XYZ v Portsmouth NHS Trust
| Jurisdiction | England & Wales |
| Judge | THE HONOURABLE MR. JUSTICE SPENCER |
| Judgment Date | 14 February 2011 |
| Neutral Citation | [2011] EWHC 243 (QB) |
| Docket Number | Case No: HQ08X04967 |
| Court | Queen's Bench Division |
| Date | 14 February 2011 |
[2011] EWHC 243 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Before:The Honourable Mr. Justice Spencer
Case No: HQ08X04967
Ms. E.A. Gumbel QC and Mr. H.J.Witcomb (instructed by Field Fisher Waterhouse) for the Claimant
Ms. M. Bowron QC (instructed by Beachcroft LLP) for the Defendant
Hearing dates: 1 st, 2 nd, 3 rd, 4th, 8th, 9 th and 10 th November 2010
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.
THE HONOURABLE MR. JUSTICE SPENCER:
In this tragic case of clinical negligence I have to decide the outstanding issues of quantum. Liability has been admitted. Although the heads of damage in dispute are few, the sums are potentially enormous. The principal issues relate to the claim for loss of future earnings. They involve an assessment of the claimant's prospects of setting up and developing a highly profitable business and, upon retirement, selling that business. There is also an issue as to future medical expenses.
At the start of the hearing I acceded to an application pursuant to CPR 39.2(4) that the identity of the claimant should not be disclosed in any reporting of the case in order to protect his rights and those of his family under Article 8 ECHR, balancing those rights against the rights of the press under Article 10 ECHR. It has therefore been necessary to anonymise many of the facts of the case which might disclose the claimant's identity, but not (I trust) in such a way as to frustrate the proper reporting of the case. To the various witnesses, companies and businesses referred to in the judgment, coded letters have been assigned in order to preserve the claimant's anonymity. The court is particularly grateful to Mr Witcomb, junior counsel for the claimant, for his assistance and ingenuity in this task.
The background
The claimant was born in 1971, and is now aged 39. His father had for several years been undergoing kidney dialysis treatment and was suffering from renal failure. The claimant was anxious to give his father the opportunity of a better quality of life in his well earned retirement by donating his own right kidney, thus sparing his father further dialysis treatment. The operation was performed on 26 th February 2008. The defendant admits that the operation was performed negligently, and to a degree recklessly. I was told that there are proceedings before the General Medical Council against the surgeon in question.
The consequences of the defendant's negligence have been catastrophic for the claimant and his family: physically, psychologically, emotionally and financially. Although the claimant's right kidney was successfully removed and transplanted, the claimant suffered irreversible failure of the left kidney. In fact he should never have been advised to undergo the operation at all given the grave dangers involved. That negligent advice was compounded by serial mistakes during the operation itself. The claimant's life was saved only after many hours on the operating table during which he received over 100 units of blood and fluid transfusions.
During the course of the operation the claimant suffered further complications which have had far reaching consequences: a minor myocardial infarction; ischaemic damage to the bundle of nerves known as the lumbo-sacral plexus, which supply the right leg and foot; a thrombosis of the inferior vena cava.
The claimant was left in total renal failure. He was in hospital for nearly two months, during which he started to receive haemodialysis. He developed a serious drug induced confusional disorder. There were further re-admissions to hospital in March and April 2008, following which he received dialysis treatment three times a week as an outpatient for a year. This treatment affected him profoundly. He became severely depressed, frequently contemplating suicide. He contracted serious infections, one of which necessitated a further admission to hospital for four days in October 2008.
The claimant's own act of altruism and family devotion in donating a kidney to his father, which cost him so dear, was reciprocated by the claimant's sister. With the same outstanding altruism and family devotion she in turn donated a kidney to the claimant, at very considerable psychological and emotional cost. That operation, performed on 27 th March 2009, was successful. It released the claimant from an indefinite regime of dialysis. However, he lives with the constant fear that his body will reject the kidney and it is common ground that when he reaches his early sixties that kidney will require replacement. This uncertainty, and his experiences generally, have left him with an understandable obsession about his health.
Unfortunately a recurrent infection was imported with his sister's kidney, cytomegalovirus viraemia (CMV). This is a constant source of worry. So is his blood creatinine level which, if raised, can be a sign of kidney rejection.
The renal failure the claimant suffered increases significantly the risk that he will suffer from ischaemic heart disease and a stroke. Consequently he adopts a very careful lifestyle and diet. He has had high blood pressure and high cholesterol levels which cause him constant worry. The immuno-suppressant drugs he takes, in particular to control the CMV, greatly increase the risk of his developing other debilitating and life threatening conditions. The consequence is that he has become fastidious to the point of obsessional about personal and general hygiene, which impacts upon the whole family. He can be irritable and overbearing. He is prone to bouts of weeping.
There are further serious physical consequences. The nerve damage suffered during the negligent operation has resulted in altered sensation below the right knee. There is hyper-sensitivity, pain and loss of sensation in various parts of the right foot, and clawing of the first and second toes. He has had surgery on the first toe. Further surgery had been planned to straighten and fuse the toes but this drastic measure may be avoided by regular injection of botulinum toxin for life. The issue surrounding this problem with his foot has a bearing on his residual earning capacity. Currently he is unable to run, and walking on uneven ground and stairs presents some difficulty.
The claimant has also been much distressed by urinary difficulties. For a time self-catheterisation was attempted. He found it a dreadful experience. Urinary frequency bedevils his daily life, and results in broken nights for him and for his wife.
The medication he takes has had unpleasant side-effects including the profuse growth of unwanted body hair, the development of skin acneiform lesions and the deposit of facial and abdominal fat. His inability to exercise has also led to undesirable weight gain. Prior to the operation, the claimant was a healthy, fit and active 35 year old man. He took great pride in his health and fitness, running several kilometres each morning to set himself up for the working day. He had enormous energy. He was cheerful, optimistic and extrovert.
Now the picture is very different. At the age of 39 his daily life revolves around his health worries. He is constantly fearful of infection or changes which may increase the risk of the kidney being rejected. Any venturing from the strictly enforced hygiene of the home is fraught with anxiety. He lives with the certain knowledge that the kidney will require replacement by the time he reaches the age of 61 and that this will be preceded by symptoms of progressive renal failure. It is agreed that his life expectancy has been reduced by 10 years.
It is evident from him wife's evidence, which I unhesitatingly accept, that the claimant is a shadow of his former self. He is lacking in energy. He is exhausted by 9 pm and generally has to be in bed by 10 pm. He is moody and irritable. Their marriage, though very strong, is constantly under strain. The children have been affected and distressed by their father's condition and behaviour and he has bridges to build there.
The agreed heads of loss
Damages are agreed for the following heads of loss. The figures include, where applicable, interest to the date of trial.
General damages for pain, suffering and loss of amenity are agreed at £168,000.
Damages for past losses are agreed at £287,500. This global figure includes loss of earnings to the date of trial, and a sum in respect of adaptation work at the claimant's home to convert the garage into office accommodation with ensuite lavatory.
Damages for certain heads of future loss are agreed at £432,500. This global sum includes £190,000 for future care. It does not include any sum for future medical expenses as to which there is an issue to which I shall return shortly.
It follows that agreed damages amount to £888,000. Miss Gumbel QC on behalf of the claimant submits that this in itself is an indication of the severity of the consequences of the catastrophe the claimant suffered, which should be borne firmly in mind when considering the claim for future medical expenses on a privately paying basis, and when considering the allowance to be made for residual earning capacity in assessing loss of future earnings.
It has also been agreed that the uncertainties surrounding the claimant's future medical condition are such that an order for provisional damages is appropriate, in the terms of the agreed draft. The draft order recites that payment of damages for the agreed heads of loss (totalling £432,500), and payment of the damages I assess for...
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