Shaw v Kovac and Another
|England & Wales
|28 October 2015
| EWHC 3335 (QB)
|28 October 2015
|Queen's Bench Division
|Case No: TLQ/14/0645
 EWHC 3335 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
His Honour Judge Platts
(SITTING AS A JUDGE OF THE HIGH COURT)
Case No: TLQ/14/0645
Mr Berkley QC appeared on behalf of the Claimant
Mr Spilsbury appeared on behalf of the Defendant
This is a claim for damages brought by the claimant Mrs Shaw on behalf of the estate of her late father William Ewan who died aged 86 on 26 September 2007 following an operation for a transaortic valve implant. The operation was carried out by the first defendant Dr Kovac at the Glenfield Hospital in Leicester, which is administered and run by the second defendant trust.
Both defendants have recently consented to judgment being entered against them; the second defendant on 25 June 2015, the first defendant on 22 October 2015 (only four days before the trial). The matter remains live before me for an assessment of damages following those judgments.
In 2007 Mr Ewan was diagnosed with aortic valve stenosis. He was referred by his cardiologist, Dr Fitzpatrick, to Glenfield to see if there was anything they could do for him and in particular whether he was suitable for the transaortic valve implant procedure (known as the "TAVI" procedure). This was a relatively new treatment in 2007 and a trial of the procedure was being conducted by the first defendant at the second defendant's hospital. The procedure involves placing an artificial valve into the defective valve via a catheter in the femoral artery.
It seems alternative treatments for Mr Ewan, given his condition, would have been either open-heart surgery, but of course that carries obvious risks for anybody let alone the elderly; or conservative symptomatic treatment. The claimant's evidence is that her father had initially insisted that he was not going to go into hospital for treatment. However, after discussion with his family he agreed to meet with Dr Kovac. At an appointment on 12 June 2007 an echocardiogram was performed followed by a coronary angiogram under local anaesthetic on 28 June 2007. Mrs Shaw says in her witness statement that after the angiogram her father was "visibly more relaxed. He had seen what was happening to him and was awake throughout." He was subsequently advised that he was suitable for the TAVI procedure, but was told that he needed a larger sized valve than was currently available and he would have to wait.
On 4 September 2007 Mrs Shaw was told that a larger size valve had become available and on 25 September 2007 he was admitted to Greenfield. The procedure was performed under general anaesthetic on the 26 th. Sadly, shortly after the new valve had been fitted, Mr Ewan began to bleed from his aorta. It was decided to open his chest to determine the source of bleeding, but despite the doctor's attempts to stem the blood flow and Mr Ewan being transferred to the Intensive Care Unit he died shortly after his arrival in intensive care.
Although the defendants have never made any admission of liability and, indeed, Mr Spilsbury expressly indicated during the trial that there was no such admission, there is no issue that the factual basis for the judgment to which both defendants have submitted, and which they have chosen not to challenge, was that set out in paragraphs 9 to 15 of the Re-amended Particulars of Claim. In short, the claimant's complaints are, first of all, that her father never gave proper or informed consent to the TAVI procedure. In particular it is alleged that he was never informed that the procedure was newly developed and still the subject of clinical trials; that the prosthetic valve used in the procedure was not approved for public use, nor fully or adequately evaluated in terms of its safety and performance; or of the alternatives of either open-heart surgery or conservative treatment. Secondly, there is an allegation that the defendants failed to care for him properly once it was realised that there was damage to the aorta.
The litigation has had a prolonged history; that is partly due to the family's understandable desire to know what has happened to their much-loved father. His death was the subject of a lengthy inquest lasting 13 days, commencing on 4 January 2011. The family were concerned to investigate the use of the valve and in particular whether its use had been properly authorised by the relevant regulatory bodies. They had sought considerable disclosure of documents within the inquest as to the procedure's history and as to the valve's approval for use. The inquest, presided over by Deputy Coroner Nigel Godsmark QC sitting with a jury, concluded that the deceased had been told of the risks of the TAVI procedure, including the risk of death; that the valve used had been the smaller one, not the larger one; and that the death was an unintended consequence of a therapeutic procedure.
The family were not satisfied. They continued to have concerns that there had been no or no adequate investigation of the use of the TAVI procedure and whether it was properly authorised still subject to clinical trials and therefore whether it should properly have been used on Mr Ewan.
The claimant was granted permission to apply for judicial review of the Coroner's verdict. Judicial review was rejected by Burnett J on 27 February 2014 and Mrs Shaw's application for permission to appeal that decision to the Court of Appeal was refused at an oral hearing on 11 February 2014.
In the meantime the claim for damages (this claim) had been issued on 23 September 2010 and as I understand it was stayed pending the resolution of the judicial review proceedings. Once the claim was resurrected the claimant made repeated applications for disclosure, particularly concerning the trials of the prosthetic valve. All those applications were resisted by the defendants, but orders for specific disclosure were made on 15 October 2014, 18 December 2014, 20 January 2015 and a third party disclosure order was made against the manufacturers of the valve, CoreValve, on 29 April 2015.
It was only after that order that on 5 May 2015 the second defendant's solicitors informed the claimant's solicitors that it would not be seeking to defend the claim "arising from Mr Ewan's death". On 2 July 2015 judgment was formally entered against the second defendant.
However, the first defendant continued to resist judgment and, indeed, applied to be removed from the proceedings on the grounds that the claimant had a remedy in the form of a judgment against the second defendant and that in any event the second defendant had agreed to indemnify the first defendant. Not surprisingly, that application was refused and it was against that background that the first defendant himself submitted to judgment only four days before trial.
The claim is brought by the claimant as the personal representative of the estate of her late father. Under the Law Reform (Miscellaneous Provisions) Act 1934 and the Fatal Accidents Act 1976 (as amended), in fact there being no financial dependency on Mr Ewan the claim is in reality brought on behalf of the estate, save perhaps for the claim for funeral expenses which is recoverable under section 3(5) of the 1976 Act.
On 23 October 2015 the claimant made an application to be joined as a claimant in her personal capacity in circumstances to which I will return. However, the substance of the claim for damages which I have to deal with is that on behalf of the estate of Mr Ewan; that is I must consider to what damages he would have been entitled had he not died. The heads of loss which have fallen for consideration at this hearing have been: (1) pain, suffering and loss of amenity for the deceased Mr Ewan; (2) damages, which I will call for now, for loss of expectation of life; (3) costs of treatment; and (4) the funeral and associated expenses. In addition, there has been consideration of (5) the costs of the inquest; and (6) the cost of the judicial review and Court of Appeal proceedings, again to which I will turn in due course.
A claim in conversion in respect of the valve that was inserted into Mr Ewan and which has not been recovered by the family was abandoned shortly before trial.
Pain suffering and loss of amenity
The claim which is advanced and to which the defendants have submitted to judgment is that the deceased should have been told of the true position regarding the TAVI procedure at his first appointment with the first defendant on 12 June 2007. Had he been informed he would have not proceeded any further, he would not have had the angiogram on 12 and 28 June, nor would he have undergone the TAVI procedure which led to his death.
In my judgment, therefore, against that background compensation is recoverable for three identifiable aspects of pain and suffering and loss of amenity. First, the events of 25 and 26 September; that is the operation, the preparations for it, the complications which ensued and his subsequent death. Secondly, the medical procedures that preceded that operation after 12 June, in particular the undergoing of an angiogram under local anaesthetic on 28 June which would not have occurred. Thirdly, the awareness of Mr Ewan that he was going to have a surgical procedure possibly under general anaesthetic and the accompanying and understandable anxiety over a period of three months which he (and anyone) must suffer in those circumstances.
It is rightly pointed out on behalf of the defendants first, that the evidence is that Mr Ewan seemed...
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