Cases: Delay in diagnosing bilateral dislocation of both hips

Summary of facts

The Defendants admitted breach of duty in failing to diagnose the Claimant's congenital bilateral dislocation of the hips until she was nearly 3 years old. They admitted that she should have been diagnosed at about 13 months. It was agreed that in the absence of the Defendants' breach the Claimant would have required open reduction of both hips but there would have been a satisfactory outcome until in her mid-50s she would have required bilateral hip replacements. As a result, the admitted breach of duty the Claimant had already undergone extensive surgery by the date of settlement and would require further surgery in the future. In particular the Claimant would require a right hip replacement in her 20s with revision in her mid-30s. By her mid-40s she would require a Girdlestone's arthroplasty on her right side, entailing the removal of her joint replacement components. She would require a left hip replacement at about the age of 40 years with revisions thereafter. At the date of settlement, the Claimant had a limited walking distance, stiffness of her hips and an unsteady gait. She used a wheelchair for longer distances and required single-storey accommodation. From her mid-40s she would be effectively wheelchair-bound and require assistance with transfers.

Unrelated to the Defendants' breach of duty, the Claimant was born with septo-optic dysplasia – a malformation of the brain that had resulted in her suffering severe visual impairment, cognitive and learning difficulties and an endocrine deficiency. It was agreed by educational psychologists instructed by the parties that the Claimant had a significant cognitive deficit with limited intelligence, weak verbal memory and she would be vulnerable upon leaving the educational system. She would always require advice and supervision for much of her daily living as a result of these difficulties. In addition, as a result of her visual impairment, again unrelated to the admitted breach of duty, the Claimant would require assistance with some domestic activities and with navigating unfamiliar environments. She would probably have been incapable of remunerative work irrespective of the Defendants' breach of duty.

Proceedings

Proceedings were issued on 11 May 2005 and judgment entered for damages to be determined in July 2005. The claim was agreed between the parties and approved by the Court – Mr Justice Coulson sitting in Manchester – on 2 March 2009.

Periodical payments vs. lump sum

The claim was settled and approved on a lump sum basis. There were three principal reasons why a lump sum payment was regarded as preferable to a periodical payments order:

The Claimant's care needs would fluctuate considerably as and when surgery was required. Predictions as to the dates when such further surgery would be required could be not be regarded as being precise;

Professional Deputy/Court of Protection

It was agreed that the Claimant would always be a protected party as a result of her learning difficulties and vulnerability. Her lack of capacity was not attributable to the breach of duty, but in the absence of the tort she would have not have been in receipt of a large capital sum and would not have required the services of a professional deputy or similar.

Breakdown of Damages

This was a global settlement but the Claimant's representatives' breakdown of the award is as follows: General Damages

£115,000