independent living skills, but would have required 24 hour
adult supervision. Our expert let us down badly on this issue. It was apparently
always her opinion that the Claimant would have managed either in the community
with significant help, or in a Home Farm Trust/Scope type home, whereas now
he will need a Vision Homes type home, but this did not appear to be what was
agreed with the other expert.
The neurologists also agreed that 60% to 70% of Christopher's total impairment was caused by the neonatal injury, 30% is accounted for by the loss of vision, and less than 10% represents additional damage to the brain in 1991. We could only accept that assessment if the effect of it was that Christopher's needs have been changed so significantly that he now requires a different type of management.
The defence expert was very much against the suggestion that a month of raised intracranial pressure had caused brain damage, although he acknowledged that it was a possibility; our expert believed that some extra brain damage was caused.
They agreed that blindness would have the effect of exacerbating the effects
of Christopher's pre-existing learning difficulties, and that blindness will
increase the level of care and supervision which Christopher will require, both
as a child and as an adult.
The Claimant's expert considered that the prolonged period of raised intracranial pressure would have caused diffuse organic brain damage, whereas the defence expert felt that it caused no organic brain damage.
The defence radiologist appeared to identify damage caused by the failure to
relieve the pressure in 1991.
They disagreed fundamentally about Christopher's development had the negligence
not occurred; our expert considered that, without the influence of blindness,
the Claimant would have been capable of semi-independence and the possibility
of employment, whereas the defence expert thought that the difficulties would
have fallen within the severe range, and that therefore he would have required
a supported living environment as an adult, and would not have been employable.
There was no doubt that the pre-negligence testing showed that Christopher was
only moderately disabled, and the defence position had to be that those results
were misleading. We had some independent authority to suggest the contrary.
There was therefore an issue whether developmental testing of young children has predictive value, generally and in the instant case; coupled with that general issue was the question whether the predictive value of such tests is greater in the case of children who are developmentally disabled at the time of testing. The neurologists had agreed that although developmental assessment tools at this age will identify children who are functioning outside the normal range, their predictive validity for later function is poor, particularly in children who have already demonstrable brain injury. We did not accept that conclusion. We submitted that it may be outwith the area of expertise of those experts; and that it is contrary to our psychologist's opinion, supported by independent authority.
They agree that the negligence caused the blindness.
The Claimant's expert described the sudden, total loss of vision as an absolutely unmitigated disaster, not only in developmental terms, but also because of the considerable extra care which Christopher will now need for the rest of his life.
Christopher developed scoliosis, but the negligence did not cause the scoliosis.
There was an issue whether Christopher suffers from microcephaly (abnormal smallness
of the head in relation to the size of the rest of the body). This was apparently
agreed by the neurologists (the Claimant's neurologist appeared to agree, but
then pointed out that head circumference was more in line with body growth when
Christopher was young, and that his current head size may not be very inappropriate
for his height and weight), but not by the Claimant's neurosurgeon. According
to the defence neurosurgeon, the implication of poor head growth is that the
brain was growing inadequately, and poor physical growth of the brain in the
first two years of life is a marker of future disabilities of cerebral origin.
It is the fact that Christopher achieved his moderate assessments despite his
small head, and there was an issue whether the head size is a family trait
Life expectancy was a separate issue. The Claimant's neurologist asserted that
Christopher was likely to live to beyond the age of 60, whereas the defence
expert considered that Christopher would live to about the age of 55 to 60.
Professor Strauss, an American statistician instructed by the Defendants, gave
an opinion based on various reports, and concluded that Christopher probably
will live to the age of 57.4. He took account in his calculations of various
matters, some of which seemed to be inappropriate. We had detailed criticism
of his statistical methods, but in the event the defendants agreed two days
before trial that life expectancy would be to age 60.
The claim was for the cost of adaptations rendered necessary by the blindness,
and for increased running costs.
Our submissions on pre-negligence care were as follows:
1 At best, Christopher would have developed so that he could live with his parents, or in his own small home nearby, with family or outside help on either a daily or weekly basis.
2 At worst, he could not have managed in his own home, but could have lived with his parents, until they were of an age at which they were no longer able to look after him. At that stage, or earlier if that had suited the family, he would have been suitable for a Home Farm Trust/Scope/Care Establishments type of residential home.
They agreed that Vision Homes would be appropriate, costing about £70,000, compared to the costs of Scope, Care Establishments or Home Farm Trust (average £31,200).
The experts deal with state funding in their joint statement, but there was no adequate evidence to show that such funding would be available, or that the Claimant's parents would choose to pursue public funding rather than making their own choices and decisions. This is a very current topic at the moment, and defendants usually quote three cases (Firth, Bell and Ryan) in support of the argument that, because the local authority is legally obliged to provide appropriate accommodation and care for a disabled person, therefore a claimant cannot recover the cost of private care. In my opinion, those cases do not support that proposition; their reasoning is that, if a person is receiving care from a local authority, the authority cannot recover the cost of that care from damages held on behalf of the patient in the Court of Protection.
This is a controversial area, both as to the law and in relation to the facts.
It is a claim which is being made more frequently nowadays, and I think it will
become accepted eventually. At the moment there is considerable judicial resistance
to the concept (although there is a decision in support noted in Kemp). It was
particularly interesting that the defence accountant had set out a table which
showed that, using the Court of Protection panel structure, there was a shortfall
of over £100,000, when compared both with our accountant's figures, and with
the defence accountant's figures based on the private client rates taken from
the Court of Protection panel brokers.
Agreed.
Various offers were made (including one which had the threat attached that,
if it was not accepted, significantly less would be paid into court). One offer
was for £500,000, with an "indemnity" against future care costs. Two days before
trial (listed for eight days), the offer was increased to £850,000 (without
an indemnity, which seemed to me to be worthless), and that was increased to
£900,000 on the afternoon of the day before trial.
The judge approved settlement in that sum. Although he did not approve any specific figures, the following give some idea of how we assessed the major elements of the claim.
Pain, suffering and loss of amenity £175,000
Parents' past and future care £50,000
Future residential care £700,000
Accommodation £40,000
Court of Protection and receiver £50,000
19 March 2003
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