Abstract
Tragically, amputations often arise as a result of clinical negligence. This article describes the heads of claim that are likely to be awarded in cases where a Claimant has suffered the amputation of a leg.
Clinical negligence?
Perhaps surprisingly, amputations following hospital admissions are increasing. By contrast, the level of limb amputations caused by non-vascular causes, such as road accidents or industrial injuries, has remained reasonably constant.
The reason for the increase in hospital-related amputations is two-fold:
The number of lower-limb amputations from vascular causes is increasing, due to increases in artherosclerosis and diabetes, and the consequences of an ageing population (the highest prevalence of leg/foot tissue loss is in the most elderly: the number of leg amputations among 65+-year-old patients has doubled since 1997). This is despite major developments in healing of leg/foot tissue loss, development of modern wound care, dressing materials and technological innovations in high-compression bandaging; Hospital-acquired infection, leading to osteomyelitis can also cause amputations.
The link between diabetes and obesity is likely to lead to a continued increase in amputations.
If there is such a thing as a typical clinical negligence claim causing a lower-limb amputation, the allegations arise from the failure of the hospital to recognize signs and symptoms of vascular compromise/infection, and failing to take appropriate steps (whether it be surgery for a vascular cause or antibiotic regimes).
The issues on liability and causation often relate to the limited opportunity to put in place effective treatment, and whether all reasonable doctors would have acted within what can be a very short window of opportunity to avoid the amputation.
Woodall's remark on limb amputation, in 1617, that ‘it is no small presumption to dismember the image of God’ reflects the then view that elective amputations should be shunned completely. More recently, the clear philosophical perception is that it is better to live with three limbs than die with four.
This article assumes that the Claimant would have saved the leg, and made a full recovery, with no impairment to ability to work, or handicap in social or domestic life. Given that one of the typical clinical situations is vascular compromise or age-related conditions, one should always be careful to identify the extent of any unavoidable disability, and to ensure that the quantum reports reflect this.
Finally, in considering the relationship between clinical negligence and amputations, I am reminded that the law code of Hammurabi (around 1750 BC) stipulated that when operations ended fatally, the hands of the surgeon responsible would be cut off as a punishment. Perhaps a useful amendment to the Fatal Accidents Act?
Overview of damages
The typical heads of claim will be familiar to most reading this article:
general damages for pain and suffering and loss of amenity; loss of earnings; care and outside contractors; prosthesis; accommodation; aids and appliances; miscellaneous additional expenses.
Each of these is dealt with below.
Pain and suffering
Condition and prognosis reports are usually required from an orthopaedic surgeon, a rehabilitation consultant and a psychiatrist. Vascular cases will already have a report from a vascular surgeon (probably dealing with causation).
The brackets given by the Judicial Studies Board Guidelines (9th edition) are shown in Table 1.
Brackets given by the Judicial Studies Board Guidelines (9th edition)
The reported cases reflect that these bands are reasonable. Although the bands do not dwell on psychiatric problems, phantom stump pains, falling and other hazards amputees face, the reported cases indicate that some allowance is made for these common problems.
In the event that the psychiatric evidence indicates a particularly severe reaction, an uplift on these bands would seem appropriate. Similarly, where the patient suffers multiple amputations (of the same limb, but involving a number of operations on different dates), the award might be slightly higher.
Loss of earnings
The Introduction to the current Ogden Tables has accepted the research led by Victoria Wass at Cardiff Business School and Professors Verrall and Haberman and Zoltan Butt at City University into the impact of disability on the labour market.
The factors that have to be considered are:
Whether the person is disabled: this is defined by reference to the Disability Discrimination Act, which establishes that a person must have an impairment that is physical or mental, which has substantial adverse effects on normal day-to-day living. Various examples are given including mobility (likely to be the most relevant factor for a Claimant with an amputation). This is highly likely to be satisfied; The disability must affect either the kind of work or the amount of paid work the injured person can do. Again, this is highly likely to be satisfied; Educational achievements are very important, and subdivided into ‘D’, ‘GE-A’ or ‘O’. These categories are defined with considerable detail, and include a number of qualifications. In broad terms, the classifications correlate to degree-level education, A levels or low GCSEs; There is a surprising difference in future loss of earnings contingent upon whether the person is in work at the time of the assessment or unemployed.
It is difficult to imagine circumstances in which it is not accepted that a person with an amputation has suffered a disability which affects the type of work they can do. Even where the Claimant has continued to work (and one of the features of acting for people with amputations is that there is a considerable stoicism and determination to get back to work, and to lead as full a life as possible), to lose a leg must represent a disability.
The DDA deems some people to be disabled: those with cancer, HIV infection, MS or blindness. All other people, including amputees have to meet the DDA requirements. It would be odd for this to be challenged.
The Tables then provide a discount factor by reference to the factors above.
Two examples are shown below.
The 25-year-old man
A 25-year-old man with GE-A qualifications has an uninjured normal working life multiplier to 65 of 24.78 (see Table 9 of the Ogden Tables), which is reduced to 22.8 to allow for contingencies (applying Table A in the Introduction).
It is worth arguing that it is now accepted that most people will have to work beyond the age of 65 years, to 68 years with a small increase in the ordinary working life multiplier.
With an amputation, Table B of the Introduction indicates that the normal working life multiplier falls to 13.38 if working at the time of assessment or 10.16 if unemployed at the time of assessment.
In other words, the person with a disability will work for between 40% and 54% of his normal working life.
Assuming a net income of £20,000, the future loss of earnings claim is £188,400 if working at the time of assessment, or £292,400 if unemployed.
The 40-year-old woman
The ordinary working life (to the age of 60 years) is 15.54 (see Table 8 of the Ogden Tables). This is reduced to 13.36 when Table C is applied to allow for normal contingencies (assuming a GE-A educational qualification).
If the woman is employed at the time of assessment, the residual earning capacity is just 51%, giving a future earnings multiplier of 7.92. If unemployed at the time of the assessment, this falls to just 3.57.
Assuming the same £20,000 net income, the loss of future earnings is between £108,800 and £239,400.
The notes and the case law indicate that these Tables can be adjusted to allow for individual circumstances, but my own experience is that Counter Schedules are using the Ogden Tables without significant adjustments.
To see an example of how far the courts will adjust the figures in the Tables, it is of interest to read Conner v Bradman & Company Ltd [2007] EWHC 2789, per HHJ Peter Coulson QC, and the approach at first instance in Peters v East Midlands SHA [2008] EWHC 778, per Butterfield J (a decision more widely known for the consideration given to the relationship between state-funded provision and private law claims).
Nursing care/outside contractors
Most amputees need help, whether it be with nursing (applying creams and helping with dressing, washing, cooking, etc.) or have a need for contractors (decorator, gardener, handyman and window cleaner) as well as occasional family help and a cleaner.
It is normal to instruct an expert in care to assess the level of care required. Where the help has been provided by family members, a discount of 25% on the commercial rates used by the care experts is normal. The conventional justification for this discount is to reflect the fact that the care has been provided gratuitously, but the care is compensated by reference to gross hourly rates, with no deduction for tax and national insurance. A 26% discount is a rough-and-ready method of providing such a discount.
Prosthetics
Unfortunately, NHS provision of prosthetics seems to be poor throughout the country.
I have seen just one report from a prosthetic expert which considered the NHS provision provided to be reasonably adequate. Far more typically, the prosthetic expert will recommend that the commercial market offers a much better range of more modern prostheses, which will allow the Claimant a much greater freedom and movement, and much more satisfactory renewals and maintenance.
Most experts recommend between two and three prostheses, with one as a spare and one activity prosthesis.
The specification and replacement intervals are often agreed. Many experts typically instructed by the NHS Trusts will agree two prostheses, with replacement intervals of between 3 and 5 years.
In the way that personal injury litigation can throw up ritualistic dances, the NHSLA often instruct an expert (who I shall not name) who challenges whether the activity prosthesis will actually be used. This can often be met with a firm witness statement expressing a desire to take exercise and swim, and to accompany children to the beach.
The cost of private prosthetic provision is high. It is not unusual to see claims for prosthetics exceed £200,000 (although this is obviously subject to the lifetime multiplier). With capital costs of £7000 not atypical and annual maintenance contracts, the claim is significant and requires expert evidence.
Accommodation
Most houses or flats in Britain are unsuitable for amputees. Smaller houses often have no downstairs lavatory. Even with modern prostheses, there may be occasional wheelchair dependence, requiring wider doors, adaptations to the kitchen and bathroom and, because internal and external stairs are difficult, the provision of ramps, lifts, et cetera.
The need for new and more suitable accommodation requires the support of experts (in particular, the combination of the care and OT expert(s) and architect specializing in assessing accommodation for the disabled who can assess the costs of finding suitable accommodation and the costs of adaptation, and increased annual running costs into the future).
Often the problem with an accommodation claim is the consequence of the Roberts v Johnstone calculation, whereby the Claimant is compensated for the loss of the use of the capital by taking 2.5% of the increased capital cost of the new property, and applying the normal life lifetime multiplier.
To take an example, for a woman aged 40 years, the multiplier is 27.09, with the result that she will only recover 67% of the capital cost. In south-east England, house prices are so ludicrous that the shortfall may eliminate the claim for pain and suffering and past care, and may eat into future care and other heads.
The situation is even more parlous for those with a much shorter life expectancy. The elderly patient with an undiagnosed vascular problem may recover about one-third of the increased cost of buying new accommodation.
A solution is difficult to find. NHS trusts will not buy property. Renting may not allow the adaptations required. Some Claimants have proposed a trust mechanism whereby the property is held with a life interest for the injured Claimant, with the proceeds of sale going to the funding party.
Aids and appliances
An occupational therapist should be used to assess the need for aids and appliances. Typical recommendations include both manual and electric wheelchairs (including insurance and an allowance for maintenance), recliner chairs, kitchen and household equipment, and door phones.
A larger car may be required, to facilitate wheelchair access and movement, with an allowance for car washing and emergency services membership.
Therapies
Some experts recommend a need for physiotherapy, an annual assessment by an occupational therapist and, in unusual cases, anger management.
Miscellaneous
It is likely that there will be extra heating costs, and extra holiday costs attributable to the amputation, as well as an annual allowance for additional travel costs.
Summary
There are many variables in considering the value of a claim for an amputation, including age, earning capacity, underlying health, the extent of unavoidable disability, motivation and desire to be dependent.
Claims are often worth in excess of £1 million. Even for the elderly person with no claim for loss of earnings, one can expect the claim to exceed £400,000.
What is clear is that, to get into this range of awards, a large number of quantum experts will be required, with suitable review of the recommendations to avoid duplication and to ensure reasonableness.
The costs of investigation are high, particularly where the panoply of experts is matched by equivalent experts instructed by the NHS.