XM by his Father and Litigation Friend FM v Leicestershire Partnership NHS Trust
| Jurisdiction | England & Wales |
| Judge | Mr Justice Stewart |
| Judgment Date | 23 November 2020 |
| Neutral Citation | [2020] EWHC 3102 (QB) |
| Date | 23 November 2020 |
| Docket Number | Case No: HQ17C04508 QB/2017/002909 |
| Court | Queen's Bench Division |
[2020] EWHC 3102 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Stewart
Case No: HQ17C04508 QB/2017/002909
Miss Katie Gollop QC (instructed by Express Solicitors Ltd) for the Claimant
Mr James Todd QC (instructed by Weightmans LLP) for the Defendant
Hearing dates: 25 th, 26 th, 27 th, 28 th November 2019. 19 th, 20 th, 21 st, 22 nd and 27 th October 2020; 23 rd November 2020
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
The Claimant was born on 27 th June 2012. The Defendant provided health visitor services in the Loughborough area where the Claimant lived. In its very briefest outline, the Claimant says that he sustained catastrophic permanent brain injury as a result of the Defendant's servants or agents failing to identify and act upon the fact that his head was growing at an abnormally fast rate. The Claimant had a very rare and benign brain tumour, a choroid plexus papilloma, from birth until he was treated in January 2013. The tumour caused overproduction of cerebrospinal fluid (CSF) which accumulated in the ventricles of his brain causing the Claimant's head to grow abnormally fast. Because of elasticity in a baby's skull, the Claimant was able to compensate for the rapid increase in the size of his head. In late December 2012 raised intracranial pressure began to cause symptoms. His parents took him to an emergency walk-in centre on 30 th December 2012. He had massive hydrocephalus. On 3 rd January 2013 CSF was drained and the tumour successfully removed. However, it was too late to prevent injury and he sustained permanent catastrophic brain damage.
The allegations in outline
Whilst the Claimant was in utero his head circumference was recorded on 17 th May 2012 as being below the 5 th centile and on 1 st June 2012 as a little above the 5 th centile (288.6 mm and 312.3 mm respectively). No measurement was taken of the head circumference at birth. The Claimant's weight was recorded at birth as 3.12 kgs, i.e. between 25 th and 50 th centile. On 29 th June 2012, at GP registration and examination, the head circumference and weight were not recorded.
The Claimant's parents were provided with a red book on the Claimant's return home. The red book contains a number of graphs including a graph for a boy's head circumference. It is pre-printed with centile markings.
On 10 th July 2012 (aged 13 days) Mrs Ann Furmage, a health visitor, saw the Claimant at home. She recorded his head circumference as 35.2cms. The Claimant's weight was recorded as 3.14 kgs, which she noted was “good gain, just above birth weight”. The Claimant suggested that his weight was below the 15 th centile 1. According to the graph the Claimant's head circumference was on the 25 th centile.
On 24 th July 2012 the Claimant was seen at home by Sharon Zanotti, now Mrs Makwana. I shall refer to her as Mrs Makwana. Mrs Makwana was a nursery nurse required to perform certain health visitor functions. She did not record the Claimant's head circumference. She recorded his weight as 3.7 kgs and noted “very good gain, up through 25 th centile. 2”
On 8 th August 2012 when the Claimant was exactly 6 weeks old, he was seen again by Mrs Furmage. She measured his head and recorded the measurement as head circumference of 38.3cms. She noted “steady gain”. The head circumference was by now on or just over the 50 th centile. She recorded his weight as 4.24 kgs and again wrote “steady gain”. His weight at this stage was approximately on the same centile as before.
On or about 22 nd August 2012, the Claimant missed his 6–8 week GP appointment.
On 8 th October 2012 Mrs Makwana saw the Claimant at home again. She did not measure his head circumference. His weight was recorded as 5.72 kgs which she noted was “consistent growth, good constant gain”. The weight remained on the same centile as before.
On 15 th October 2012 the Claimant was seen by Sharon Kirkpatrick, a health visitor. This was to perform a Health Visiting Assessment four-month check. The Claimant's head circumference was not measured. His weight was 6 kgs, i.e. on the same centile.
On 13 th November 2012 Jacqueline Hewitt, a nursery nurse, visited the Claimant at home. She did not measure the head circumference. The Claimant's weight was 6.74 kgs. She noted this as “progressive”. The weight was now just below the 25 th centile.
On 11 th December 2012 and 19 th December 2012, the Claimant saw the GP with eczema and a cough on the respective dates. His head circumference and weight were not measured.
On 30 th December 2012 the Claimant went to the emergency walk-in centre. His head circumference was 51cms. The following day he was transferred to Queen's Medical Centre with massive hydrocephalus. His head circumference was 52.2cms, i.e. the 99.6 th centile on 30 th December 2012, with an estimated weight of 7 kgs, i.e. the 25 th centile.
The Claimant underwent an operation on 1 st January 2013 and another on 3 rd January 2013.
The particulars of negligence
The particulars of negligence are set out in paragraph 43 of the Re-Amended Particulars of Claim (RAPC) 3. In summary they are:
i) On 8 th August 2012 Mrs Furmage failed to detect, identify or heed the fact that the head circumference had crossed a centile line and had increased from being on the 25 th centile to being over the 50 th centile. She wrongly concluded that the rate of head growth was “steady gain”; she failed to note the discrepancy
between the weight gain which was below the 15 th centile and correctly described as “steady”, and the increase in the head circumference which was on or just over the 50 th centile. It is said that Mrs Furmage should have either:a) referred the Claimant to a GP or Paediatrician (depending on local referral pathways) for assessment of the abnormal rate of head growth and exclusion of any potential damaging cause such as hydrocephalus; or
b) monitored the pattern and rate of growth of the head circumference and arranged for a further measurement to be obtained one or two weeks later.
Further it is said that she failed to mention the contrast between the steady weight and the increase in head circumference to the Claimant's parents, and to tell them that this needed to be monitored; she failed to make a note in the hand written and computer records on the Claimant, and also failed to contact the GP to ask him to monitor the Claimant when he was next seen.
ii) From the age of 8 weeks and particularly on 8 th October 2012, 16 th October 2012 and 13 th November 2012, the health professionals did not (a) identify the fact that the Claimant had not seen a GP for the GP part of the 6–8 week check, and (b) rectify that omission by arranging for him to see his GP, or advising his parents that he needed to be seen by the GP. Further, they should have arranged for the Claimant to see his GP because of the increase in his head circumference between 10 th July 2012 and 8 th August 2012, and the disparity between the rate of increase in head circumference and the rate of increase in weight.
iii) The Defendant's servants or agents failed to refer the Claimant to hospital at any time between 8 th August 2012 and 30 th December 2012.
After 4 days of hearing in November 2019, the trial adjourned part heard after the court had heard from the Claimant's parents and the 4 members of the Defendant's staff referred to above. The main reason for the adjournment was so that the Claimant could re-amend the Particulars of Claim according to paragraph 2 of the Order sealed on 2 December 2019 which recorded: “The Claimant do be permitted to amend to plead an allegation in relation to negligent failure to observe a disproportionately large head on or after 8 October 2012 4. The amendment alleged the following head circumferences:
• 8 th October 2012 – Between centiles 98 and 99.6
• 15 th October 2012 5 – Centile 99.6
• 13 th November 2012 – Very significantly over centile 99.6
The Claimant alleged that the Defendant failed, on visual examination of him particularly when unclothed, to identify that he had an unusually large head and/or that his head and body were not in proportion. The way the matter arose at a very late stage
The Defendant's pleaded response in the Re-Amended Defence (RAD) was that it did not accept these figures, that the head circumference at these dates is unknown and that there is a range of possibilities, supported by the Defendant's neurological expert, including that the head circumference was below the 91 st centile on the first two dates and below the 99.6 th centile on 13 November 2012.
The re-amendments therefore require the court to determine further issues, as detailed later in this judgment.
The Defendant admitted 6 that had the Claimant's head circumference been measured again at a time several weeks after 8 August 2012, it would have been seen to have crossed two centile lines and the Claimant's hydrocephalus would have been diagnosed and successfully treated.
Witnesses
The non-expert witnesses from whom I heard were:
i) FM, the Claimant's father. His witness statement is dated 11 th February 2019.
ii) MM, the Claimant's mother. Her witness statement is dated...
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