Abstract
Total award: £450,000.00
with ASHE-linked lifetime periodical payments of £175,000 per annum
Date of settlement: 10 October 2012
General damages: Estimated at £150,000
Nature of injury: Paraplegia caused by negligent delay in diagnosing septic spinal discitis.
Background
The claimant, born 1954, was rendered paraplegic at the age of 53 as a result of a negligent delay in diagnosing septic discitis at the Bristol Royal Infirmary from 30 August 2008. She suffered from a number of pre-existing and significant medical conditions which were not caused by the defendant's negligence. These included insulin-dependent diabetes which was diagnosed in 1995 which led to complications affecting her eyes (retinopathy, cataracts and glaucoma) Charcot's arthropathy and sensory neuropathy affecting her feet; diabetic nephropathy (affecting her renal function). In the late 1990s, her weight dramatically increased with a body mass index reaching 48.5. In 2002, she developed hypertension and following deterioration in her renal function in 2005, she underwent a number of procedures to form an arteriovenous fistula in preparation for haemodialysis. She also suffered from intermittent back pain, and a combination of these difficulties restricted her mobility such that she periodically needed to use a stick around the house and a wheelchair for distances. Otherwise she was able to walk for several miles with rests. In 2006, she was medically retired from her job as a classroom assistant. She managed to maintain an active social life and was independent with her personal care and in the activities of daily living.
In late June 2008, the claimant developed mid-thoracic back pain and after a number of GP consultations she was admitted to the Bristol Royal Infirmary on 30 August 2008 where she was found to be unwell and in severe back pain. Over the following days, a range of investigations were undertaken but radiographic signs of her developing spinal epidural abscess were missed. Although the diagnosis was reached on 5 September 2008, a laminectomy was not undertaken at Frenchay Hospital until 7 September 2008 by which time she had developed paraplegia.
A spinal T4-9 fusion was performed on 12 September 2008 and the claimant was transferred back to Southmead Hospital where she commenced renal dialysis. On 18 November 2008, she was transferred to the Welsh Spinal Injuries Rehabilitation Unit at Rookwood Hospital Cardiff and was discharged home on 11 June 2009 with a T2 Frankel C paraplegia.
Breach of Duty
Following an unsatisfactory response to the claimant's complaint to the trust, a letter of claim was sent on 16 February 2011. It was alleged that the defendant was negligent in failing to diagnose the claimant's spinal infection on a timely basis. Had it been diagnosed she would have undergone urgent spinal cord decompression with removal of the infected material and subsequently treatment with intravenous antibiotics.
Condition and Prognosis
As a consequence of the defendant's negligence, the claimant has suffered from complete paraplegia. This involves impaired sensation below both arm pits; loss of useful voluntary movement in the chest, abdomen and both legs resulting in her being wheelchair dependent; impairment of ventilatory capacity; pain in the form of a constant dull ache in her lower back, both hips, shoulder and neck together with some spasms; major impairment of bladder and bowel control requiring bladder catheterisation and a prolonged period to empty her bowels; impaired sexual sensation and cessation of sexual life; neurogenic pain in the feet; pain in the legs, arms and an aggravation of her muscle skeletal back pain; an adverse psychological reaction. She is no longer independent in her personal care or in the activities of daily living.
Quantum and settlement
The defendant admitted breach of duty but the extent of causation was strongly contested. This necessitated court proceedings.
During the course of the proceedings the claimant's renal function deteriorated drastically, and she suffered cardiac problems which were not caused by the defendant's negligence. She was so poorly that her treating doctor advised that she was suffering from fluctuations in her mental capacity. This caused her quantum medical experts to revise their views on life expectancy. It was this drastic reduction in life expectancy and the wish to enjoy her compensation monies while she could which influenced the claimant to settle her claim earlier than she might otherwise have done so.
The claimant rejected the defendant's Part 36 offer dated 10 February 2012 in the sum of £400,000.00 and after a series of offers and counter offers the claimant's Part 36 offer dated the July 2012 of £450,000.00 plus periodical payments of £175,000.00 per annum was accepted by the defendant subject to the claimant providing a Peter's undertaking which was embodied in a consent order 10 October 2012. The undertaking was worded as follows:
The Claimant will make no application for public funding of the Claimant's (non-medical and nursing) care made necessary by reason of the disabilities consequent upon the injuries sustained by the Claimant which are the subject of this action after the date of payment of £183,568.25 in accordance with paragraph 1 (a) of the Order pursuant to section 47 of the National Health Service and Community Care Act 1990 or section 21 of the National Assistance Act 1948 (or such comparable legislation as may hereinafter be enacted) without further Order, direction or authority from this Court; and if any application is made to release the Claimant from this undertaking the Defendant and the NHSLA (or its successor) shall be notified of any such application for release and shall be given the opportunity of making representations.
