Abstract
Background
The Claimant was born on 13 July 1996. During his first year, the Claimant failed to reach developmental milestones and additionally failed a distraction test conducted by a health visitor. As a result, the Claimant was seen by a community paediatrician on 22 July 1997. An audiogram was performed which purported to reveal bi-lateral hearing at 40 dB and the paediatrician arranged to see the Claimant again in six months.
On review on 11 August 1998, it was noted that there were behavioural problems; there was no speech and concern was raised about the Claimant’s poor responses. An audiogram was performed which purported to reveal bi-lateral hearing at 40 dB.
The Claimant was seen by the paediatrician on a further three occasions throughout 1998 and early 1999. The Claimant was seen by the second defendant’s associate ENT specialist following a referral by the first defendant’s paediatrician. The subsequent examination purported to reveal normal tympanic membranes and the tympanogram was reported to be within normal limits. No audiogram was performed.
Following further referrals upon the defendant’s speech therapist, audiologist and paediatrician, it was considered that the Claimant suffered severe language delay, a fine motor delay and probable learning difficulty. The first defendant’s paediatrician recorded that there were no concerns about the Claimant’s hearing and autism was raised as a possible diagnosis.
Further testing was carried out on 6 October 1999 by the second defendant’s associate ENT specialist and again it was noted that the tympanogram was recorded within normal limits. No audiogram was performed.
On 29 February 2000, the Claimant was seen by the first defendant’s community audiologist. It was noted that she had obtained some minimum hearing thresholds on testing but not at every frequency and that admittance audiometry had been normal. It was subsequently confirmed on 10 July 2000 that the Claimant did not show any features of autistic spectrum disorder.
On 3 November 2000, the Claimant underwent a further hearing assessment at the second defendant’s audiology clinic. The assessment showed hearing levels at above 90 dB only (grossly abnormal).
The Claimant was subsequently referred to a professor of ENT at a different trust. The Claimant attended on 11 April 2001 and a pure tone audiogram confirmed a bi-lateral profound sensorineural hearing impairment, with responses at 95 dB on the right and at 90 dB on the left.
Injuries sustained by the Claimant
The Claimant suffered behavioural problems and difficulties in communication and learning as a consequence of which his language skills, literacy, communication skills and emotional and social development were impaired.
Allegations of negligence
It was alleged that the first defendant failed to identify the correct level of hearing loss, failed to consider that the level of hearing loss elicited was abnormal and failed to have any or proper care in the management of the Claimant, given the concerns that were raised as to hearing loss.
Similarly, it was alleged that the second defendant failed to recognise that the levels of hearing loss identified were abnormal, failed to perform an audiogram on a number of occasions and also failed on a number of occasions to consider the possibility of sensorineural hearing loss.
The normal hearing range in children may be regarded to be in the range 0–15 dB. It was the Claimant's case that his hearing could not possibly have deterioriated from 40 dB to 95 dB (right) and 90 dB (left) in the relatively short period from July 1997 to April 2001. The earlier hearing loss results could not possibly have been accurately interpreted or recorded notwithstanding the difficulties in eliciting hearing loss levels in very young children. In any event it is negligent to suggest a loss of 40 dB as within normal limits.
In the absence of a pre-action admission, court proceedings were issued. Limited admissions were made in the defence upon which judgement was entered with damages to be assessed. At a round table meeting in August 2007, further concessions were made by the defendants who conceded that but for their breaches of duty, the Claimant would have received hearing aids by the middle of November 1997. The defendants conceded that the admitted breaches made a material contribution to the Claimant’s disability.
The assessment of damages was postponed so that the impact of the defendants negligence could be established as the Claimant matured and to allow the impact of cochlear implant surgery to be assessed.
Settlement
At an Approval Hearing on 1 August 2012, the Court approved terms of settlement agreed between the Parties for a lump sum payment of £550,000.00.
