Over the past three years, my practice has helped over 70 victims and their families to claim compensation valued in excess of £85m.
However, looking back through this portfolio, it’s become clear to me that as many as 20% of these cases would have been dropped completely had today’s legal aid restrictions been in place, particularly given the fact that funding has been removed from all but birth-related cases.
With each of my successful cases resulting in a full costs refund to the Legal Aid Agency, the parity this achieves in cost-benefit terms leads me to the conclusion that the true end game of government in implementing today's legal aid restrictions must be the reduction in damages paid out by the NHS Litigation Authority to victims of medical negligence.
The true victims of the legal cuts are deserving, borderline cases which are only likely to have been brought with the benefit of public funding and in this article I have sought to provide a few examples from my recent caseload to prove my point.
As anyone connected to the healthcare system will know, when Doctors make poor decisions or react when it is too late, the consequences can be both devastating and life-changing for patients and their families. As Lawyers we don’t have the power to undo the damage caused by medical negligence but we can help to ensure the future of those who are left deeply scarred by failures in care and clinical treatment.
In A v Whipps Cross University Hospital NHS Trust, the cause of the child’s injury only became evident through a legal-aid funded investigation revealing a one in a million condition which should have been identified 11 days after the child's birth (the child was three years old when her brain injury actually occurred).
The child was born in June 1997 and was a perfectly normal, healthy little girl until May 2000 when aged three she fell off her bed at home and struck her head. She later complained of headache and vomited and her mother took her to hospital. A CT scan revealed a haematoma and midlife shift and she underwent a craniotomy. On 23 July 2000 she suffered another large intracerebral haemorrhage. She now has severe brain damage, is blind and will need care for the rest of her life.
The Claimant’s mother was concerned that A’s brain injury was caused as a consequence of negligent care (rather than the injury caused by banging her head when she fell off her bed).
Expert opinion was obtained which exonerated the hospital in respect of the girl’s medical care following her accident in May 2000, but that was not the end of the story.
On reading the notes I spotted that in June 1997 (at age 11 days) A’s mother had taken her to hospital with persistent bleeding from the umbilical stump – a classic feature of Factor XIII deficiency, an inherited blood disorder and type of haemophilia - literally one in a million.
The questions were now: -
- Should she have been diagnosed with Factor XIII deficiency earlier in her life?
- How would this have been treated?
- Would she have then avoided the haemorrhage/brain injury which occurred when she fell off her bed and banged her head at age three?
A paediatrician was instructed who concluded that Factor XIII deficiency should have been considered earlier. A haematologist concluded that once diagnosed, the girl would have been treated with infusions of Factor XIII prophylactically to prevent bleeding. A paediatric neurologist concluded the haemorrhage/brain injury would then, on balance of probabilities, have been avoided when she fell off her bed and banged her head.
The case settled shortly before trial with A receiving a multimillion pound award.
This case did not involve brain injury at birth, in fact the brain injury occurred 3 years later, and it's questionable whether anyone would been brave enough to take such a case on today under a no win no fee, particularly since the case concerned a failure to diagnose a one in a million blood disorder.
Without the benefit of legal aid, which is no longer available for this type of case, it is likely A’s case would have fallen through the cracks and her continuing care would need to be paid for through another means such as statement of special educational needs.
Anotherexample is ‘Ryan’ who was born at 36 weeks by caesarean section and now has spastic diplegic cerebral palsy. His disability is physical (not cognitive), his mobility is severely limited by muscle weakness, abnormally increased muscle tone in his hips and lower limbs and by fatigue and pain. Over time he will have progressive worsening of his ability to walk and there is a 30% probability he will lose the ability to walk after the age of 40.
Ryan’s mother contacted a local firm (not us) for advice. That firm obtained Ryan’s hospital notes and a report on liability from an obstetric expert (as well as a report on causation from a paediatric neurologist).
The obstetric expert concluded that there had been a negligent delay in delivering Ryan.
The paediatric neurologist (instructed to consider causation) concluded that the delay was not responsible for Ryan’s brain injury (which he was unable to explain). Ryan’s mother was told that any claim would fail on causation and so the case was abandoned.
Ryan’s mother was referred to me and upon reading his notes it became clear that not only did he have very low blood glucose levels during the first six days of his life, it appeared that he had been allowed to remain grossly hypoglycaemic for a significant period of time.
Thankfully, legal aid was reinstated for a second investigation and this time a consultant neonatologist was instructed to consider Ryan’s management in the early neonatal period.
This expert concluded that Ryan’s care during the first few days of life was substandard and negligent. He was allowed to remain grossly hypoglycaemic for a significant period of time and there was a negligent failure to respond adequately to this with appropriate treatment.
A new paediatric neurologist was instructed to provide an opinion on causation. She concluded that as a direct consequence of the negligent care provided to Ryan in the early neonatal period (resulting in Ryan being grossly hypoglycaemic for a significant period of time) he suffered brain damage.
Liability and causation was denied and the case was listed for trial in the High Court.
An appropriate standard in 1989
One of the key issues in the case was “what was the appropriate minimum standard in 1989 when the claimant was born for a neonates blood glucose level before intervention was necessary?”
The defendant said before intervention was needed the baby’s blood glucose level should be less than 1. We argued it was less than 2.2.
None of the experts were able to provide any medical textbooks evidencing the position in 1989 because (not surprisingly) they had thrown them away and most libraries had deleted the titles. However, after spending a few days and weeks trawling Ebay/Amazon and second hand book sites I eventually located a dozen or so paediatric textbooks, all of which supported the claimant’s case on breach of duty.
The case settled shortly before trial with Ryan receiving a multimillion pound award. It is again questionable whether public funding would now be available for this case which did not involve an injury at birth and without the benefit of such funding it is unlikely the case would have been brought.
As these two cases confirm, such claims require experts in Obstetrics; Midwifery (particularly in cases where midwifery care is being criticised), neonatal care (to see whether any part of the brain damage may have been due to substandard resuscitation or neonatal care) a Paediatric Neurologist to establish the nature of the cerebral palsy and whether with earlier delivery, brain injury would (on balance of probabilities) have been avoided, and a Paediatric Neuroradiologist to look at CT and MRI images in order to determine the actual damage done to the brain.
The ability to investigate a large number of these cases swung entirely on our receiving legal aid and without it neither individual would have received the compensation they deserve. Neither are they isolated cases. Frequently my practice faces the stark reality of a parent or injured claimant who regardless of how convinced they are that negligence occurred at birth, they simply won’t be granted the financial resources to get to the truth.
Peter Stefanovic, Medical Negligence Solicitor and partner at Simpson Millar