Abstract
The claimant, a 14-year-old boy, received £80,000 for the delay, between March and July 2002, incorrectly diagnosing and treating cancer in his leg. He later underwent chemotherapy which carried a very high risk of causing infertility.
The Claimant was 7 years of age at the date of the alleged negligence, and 14 years of age as at the date of settlement.
In 2002, the Claimant began to suffer increasing pain in his left leg, as a result of which he was referred to the Royal United Hospital in Bath. The Claimant was further referred onto Bristol Children's Hospital, on the basis that the problems with his left leg might be an aggressive form of bone cancer called Ewing's Sarcoma. The Claimant was first seen at Bristol Children's Hospital on 5th March 2002.
Unfortunately, following initial investigations at Bristol Children's Hospital, it was decided, despite the clinical evidence, to treat the Claimant as if he had an infection, when in fact he was suffering from Ewing's Sarcoma. The Claimant was started on antibiotics on 15th March 2002, but he remained in excruciating pain, requiring maximum doses of painkillers. The staff at D's hospital maintained that the Claimant was suffering from an infection in his leg despite his ongoing pain, and cancer was excluded as a possible cause. His cancer was not finally diagnosed until 11th July 2002 and treatment began on 22nd July 2002.
The Claimant alleged that the Defendant was negligent in failing to diagnose that he was suffering from Ewing's Sarcoma, despite several opportunities to make this diagnosis, between 6th March 2002 and 11th July 2002. The Defendant eventually admitted that there was a negligent delay in diagnosing the Ewing's Sarcoma between March and July 2002, with the effect that there was a delay in starting treatment of the cancer until late July 2002.
It was the Claimant's case on causation that during the delay in diagnosis and treatment of his cancer between March and July 2002, there was metastatic spread of the tumour from the left to the right leg, in addition to the unnecessary pain and suffering during that 4 month period.
The Claimant further alleged that as a result of the delay in diagnosis and treatment of the cancer, and its spread, that he had to undergo a far more aggressive form of chemotherapy treatment than would otherwise have been required, as a result of which he went from a 25% chance of infertility to a 90% or near certainty of infertility. The Defendant never admitted this aspect of the claim, contending that the cancer had already spread when it should have been first diagnosed in March 2002, and that therefore the Claimant would always have required high dose chemotherapy and therefore be rendered infertile. The expert evidence on this aspect of the claim was very finely balanced.
The full value breakdown of the Claimant's claim was as follows:
General damages – for unnecessary pain and suffering for 4 months, infertility, and including a head of loss of loss of marriage prospects to reflect the cultural elements of the Claimant's Muslim faith - £61,000. Special Damages comprising:
Past Travel Expenses - £1,500.00 Past Gratuitous Care - £14,000.00 Costs of a Private Tutor - £45.00 Interest on past losses - £3,000.00 Future costs of Psychiatric Treatement - £1,000.00 Future costs of Fertility Treatment - £20,100.00 Future Travel Expenses - £200.00 Future Medication costs - £200.00
Given that it would not be until the Claimant was 16–17 years of age, that his fertility and the affects of overcoming infertility would become clear, the Court initially ordered a split Trial, that is the issues of negligence and the injury caused by that would be decided first, and the issues including the value of the claim in respect of infertility would be decided later on.
However, it became clear during the course of the claim, that the expert evidence for both sides upon the issue of the delay in treatment resulting in the need for high dose chemotherapy and therefore infertility, was very finely balanced and therefore despite the gaps in evidence, the Claimant's claim was settled on a full and final basis, on a worst case scenario that the Claimant will be infertile, will be psychiatrically injured as a result of that infertility and will require treatment to try and overcome the affects of that infertility in the sum of £80,000. The full value of the Claimant's case was compromised to reflect the litigation risk to the Claimant of the finely balanced expert evidence. This settlement was approved by the Court as the Claimant is a protected party.