Abstract
Background
T, born in 1959, pursued a claim for damages for personal injury as a result of negligent medical treatment he received under East of England Strategic Health Authority arising out of a prescription of the anti-psychotic drug Chlorpromazine which caused him to develop a priapism (persistent erection) causing damage leading to impotence.
T was in good heath until 23 September 1983 when he was involved as a passenger in a road traffic accident. Shortly therafter, he became depressed and suffered mood swings.
In October 1984, T presented to his GP with symptoms of mental illness. Consequently, he was referred to Fulborn Hospital, Cambridge. Since that time he has been prescribed various medications including anti-psychotics, antimanics, Benzodiazepines, antidepressants and anti-cholinergic drugs. Specifically, T was prescribed Chlorpromazine and anti-psychotic medication, on various occasions over the years and, in particular, between January and July 1992, July 1993 and June 1995 and April 1996 and January 1998. Trazadone was also prescribed on one occasion in July 1993.
On 17 July 1993, T developed priapism and an operative relief was performed at Addenbrooke's Hospital the next day. The cause of the problem was felt to be the Trazadone and the medication was never prescribed again. T did, however, continue to suffer with persistent priapism. The urologist advised that Lithium may be responsible, and so the Lithium was gradually reduced. Notwithstanding this, T continued to suffer with persistent priapism until mid-November 1996.
On 6 November 1996, T suffered a priapism that did not respond to treatment. It settled by 13 November 1996, but he was advised that he would now probably be impotent. This diagnosis was subsequently confirmed by a cavernosogram (a radiographic picture of the vascular picture in the penis).
T's claim was ‘investigated’ by four successive firms of Solicitors from 1995 onwards. Eventually, in 2005, conduct of the claim was transferred to Tee Lorimers.
By this time the clinical negligence claim was apparently several years out of time. Some of the previous solicitors' files of papers were missing, and what existed suggested that very little, if any, investigation had taken place into T's clinical negligence claim. Investigations were, therefore, commenced from scratch.
Allegations of negligence
The Claimant obtained expert evidence from a consultant pharmo-psychologist and a urologist. It was their view that the first priapism in 1993 was most likely due to the Trazadone and that this sensitized T to particular properties contained within Chlorpromazine, such that the priapisms that T experienced from July 1993 – mid-November 1996 were due to the Chlorpromazine. Further, as a result of the significant priapism in November 1996, T suffered impotence. Both experts also agreed that in these circumstances, it was inappropriate to prescribe Chlorpromazine, there being other anti-psychotic medications which could have been effectively prescribed, which did not carry this side-effect.
Losses
The claim was for general damages only – while T had become impotent, having undergone a penile implant, he was able to achieve penetrative intercourse and was expected to be able to father children. There was no loss of earnings claim (T was unable to work because of his mental illness and not his impotence); there was a de minimis element of special damages in respect of travel expenses to and from his urology appointments; there were no future losses – any future urological treatment relating to his penile implant is provided in London, at a centre of excellence, and it is, therefore, advisable for T to continue to receive his treatment on the NHS, rather than at a more local private healthcare provided.
Settlement
Having concluded the initial investigations, it was clear that the clinical negligence claim was prima facie several years out of time. Limitation against the potential Defendants in the professional negligence claim was also imminent.
A Claim Form was, therefore, issued and served as follows:
Against the East of England Strategic Health Authority in respect of the clinical negligence claim; Against the four previous firms of solicitors in respect of a professional negligence claim.
Detailed letters of claim were served on all parties in both actions.
In the professional negligence claim, the Parties agreed a stay of proceedings, pending the determination of the issue of limitation in the underlying clinical negligence claim.
In the clinical negligence claim, the Defendant denied liability in their Letter of Response. Proceedings were, therefore, served. The Parties entered into negotiations before the Defence was filed, settlement being agreed at £28,500 plus costs. This settlement figure represented a significant discount for the litigation risks of proceeding with a claim, prima facie, 7 years out of time.
The Claimant, thereafter, pursued T's former solicitors for the balance of the damages due in a professional negligence action, and T recovered a further £20,000 plus costs. Proceedings against the First, Second and Third Defendants (individual partners in the first and second firms of solicitors) were discontinued with no order as to costs, on the basis that the larger claim lay against the Fourth and Fifth Defendants.