(1) Connor Smith (by His Mother and Litigation Friend Nicola Smith) (2) Nicola Claire Louise Smith (Who Sues as Personal Representative of The Estate of Callum Smith, Deceased) v University of Leicester NHS Trust

JurisdictionEngland & Wales
JudgeHis Honour Judge McKenna
Judgment Date15 April 2016
Neutral Citation[2016] EWHC 817 (QB)
Docket NumberCase No: B90BM161
CourtQueen's Bench Division
Date15 April 2016

2016 EWHC 817 (QB)

IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION BIRMINGHAM DISTRICT REGISTRY

Royal Courts of Justice Strand, London, WC2A 2LL

Before:

His Honour Judge McKenna

Case No: B90BM161

Between:
(1) Connor Smith (By His Mother and Litigation Friend Nicola Smith) (2) Nicola Claire Louise Smith (Who Sues as Personal Representative Of The Estate of Callum Smith, Deceased)
Claimants
and
University of Leicester NHS Trust
Defendant

Simeon Maskrey QC (instructed by Irwin Mitchell Solicitors LLP) appeared for the Claimant

John Whitting QC (instructed by Browne Jacobson LLP) for the Defendant

Hearing dates: 21 st March 2016

His Honour Judge McKenna

Introduction

1

Neil Caven suffers from Adrenomyeloneuropathy (AMN) which is a complex relatively longstanding genetic disease which adversely impacts upon the myelin or white matter of the brain.

2

Connor Smith is, and Callum Smith was, a second cousin of Mr Caven. Connor suffers from Adrenoleukodystrophy (ALD) the childhood version of AMN, as did Callum until his death on 26th April 2012 of a cardio-respiratory arrest consequent upon ALD, their diagnosis having been made in 2006.

3

The Defendant, University Hospitals of Leicester NHS Trust, is responsible for the Leicester Royal Infirmary and for the diagnostic, medical and other services provided by that hospital.

4

Connor Smith, who was born on the 1st September 1997, brings a claim against the Defendant through his mother and litigation friend Nicola Claire Louise Smith, who also sues on behalf of the dependants of Connor's brother, Callum Smith (who was born on 20th October 1999) for a bereavement award pursuant to the Fatal Accidents Act 1976 (as amended) and on behalf of Callum's estate.

5

In summary, what is said on behalf of the Claimants is that the condition suffered by Mr Caven should have been diagnosed by the Defendant earlier and this would, in turn, have led to an earlier diagnosis of the condition in both Callum and Connor leading to a significantly better outcome for both boys.

Factual Background

6

On 19th March 2003 Mr Caven was seen by Dr Yousef Rajabally, a Consultant Neurologist at the Leicester Royal Infirmary. As part of the diagnostic work up, Dr Rajabally requested testing of very long chain fatty acids (VLCFA). This test was not in fact undertaken at the time and Mr Caven did not undergo such testing until after his second cousin, Callum Smith, was diagnosed with ALD following an acute admission on 23rd March 2006.

7

In March 2006, Callum was 6 years old and was admitted to hospital suffering from a high temperature, vomiting, loss of vision and was unsteady on his feet. He underwent testing and was diagnosed as suffering from ALD. Following Callum's diagnosis, his brother Connor underwent testing for the condition and he too was diagnosed as suffering from ALD. By the time of the diagnosis, the symptomology so far as Callum was concerned was too far advanced for haematopoietic stem cell transplantation to be of any benefit to him. He received treatment with Lorenzo's oil but his neurological condition deteriorated rapidly and he died on 26th April 2012.

8

Following the diagnosis of both Callum and Connor, Mr Caven was seen by Dr Rajabally in clinic who told him that his first cousin (his mother's sister's daughter, Nicola Smith (mother of Callum and Connor Smith)) had been identified as a carrier of ALD and that her three sons had been identified with the condition "early in life". It was at that point that Dr Rajabally noticed that the VLCFA test had not been performed previously on Mr Caven and he again ordered that the test be performed.

9

On 11th August 2006 Mr Caven was informed that the VLCFA result was abnormal and consistent with a diagnosis of the adult form of ALD.

10

Genetic testing was ordered which confirmed the diagnosis. The genetics report dated 11 th September 2006 advised:-

"other members of his family are at high risk of this disorder. We strongly recommend referral to the genetic counselling services where the implications of this report and testing of other family members if required can be discussed."

11

Connor's diagnosis was made following, and because of, that made in respect of his brother. Unlike his brother, however, he was not demonstrating any clinical signs or symptoms of the disease and because the disease was not so advanced in him, he was considered suitable for bone marrow transplantation, which he underwent on 25 th September 2006.

12

On 28th February 2007 and 1st June 2007 Connor received two additional leukocyte infusions. He has also been treated with hydrocortisone and Lorenzo's oil.

13

It would appear that his general health is now satisfactory. Neurological function is reasonably normal although there are significant intellectual and neuropsychological problems. His adrenal impairment is managed satisfactorily and there has been no material deterioration since 2007.

The Claim

14

The Claimants allege that the Defendant was in breach of its duty of care in failing to perform the VLCFA test on Mr Caven when it was ordered in 2003. It is said that had it done so, it would have been positive, as it was in July 2006, and a positive test would have led to testing of the wider family (as was recommended in the report of 11 September 2006) which would have included the Claimants. This in turn would have led to their diagnosis some two and a half to three years earlier than was in fact the case and such an earlier diagnosis would have led to a materially improved outcome for both Callum and Connor.

The Application

15

The Defendant applies to strike out the Particulars of Claim as disclosing no reasonable cause of action pursuant to CPR Part 3.4 and/or in the alternative for Summary Judgment under CPR 24.2.

16

CPR Part 3 .4 provides that:-

ii) The court may strike out a Statement of Case if it appears to the court that

a) the Statement of Case discloses no reasonable grounds for bringing or defending the claim;

17

CPR Part 24 .2 provides that:-

The court may give Summary Judgment against a Claimant or Defendant on the whole of the claim or on a particular issue if –

a) It considers that –

i) The Claimant has no real prospect of succeeding on the claim or issue; and

b) There is no other compelling reason why the case or issue should be disposed of at a trial.

18

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