Walters v North Glamorgan NHS Trust
| Jurisdiction | England & Wales |
| Judge | Lord Justice Ward,Lord Justice Clarke,Sir Anthony Evans |
| Judgment Date | 06 December 2002 |
| Neutral Citation | [2002] EWCA Civ 1792 |
| Docket Number | Case No: B3/2002/0745 QBENF |
| Court | Court of Appeal (Civil Division) |
| Date | 06 December 2002 |
[2002] EWCA Civ 1792
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
(Mr Justice Thomas)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Ward
Lord Justice Clarke and
Sir Anthony Evans
Case No: B3/2002/0745 QBENF
Stephen Miller Q.C. and Gregory Chambers (instructed by Welsh Health Legal Services) for the Appellant
Robert Weir (instructed by Hugh James) for the Respondent
This is a very sad case. It is also a difficult one. The issue is whether a mother can recover damages for the pathological grief reaction which it is agreed by the psychiatrists she suffered after waking at her young baby's bedside in hospital at 3 a.m. when the child was having a fit and then, some 36 hours later, having the child die in her arms after life-support treatment was withdrawn. The hospital admitted that the child died as a result of its negligent treatment. On 7 th March Thomas J. held that she was entitled to special damages of £1,216 and general damages of £20,000. He gave the NHS Trust permission to appeal.
The claimant, Ms Ceri Walters, was 31 years old when these events unfolded. She gave birth to her son Elliot on 15 th September 1995. Ten months later he became unwell and was admitted to the Prince Charles Hospital in Merthyr Tydfil. Jaundice was noticed in his eyes and skin and after various tests were carried out, the diagnosis was made that he was most likely suffering from hepatitis A, even though the tests were inconclusive. In fact he was suffering from acute hepatitis which led to fulminant hepatic (liver) failure. It is accepted by the defendants that he was not properly diagnosed or treated by the Prince Charles Hospital. The defendants also accept that if Elliot had been properly diagnosed and treated, he would have undergone a liver transplant and would probably have lived. In the light of that admission it was not necessary at the trial to set out the precise course of treatment. He was kept in hospital whilst various tests were carried out and Ms Walters was able to stay with him. He was allowed home at weekends. On the weekend of 26 th July he was brought back to the hospital by his parents because of their concerns for him. He was a very ill baby. He did not recognise either his mother or his father. He was not drinking. He was irritable and crying.
His condition deteriorated in the early hours of the morning of Tuesday, 30 th July 1996. I can do no better than set out the judge's findings over the critical period:—
"7. The claimant was at that time sleeping in the same room as Elliot at the Prince Charles Hospital. She awoke at about 3 a.m. to hear Elliot making small choking noises in his cot; the claimant saw that there were large amounts of what she described as "a coffee ground blood substance"; his body was stiff. She took Elliot to a nurse. The nurse told the claimant that Elliot was having a fit, though she did not appreciate that the fit had lasted an hour. The hospital notes record Elliot as being in a Grade 3 coma, responding only to deep pain. Elliot was transferred to the Intensive Care Unit of the Prince Charles Hospital at 4.15 a.m. The claimant was told by a doctor at 4.45 a.m. that it was very unlikely, and it would be very unlucky, if Elliot had any serious damage as a result of the fit. After speaking to the doctor she thought that Elliot might at worst be slightly brain damaged; she did not think it was life threatening. In fact Elliot had suffered a major epileptic seizure leading to a coma and irreparable brain damage.
8. At about 11 a.m. that day the claimant was told by a doctor at the Prince Charles Hospital after a CAT scan that there was no damage to Elliot's brain, but that he wanted him transferred to Kings College Hospital, London for a liver transplant. Eventually later that day the ambulance arrived and a medical team took Elliot to London where he was admitted at 6.30 p.m.; a further CAT scan was carried out which showed universal attenuation in both cerebral hemispheres; it was interpreted as showing diffuse brain injury consistent with a profound hypoxic ischaemic insult.
9. The claimant had followed the ambulance in a car with Elliot's father and arrived at Kings College Hospital at about 9 p.m. that evening. She was seen by three doctors. They told her that Elliot had suffered severe brain damage as a result of the fit and he was on a life support machine. They told her that if a liver transplant was undertaken, the chances of survival were only 50–50 and he would be severely handicapped. The claimant described her feelings as being numb, panic stricken and terrified at the sudden turn of events; she had been told at the Prince Charles Hospital that he could have a liver transplant and she had been told then he could not. The consultant paediatric heptologist at Kings College Hospital described her as "stunned".
10. On the following day, Wednesday 31 st July 1996, Elliot underwent a further CAT scan. A consultant neurologist told the claimant that Elliot's brain was damaged so severely that he would not have any sort of life or be able to recognise his parents; he would have no quality of life. This shocked her greatly. They were asked whether or not they felt it was in Elliot's best interests to continue with life support. She discussed this with Elliot's father and they decided that they would terminate the life support. Shortly thereafter, the life support machine was turned off and Elliot died in the claimant's arms at approximately 4.30 p.m. She was told after his death that if Elliot had been transferred for a liver transplant at any time before 30 th July 1996, he would have stood a far better chance of survival."
It is, I think, helpful to expand upon some of those findings in order to give more detail to the claimant's reaction to the unfolding tragedy. In her first witness statement made only some two months after Elliot's death, she was expressing no more than feeling "extremely annoyed at the way Elliot was treated." Her mental breakdown had not yet begun. In her witness statement prepared for the trial she referred to the consultation at 4.45 a.m. on 30 th July when she was told that it would be very unlikely or very unlucky if anything serious were to happen to Elliot. She said:—
"This phrase has stayed in my mind ever since. At the time, his remarks were very encouraging, although he spent only a few moments with me. After speaking with him, I did not think the situation was life threatening in any way. At worst, I thought Elliot might be slightly brain damaged."
Told the next morning that there was no brain damage, she "felt a huge sense of relief". She and her partner were therefore "very positive" as they drove to London but the news imparted to them on arrival that Elliot was severely brain damaged and that he was on a life support machine left her feeling "completely numb":—
"It was such a complete turnaround. When we had stepped out of the car, we had been saying to each other that we would have our work cut out bringing Elliot back and forth to the hospital for treatment and so on and were planning our future. We were not for a second thinking that we would leave without Elliot. I felt panic stricken, numb and terrified all at once. It did not make sense. We had been told at Prince Charles Hospital that Elliot could have a liver transplant and now we were being told that he couldn't. I had the impression that everything had been decided before we arrived and just felt numb."
The consultant paediatric heptologist said at that interview with Ms Walters:—
"When it was explained to Ceri that her son was seriously ill and that he would not be suitable for a liver transplant, Ceri responded as if half in a dream. … Ceri was in a state of emotional shock typical of many parents with children admitted urgently to P.I.C.U. [the Paediatric Intensive Care Unit]."
The next morning Ms Walters met the consultant neurologist to be told how severely damaged her son was:—
"This was a complete shock. I knew that there was a problem with him going for a liver transplant but what she was saying was so final and severe. The whole episode seemed unreal, as though I was watching it on television and it was not happening to me. … I was empty and numb. The situation was unreal. Approximately half an hour after this, Doctor Baker turned off the ventilator and very soon Elliot died in my arms."
The neurologist said:—
"My recall is that they found it particularly devastating because they thought they had been reassured prior to Elliot's transfer that his condition was treatable."
The effect on Ms Walters was devastating. She had regarded herself as an outgoing and happy person before Elliot's death. She had worked as an auxiliary psychiatric nurse for a number of years and had always kept in employment until she became pregnant. She expected to go back to work. After Elliot's death life passed in a void. She was being prescribed tranquillisers. She could not sleep properly. She lost her appetite. She began to drink herself into oblivion. Her relationship with her partner, which had been good, broke down. She had suicidal feelings. She suffered nightmares and hallucinatory experiences. She gave birth to a daughter in November 1999 but that exacerbated her anxiety and she became "worried sick" about her new baby, suffering "flashbacks" of Elliot in hospital on a ventilator.
There was substantial agreement between the psychiatrists to whom a series of question were put as follows:—
" Question 1
Is it...
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