Marion Miller v Imperial College Healthcare NHS Trust
| Jurisdiction | England & Wales |
| Judge | HHJ Curran,His Honour Judge Curran |
| Judgment Date | 14 November 2014 |
| Neutral Citation | [2014] EWHC 3772 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ12X03344 |
| Date | 14 November 2014 |
[2014] EWHC 3772 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
His Honour Judge Curran QC
(SITTING AS A JUDGE OF THE HIGH COURT)
Case No: HQ12X03344
Christopher Hough (instructed by Messrs Leigh Day) for the Claimant
Matthew Barnes (instructed by Messrs Capsticks) for the Defendant
Hearing dates: 22–25 July 2014
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
HHJ Curran QC
His Honour Judge Curran QC:
Introduction
This is an assessment of damages in an action brought by the Claimant, Mrs Marion Miller, against the defendant NHS Trust for personal injuries caused by clinical negligence in their treatment of her. Liability has been admitted. The negligent treatment resulted in her suffering injuries which eventually made it necessary for an amputation of her left leg to be performed. Two surgical operations proved to be necessary as the first, an amputation below the knee, was not successful, and a further above-knee amputation was therefore performed.
Mrs Miller was born on the 3 rd October 1943, and was aged 63 when her leg was amputated. She is now 70. She grew up in Greenock in Scotland and was married in 1965. She and her husband moved to London in 1973. They later separated and were divorced in 1988. Her former husband died at about the time she was admitted to hospital, and she was unable to attend his funeral.
Mrs Miller has two grown-up children, a son and a daughter: Robert and Lesley. Robert has three children. He is a freelance film editor and lives with his family in Barnes. Lesley has a daughter, Lauren, and has a flat in North Acton, although she is regularly away from London for work. Mrs Miller has other members of her family who live still in Scotland.
When she first attended the defendant Trust's hospital on 28 th January 2007, she had been complaining of increasing pain in her leg, which was cold, and blue and white in appearance. She lacked pulses in the ankle and foot. It is now admitted that she required urgent vascular review, administration of heparin, and surgery. In fact, Mrs Miller was discharged. By the time she returned to the hospital a few days later, her condition had deteriorated to the extent that the opportunity for successful treatment had been lost.
It is admitted by the defendant Trust that the above-knee amputation and its very severe consequences could have been avoided had they offered competent care when Mrs Miller attended on the 28 th January 2007. On 30 January 2007, she was urgently referred to Charing Cross Hospital where she was diagnosed with an acutely ischaemic left leg. By that point, her whole foot was blue and the pain was unbearable. The surgeons tried to save her leg by performing an embolectomy and a by-pass, but these were unsuccessful. The below-knee amputation was performed on 1 February 2007 and the above-knee amputation on 13 February 2007.
The first few weeks after surgery were, she said, " a bit of a blur" as she was on so much medication, but she remembers feeling shocked and devastated about what was happening to her. Immediately after the first amputation she was kept in a recovery room for a few days as the ward was infected with MRSA. She was then moved to an acute vascular ward until her second amputation on 13 February 2007. After that operation she went back to the same ward where she stayed for about five weeks. She was, she says, " in terrible pain" during this time and suffered from bad phantom pain and stump pain. She had the benefit of a morphine pump and also had sub-cutaneous salicylate injections to help with the phantom pain. From the time she was moved to the acute vascular ward, she had regular physiotherapy and vascular review. Nevertheless, the degree of phantom pain and stump pain required the attention of the pain management team. She remembered that the stump was very swollen "… as there was lots of scar tissue and there were staples all the way around the bottom of it."
Mrs Miller was transferred to the rehabilitation ward after about 5 weeks and stayed there until her discharge on 16 April 2007. Quite early on, a trial was made of a 'foam leg' so that she could begin to use a prosthesis. She attended the limb fitting service regularly, and she found that she was in fact soon able to use a prosthetic leg. She was determined to get back on her feet as quickly as possible and used the amputee gym as much as she could. She found the task " really tough" and, whilst there were times when she felt as though she " wasn't getting anywhere," she persevered. I accept her evidence entirely (it was unchallenged on this aspect of the case) and I find as a fact that she used all the determination, both mental and physical, which is humanly possible to overcome the formidable problems so disastrous an event as an above-knee amputation involves. I have no doubt that all that took a physical and mental toll. No doubt because she was so fit a woman when the disaster occurred she was able to make a much better recovery than would otherwise have been possible. By the time Mrs Miller was discharged home she was " fairly mobile on the leg" which is in itself remarkable. She had spent about two-and-a-half months as an in-patient.
GENERAL DAMAGES
Principles to be followed in assessment
Counsel for the Claimant, Mr Hough, relies upon the well-known dictum of Lord Blackburn in Livingstone v Reynolds Coal Company [1890] 5 AC 25 as the relevant principle for the court to apply in assessing the quantum of damages in this case:
"Where any injury is to be compensated by damages, in settling the sum of money to be given for reparation or damages you should as nearly as possible get that sum of money which will put the party that has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation…."
Counsel for the Claimant submits that in respect of awards of damages the provision of past and future care, and for equipment, aids and appliances, the court must apply the test of 'reasonableness': the Claimant is entitled to damages to meet her reasonable requirements or reasonable needs arising from her injuries. There may be a range of reasonable options to meet the Claimant's needs, and the most reasonable option may not be the least expensive one available. It is common ground that the defendant Trust could not be required to pay for an option chosen by the Claimant if that choice was unreasonable and another less expensive solution was reasonable.
A very helpful restatement of the proper approach to be taken is to be found at paragraph 94 in the judgment of Lloyd Jones J, as he then was, in A v Powys Health Board [2007] EWHC 2996:
"The basis of assessment is the test of reasonableness as stated in Rialis v Mitchell, (Court of Appeal, 6 th July 1984) and Sowden v Lodge [2005] 1 WLR 2129. The Claimant is entitled to damages to meet her reasonable requirements and reasonable needs arising from her injuries. In deciding what is reasonable it is necessary to consider first whether the provision chosen and claimed is reasonable and not whether, objectively, it is reasonable or whether other provision would be reasonable. Accordingly, if the treatment claimed by the Claimant is reasonable it is no answer for the defendant to point to cheaper treatment which is also reasonable. Rialis and Sowden were concerned with the appropriate care regime. However, the principles stated in those cases apply equally to the assessment of damages in respect of aids and equipment. In determining what is required to meet the Claimant's reasonable needs it is necessary to make findings as to the nature and extent of the Claimant's needs and then to consider whether what is proposed by the Claimant is reasonable having regard to those needs. ( Massey v Tameside and Glossop Acute Services NHS Trust [2007] EWHC 317 (QB), per Teare J. at para. 59; Taylor v Chesworth and MIB [2007] EWHC 1001 (QB), per Ramsay J. at para 84.)"
The expert witnesses
The expert witnesses relied upon by each side are the medically-qualified rehabilitation experts Dr Sooriakumaran, called by the Claimant, and Prof. Hanspal, who was called by the defendant Trust. There was a significant measure of agreement between the doctors on most of the points upon which their opinions were sought. To the extent that they differed in their views, I preferred the opinion of Dr Sooriakumaran to that of Professor Hanspal. I set out my reasons for this preference in detail below, after reviewing the cross-examination of each of them. In the very briefest terms at this point I would summarise it by saying that whilst counsel for the defendant Trust made perfectly proper criticisms of Dr Sooriakumaran in respect of a discrepancy between two different reports which he had given, Dr Sooriakumaran nevertheless seemed to me to be quite uninfluenced by any motive other than to inform the court of his objective up-to-date view. Prof. Hanspal, by contrast, gave me the impression at times that he was almost arguing the case for the defendant Trust rather than giving a wholly dispassionate objective opinion. He very properly made some frank concessions during cross-examination, but the overall tenor of his view was one of faint disapproval of the Claimant's choice of the most expensive form of prosthesis, combined with concern over the cost to the Trust. Moreover, his pessimism as to the Claimant's future mobility, when tested in cross-examination, had no real clinical substance, as a...
To continue reading
Request your trial