The claimant (LK) was a child who was born at 33 weeks and 5 days gestation. The birth proceeded uneventfully and LK had no resuscitation, apgar scores were 9 at 1 minute, 9 at 5 minutes. Due to his prematurity he was transferred to the special care baby unit where a routine CT scan was undertaken at day 2 which showed a left ventricular dilatation with a right subependymal haemorrhage which was not thought to be significant at the time. He was subsequently discharged home with follow up care by the midwife and health visitor.
Concerns were raised by LK’s mother about the poor weight gain of LK however, she was reassured by the health visitor on a number of occasions. At birth LK weighed 2.24kgs and at week 5 he weighed 5.35kgs.
A Few days later, LK’s body became cold to touch and he became very distressed. The health visitor made a routine visit on the morning and LK’s mother sought advice from the health visitor. The health visitor’s advice was “cold to touch, advised to use bonnet and hot water bottle on outside of bed clothes. Reported to be colicky and not feeding well, use Infacol”.
Over night LK’s health deteriorated as he was unable to feed. LK’s mother phoned the GP practice, a GP attended and recommended an immediate admission into hospital. On admission LK’s temperature was 28 degrees centigrade and he was diagnosed as having hyperthermia, pneumonia and septicaemia. He was transferred from City Hospital to Birmingham Children’s Hospital to have specialist care and he was ventilated and intubated. Eventually he was diagnosed with having spastic quadriplegia, was initially fed through a nasal gastro tube until a gastrostomy was fitted. He has limited mobility and is totally dependent on others for his care and he suffers from sever visual impairment.
At the outset of the case we investigated and obtained a report from a health visitor. It was found that the health visitor had breached her duty of care in that she had incorrectly plotted the weight gain and should have made an earlier referral to hospital due to poor weight gain and it was mandatory for her to seek an urgent opinion either from a General Practitioner or the on-call Duty Paediatrician at the hospital. We obtained a report from the Neo-natologist to examine the treatment that LK received following his diagnosis at City Hospital and Birmingham Children’s Hospital which was felt to be entirely appropriate and also commented on the issue of causation and the appropriate times for referrals and what the likely course of events would have been had an earlier referral been made. We also obtained a report from a Consultant Neuro-radiologist to consider the earlier CT scan at day 2 of LK’s life and considered the brain injury and the likely causes and time frame of the insult.
Following this evidence we were able to build a case on the basis that it was probable that LK was suffering from an acute viral illness, probably a viral respiratory illness which had become increasingly hypothermic and that a referral should have been made. Had LK been admitted earlier he would have been warmed up, given intravenous fluids and inotropic drugs (as necessary to support his cold circulation) and in consequence he would have avoided his brain injury as a matter of probability and he would now be intact.
Following a detailed letter of claim being presented to the defendants the defendants admitted liability and causation and the focus of the case then turned to quantum.
Due to LK’s significant disabilities we obtained report from the following experts and specialisms:
We asked the defendants for voluntary interim payment in the sum of £500,000.00 in order to enable LK to purchase appropriate accommodation together with a care regime, appointed case manager and carers.
Initially the defendants would not agree to make a voluntary interim payment however, once an application was issued this was forthcoming.
The client was a protected party, prior to recovering any compensation, appropriate arrangements had to be made through the Court of Protection in order that money could be administered.
Prior to the approval hearing we sought an anonymity order that the claimant’s details be kept private, the defendant also then asked for their details to be kept private. His Honour Judge Tugendhat gave a judgment which has now been recorded in relation to anonymity orders and what evidence must be produced before the court in order that an anonymity order be granted and that it must not be taken for granted that in cases involving significant sums of damages that an anonymity order would be granted. In this particular case the claimant was granted anonymity but the defendant was not as they were unable to convince the court that it would be prejudicial to them not to have an anonymity order.