Abstract
Background to the claim
In November/December 2004, the Claimant (then aged 36 years) underwent a course of private treatment from a consultant psychiatrist who it is alleged prescribed inappropriate and excessive dosages of Lamotrigine as a mood stabilizer. The drug regime caused the Claimant to suffer a serious reaction known as Stevens-Johnson syndrome, a life-threatening condition affecting the skin and mucous membranes.
In the short term, the Claimant suffered multi-organ failure from which she almost died and required intensive care and prolonged treatment. She suffered severe blisters and erosions on her limbs, face, mouth and genital areas, and suffered hair loss which took 2–3 years to grow back.
In the long term, the Claimant suffered permanent damage to her mucous membranes including to the ocular surfaces of both eyes causing recurrent conjunctivitis, ingrowing eyelashes and conjunctival scarring. She has no normal tear production and has to use artificial tears every 20 minutes during the daytime and every few hours during the night. Her ingrowing eyelashes require repeated epilation procedures. She had scarring at the site of insertion of intravenous catheters on her arms and legs and around the genitalia, reduced sensation in the skin covering her breasts and nipples, and brittle fingernails and toenails
The Claimant also developed fibromyalgia, causing muscular pain and fatigue, with a prognosis of recovery within around seven years from January 2005, with a 25% chance of symptoms at 14 years, 12% at 21 years and 6% chance at 28 years post-onset of fibromyalgic symptoms. There was also evidence that the Claimant (who had a history of episodic depressive episodes with one episode of hypomania, at the time of the index event) had suffered a post-traumatic stress disorder (PTSD) and an exacerbation and delay in the resolution of symptoms of depression and some ongoing sexual dysfunction, due to a combination of labial scarring and psychological factors.
The Claimant was at risk of permanent corneal scarring and associated visual loss. The risk of some visual loss was estimated to be in the region of 10–20% over her lifetime, with a risk of total loss of vision in one or both eyes in the region of 1–2%.
At the time of her injury, the Claimant was employed as a hospital consultant (and she continues so to be employed). She was unable to return to her post for a period of six months and when she did return in June 2005 it was on a part-time basis and the Claimant gradually increased her sessions. However, she was unable to resume her pre-injury hours of work and a new contract was negotiated under the terms of a Disability Discrimination Act (DDA). There was, therefore, a claim for partial ongoing loss of earnings and pension loss.
Additionally, it was claimed that the Claimant was significantly handicapped on the labour market. The Claimant was concerned that there was no certainty that she would be able to continue working in the same capacity even under the agreed DDA contract and was concerned that if she was made redundant or attempted to move posts she would be competing with non-disabled consultants for consultant posts in the vicinity.
Legal issues in the claim
Following the issue of proceedings breach of duty was admitted. Issues of causation and quantum remained in dispute. The Claimant was permitted to obtain expert evidence in the fields of ophthalmology, rheumatology, psychiatry, dermatology and gynaecology.
The claim for damages included a claim for past care and assistance and future household tasks, ironing and cleaning assistance, her ability to undertake these tasks being reduced by the effects of the fibromyalgia. There was also a claim for replacement gardening services, as the Claimant avoided this activity due to the risk of contamination causing eye infection. There was a claim for past and future therapies, including additional ophthalmology expenses, additional dental expenses, medical massage and acupuncture. The Claimant also claimed for the lifetime cost of acrylic nails, which she had applied to cover her brittle and unsightly fingernails.
There was a substantial dispute between the parties as to the level of appropriate adjustment to the multiplier applying the approach to future loss of earnings under the sixth edition of the Ogden Tables. The Defendant (relying upon the approaches in Conner v Bradman & Co Limited [2007] EWHC 2789 and Hunter v MOD [2007] NIQB 43) argued for a 50% adjustment to the discount to reflect pre-injury factors such as the Claimant's psychiatric history, history of asthma and family commitments and factors relating to her injury, adopting arguments such as that the disability itself was not serious and that the prognosis was for some improvement in her condition in relation to the fibromyalgia.
In relation to the future risk of deterioration in the Claimant's eyesight, it was argued that the risk of loss of vision, while small, could have a very significant impact upon the Claimant's lifestyle and earning capacity and could not realistically be valued as part of general damages. Any once-and-for-all lump sum award that might have been agreed would have looked totally inadequate if it turned out in time to come that the deterioration did in fact occur. The Claimant, therefore, held out for a provisional damages award and settlement was reached on the basis that the prospect of a loss of vision at some indefinite point in the future was a clear and severable event. Existing case law suggested that for the purposes of establishing the risk of a future ‘serious deterioration’ there had to be the risk of a clear and severable event as opposed to an ordinary or continuing deterioration (an event which can be disentangled from any other medical condition and specified in plain language in the order). The Claimant, therefore, held out for a provisional damages award and settlement was reached on the basis that prospect of a loss of vision at some point in the future was a clear and severable event.
At a round-table settlement meeting on 16 July 2009, proposals for a once-and-for-all payment (without a provisional damages award) were rejected. The Claimant settled the claim for provisional damages of £450,000 of which Counsel estimated that around £60,000 represented general damages for pain, suffering and loss of amenity. The claim for future loss of earnings/handicap on the labour market was compromised somewhere between the position of the two parties and represented the bulk of the claim for special damages. The settlement as such was reached just before trial.
The wording of the Consent Order in relation to future damages included provision that if at a future date the Claimant ‘suffers a loss of vision (including for the avoidance of doubt any loss of visual field and/or loss of central vision) directly referable to the Defendant's negligence which materially affects her daily functioning and/or work over and above that which she currently suffers and for which she has already been compensated’ then she should be entitled to apply to the Court for further damages.
The wording of the award for provisional damages reflected the desirability of protecting the Claimant should the onset of loss of vision occur after her retirement when she was no longer working. In other words, quite apart from the economic impact if loss of vision occurred while she was still working, the likelihood of a costs of care claim if loss of vision occurred after retirement had also to be taken into account. This would apply to any Claimant not in the same level of employment as this Claimant who might have a cost of care claim in the event of loss of vision.