Case: AE (A Patient by his Mother and Litigation Friend) (1st Claimant) and ME (2nd Claimant) v Great Ormond Street Hospital for Children NHS Trust

Background

At 7-years old, the Claimant (born 16th March 1993) developed epilepsy and in November 2005 was referred to a specialist at Great Ormond Street Hospital (GOSH) to advise on future management.

His management plan included a reduction in the dose of his anti-epileptic medications, in order to provoke seizures so that they could be recorded on the video telemetry. The Claimant received his (reduced) medications and remained in his room with his mother.

At around 18.30, the Claimant's mother told the student nurse who was observing the video telemetry screens that she was getting some food. The student nurse agreed to watch the Claimant in her absence.

At around 18.50 hours the Claimant left his room, unobserved by the student nurse and went to a toilet cubicle unaccompanied.

Whilst in the cubicle, the Claimant suffered a generalised tonic clonic seizure which caused him to compromise his airway or else led him to vomit which in turn, obstructed his airway.

The Claimant suffered a cardiac arrest causing a severe hypoxic ischaemic injury to his brain, resulting in catastrophic brain injury. Breach of duty and causation were ultimately admitted.

Allegations of negligence

It was alleged that the Defendant was negligent in failing to arrange appropriate monitoring and supervision of the Claimant by appropriately experienced and qualified staff, in the knowledge that the Claimant was likely to suffer seizures. It was further alleged that the Defendant was negligent in failing to have a toilet cubicle door which could be removed from its hinges in the event of a patient suffering a seizure whist using the toilet.

Losses

The following key factors dominated the discussion and valuation of this claim:

Life Expectancy

The respective experts agreed that life expectancy in this case was very difficult to predict and that the margin of error in their clinical estimates was a wide one. Both experts urged that this case should be resolved on the basis of a periodical payment award. Subject to that, there remained a difference of emphasis or confidence between the respective experts. The Schedule of Loss was based on a “claimant interpretation” of 12½ years from trial, whereas the counter-schedule was based on a Defendant interpretation of 11 years and 3 months further life.

In approaching negotiations and valuation, the Claimant's advisers adopted the longer period and applied a life multiplier which was calculated by reference to the Notes to the Ogden Table which advocates the use of Table 1 of the Ogden Tables for the calculation of “impaired life expectancy”.

The compromise valuation was therefore based on a multiplier of ×10.27 rather than 10.76 of the Schedule of Loss, or the lower 9.27 of the Counter-Schedule.

The formula works well in a case where life expectancy is long and where the claim contains substantial elements for future loss, including loss of future earnings from which the initial capital purchase can be made. It works less well where the life expectancy is short and where there is only a modest loss of earnings claim.

After much discussion it was decided that the housing claim in this case should be valued on the conventional R v J basis for four reasons: firstly, after considering the Claimant's capital needs, it was felt that it would be difficult to portray this as a case where that formula produces such a starkly unjust result that it should be departed from.

Secondly, the family were ultimately opposed to the idea that the Claimant should live in a home which, in legal terms, was partly owned by the Defendant and that the property would need to be sold after his death. Thirdly, the NHSLA believed that there are “ultra vires” problems involved in entering into the kind of transaction which the mortgage solution entails. Fourthly, the issue would need to go to trial in order to obtain a new approach in this case, which would put at risk the overall settlement package offered through negotiation.

Settlement

At an Approval Hearing on 29th June 2010, the Court approved terms of settlement agreed between the Parties for a lump sum payment of £1,270,000.00, with annual periodical payments of £355,750.00 with ASHE 6115 inflationary increases (90th centile) and with a Peters Undertaking. The Parties did not reach agreement as to the precise valuation of the heads of claim excluding contingencies, however, an approximate breakdown of the valuation of the Claim is as follows: General damages

£190,000