The 13-year-old Claimant in the case had been unwell with a viral illness at 17 months of age. He was seen in the A&E Department of Alder Hey Children’s Hospital having suffered a seizure and suffered a further seizure whilst he was there. He was sent home and returned to hospital a few days later. Despite this he was not diagnosed with the viral illness until some 5 days after he had first attended.

As a result of the delay in diagnosing his condition, the Defendant suffered catastrophic brain injuries which caused profound impairments and intractable epilepsy. This meant that he had very significant care needs and would need 24 hour a day care, a specially modified home and equipment, and specialist medical therapies for life.

Liability was admitted by the Defendant, with only one point remain in dispute between the parties namely whether or not the boy would have had some mild cognitive difficulties and epilepsy in any event.

The case settled and the award approved by the Court was worth in the region of £27.3 million. The award included a lump sum plus periodical payments throughout his life.

As the Claimant is aged under 18, the settlement in his claim had to be approved by the Court. You can find the details of the Court’s approval  of the settlement here: EXN-v-Alder-Hey-111121.pdf (judiciary.uk)

Chris Malone and the Powell & Co team have considerable experience and expertise in brain injury claims including but not limited to those relating to:

• brain injuries at birth leading to cerebral palsy
• delay in diagnosis of meningitis
• delay in diagnosis of brain tumours
• substandard medical treatment
• traumatic brain injuries

Legal aid may be available for claims involving babies brain injured before or during birth or in the first 8 weeks of life. In cases in which legal aid is not available, if we are able to assist, we usually offer a Conditional Fee Agreement (no win, no fee).

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An inquest into Ben’s death was held in 2016 at which the coroner was told by doctors from the Trust that the bacterial infection and the treatment of it was not connected to Ben’s death. The coroner gave a narrative verdict recording the factual circumstances of the death.

Ben’s parents complained to University Hospitals Bristol NHS Foundation Trust about aspects of the care Ben received and in 2017 the Trust apologised for making mistakes. His parents remained unhappy with the Trust’s response and escalated matters, complaining to the Parliamentary and Health Service Ombudsman about the care Ben received.

The Ombudsman investigated and last week published its report into the complaint. It found that the Trust did not recognise how poorly Ben was early enough and “did not provide him with the treatment he needed as promptly as they should have done”. It found that Ben and his family suffered serious injustice as a consequence of the failings in Ben’s care and treatment. It described these failings as lost opportunities “to intervene and give Ben the best possible chance of recovering from his illness”, observing that “Each one of the failings would have reduced the chances of the best possible outcome for Ben.”

Commenting on the investigation, Ombudsman Rob Behrens stated:

“Our investigation found a catalogue of failings in the Trust’s treatment of Ben Condon, which meant several missed opportunities to give him the best possible chance of recovering from his illness. Mr and Mrs Condon now have to live with the knowledge that Ben’s care was sub-standard and that each failing reduced his chances of recovery. We also found failings in the way the Trust communicated with Mr and Mrs Condon, exacerbating a highly distressing situation over an extended period of time. This is every parent’s worst nightmare and they deserved better from those they trusted with their child.

The injustice of never knowing whether things might have been different is something they will have to live with forever.”

You can read the full report of the Ombudsman here:
Ombudsman comments on investigation into the death of Ben Condon | Parliamentary and Health Service Ombudsman (PHSO)

According to a report in The Guardian, following the Ombudsman’s findings, Ben’s parents are seeking to have the high court annul the inquest into Ben’s death.

This very sad case raises important legal issues. In particular, the duty of candour.  Doctors have long had an ethical and professional responsibility to advise patients to be open and honest about mistakes made in their treatment. There has also, since November 2014, been a legal duty of candour requiring NHS Trusts to advise patients of mistakes leading them to suffer harm.

Although the duty of candour is now a legal one, in our experience the duty of candour is, sadly, not always exercised as it should be.

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If there has been a missed diagnosis or a delay in receiving appropriate treatment or complications caused by errors in diagnosis and/or treatment, you may be entitled to a claim for compensation.

At Powell & Co, we have a skilled team of specialist clinical negligence solicitors, one of whom is also in medical practice, experienced in assisting people who have suffered harm and/or have been bereaved because of a failure to diagnose and treat their or their loved one’s heart condition/heart attack quickly and correctly

What is a myocardial infarction (heart attack)?
The word myocardium means the heart muscle and the word infarction means injury or damage to heart muscle because of a sudden blockage of blood flow to the heart, usually by a blood clot formed after a cholesterol plaque rupture exposing the blood vessel wall and causes a clot to form at the site of the rupture.

What are the symptoms of heart attack?
The most common symptoms of heart attack are:

• chest pain or discomfort which comes on suddenly and may feel like heaviness or pressure in the chest or squeezing or tightness across the front of the chest
• pain occurring or spreading from the chest to your neck, jaw, shoulder blade or arm
• tingling or numbness in the hands
• shortness of breath or difficulty catching your breath
• feeling extremely fatigued
• heartburn and/or nausea
• vomiting
• feeling sweaty and clammy
• palpitations or awareness of your heart beating fast
• light-headedness or dizziness

You may not have chest pain but might have some of the symptoms listed above, particularly if you are over the age of 60 or are a diabetic.

You might not experience all the symptoms listed here but the more symptoms you have, the more likely it is you are having a heart attack.

What are the signs of heart attack?
As well as experiencing some of the symptoms listed above, a family member or friend might notice you look pale.

What to do if you or someone else is having symptoms of heart attack?
If you experience these symptoms and think you are having a heart attack, you must call dial 999 and you will be taken to the nearest Accident and Emergency Department for timely confirmation of the diagnosis and treatment.

Diagnosis
To determine if you are having a heart attack the doctor will ask you if you are experiencing any of the symptoms listed above. The doctor will ask a nurse to put you on a monitor to check your vital signs like your blood pressure and heart rate. The doctor will request some investigations, like the tracing of your heartbeat (an ECG), chest x-ray and blood tests.

Risk factors associated with heart attack
Some conditions make it more likely to be a heart attack when you have chest pain or any of the symptoms above. These include:

• age above 35
• smoking or being constantly exposed to cigarette or tobacco smoke
• high blood pressure
• diabetes
• high cholesterol
• obesity
• a family history of heart attack
• use of cocaine and/or other illicit drugs.

Treatment
The treatment of your heart attack will involve giving you some medications to relieve your pain, and thin your blood a bit and prevent more clots from forming. You may need to have clot busting medication or be taken to a catheter lab where the clot can be removed and a stent inserted into your blood vessels.

In what circumstances might negligence occur?
Examples include:

• If you request an ambulance through 999 and the ambulance fails to arrive and take you to hospital in a timely manner causing your assessment and treatment to be delayed.
• If there is a delay in triaging and assessing you in a timely manner when you arrive in A&E.
• If a nurse in A&E fails to monitor you or carry out and record you vital signs.
• If the doctor fails to interpret your ECG or blood test results correctly.
• If the doctor fails to make the correct diagnosis of heart attack and begin treatment urgently.
• If the doctor gives you the wrong investigation or treatment.
• If there is a delay of more than 90mins from the time you arrive at the doors of the hospital to receiving your stent treatment (known as primary percutaneous coronary intervention or PCI).
• If a GP fails to make an appropriate referral following a history of chest pain whilst exercising.

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What is a Testicular Torsion?
The testes lie in the scrotum. The spermatic cord is a flexible tube that connects the testes with the abdomen. The testes can move around in the scrotum but not usually enough to twist round fully. However, in some circumstances, the testes can move around more than normal and when this occurs the affected testis can twist and rotate trapping the spermatic cord. This is called testicular torsion. Torsion causes the blood supply to the affected testis to be cut off and unless this is restored quickly through timely medical treatment, permanent damage can occur, leading to the loss a testicle.

What are the symptoms of Testicular Torsion?
The most common symptom is severe and persistent pain in the testicle or lower abdomen. Sometimes torsion can also cause symptoms of nausea or vomiting. Any pain in the testicle or lower abdomen should be considered a potential medical emergency and it is essential to attend the nearest Accident & Emergency Department as soon as possible to be examined and, if appropriate undergo treatment.

Diagnosis and management
In considering a diagnosis of testicular torsion a doctor will ask about the patient’s sexual history and whether there is any history of trauma. Testicular torsion is more common in younger people and so when anyone under the age of 30 presents with testicular and/or lower abdominal pain, there is a high index of suspicion that they may have a testicular torsion.

The doctor will then perform an examination of the testicle to check for swelling, the position of the testicle, tenderness and size. Testicular torsion is a medical emergency and if testicular torsion is suspected, then an emergency operation is performed to untwist the affected testis from the spermatic cord to restore blood flow. The testis is usually fixed in place internally during the operation to prevent the torsion occurring again. If the surgery takes place within 6 hours of the onset of pain, then it is likely the testicle can be saved. The chance of saving the testicle diminishes over time and while it is possible for the testicle to be saved after 48 hours from onset of pain, the chance of this occurring is very small.

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In the context of medical treatment, the general rule is that clinicians are not permitted to give treatment to a patient, unless that patient has ‘consented’ to receive the treatment and has the capacity to give consent. Giving treatment without consent is at best negligent and in some cases, a criminal offence. There are a few exceptions to the rule, for example:

• If emergency life-saving treatment is required and consent cannot be obtained beforehand
• If the patient requires treatment of an infectious disease that has wider public health implications
• If the patient lacks mental capacity to understand information regarding their treatment and to make a decision about their treatment, in which case clinicians may adopt a best interests approach

The general principle that treatment should not be given unless you have consented to it stands in the overwhelming majority of cases.

Implied Consent
In some circumstances, a patient’s consent to treatment may be implied. For example, if you attend for a blood test and hold out your arm for the test to be done, it will be assumed that in doing so, you are consenting to the test being carried out. In other circumstances, for example knee replacement surgery, implied consent would be insufficient and explicit consent must be given.

Informed Consent
Consenting to treatment isn’t just a question of agreeing to treatment – you must give your ‘informed consent’.

In 2015, the Supreme court heard the case of Montgomery v Lanarkshire Health Board and ruled that patients must be told about the various treatment options reasonably available to them, and the risks and benefits of each of those treatment. If one of the reasonable options is ‘no treatment’, then this and the risks and benefits of no treatment must also be explained.

The clinician treating you doesn’t have to tell you about all the potential risks of the treatment in question but they do have a duty to take reasonable care to duty to make you aware of the ‘material’ risks associated with the recommended treatment and other treatment options available to you. The Supreme court said that this means that the doctor or clinician should consider what significance a reasonable person in the patient’s position would attach to the risk or risks in question.

Importantly, patients should be given adequate time to consider the information they are given and decide how they would like to proceed. In relation to pre-scheduled operations, it is not good practice for clinicians to provide advice regarding the operation and alternative treatment options at the last possible minute. The consent process should be started well in advance of the proposed operation and the patient should have the opportunity to ask any questions before they are asked to confirm their consent. The patient may not be asked to sign a consent form until the day of their operation but providing they have had the opportunity to speak to a clinician at an earlier appointment at which they were provided with all the appropriate information and had the opportunity to consider this prior to the operation, then signing the consent form on the day of surgery is acceptable.

If the patient has not been given all of the relevant information regarding the reasonable treatment options and the risks and benefits of those treatment options, then the consenting process is flawed and any consent given will not be informed. In the eyes of the law any consent purportedly given would be invalid and the treatment will have been given without consent.

Treating a patient without first obtaining their consent can amount to the criminal offence of battery in certain circumstances but in most cases, it is more likely to be a civil (not criminal) legal matter. For the purposes of a negligence claim against a doctor or NHS Trust it is not enough to show that you did not give informed consent to treatment. You must also prove that it is more likely than not that:

Consent claims can be very challenging. Sometimes it can be straightforward to prove that informed consent was not given but tricky to prove that consent would not have been given even if the appropriate advice had been given. Most frequently allegations of a failure to obtained informed consent arise alongside other allegations of negligence, for example the substandard technical performance of an operation, but sometimes, the failure to obtain informed consent is the central issue in a claim.

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Clinical Negligence and Personal Injury
The general rule is that you have have 3 years from the date on which you sustained an injury attributable to negligence to issue court proceedings. However, sometimes you may not be aware that your injury is attributable to negligence until a later date. In these circumstances, you will have 3 years from your ‘date of knowledge’ in which to issue court proceedings.

Claims made after the relevant 3-year period has passed are, in most cases, likely to fail on the basis that court proceedings should have been issued before the 3-year deadline. However, section 33 of the Limitation Act 1980 does give the Court discretion to allow claims to go ahead in limited circumstances.  When considering whether to exercise its discretion the Court will look at a number of different factors including the length of the delay and the reasons for it.

We would always recommend instructing a solicitor at the earliest possible opportunity so as to ensure that there is plenty of time for the solicitor to investigate the claim and secure the evidence required to prove the claim.  Sometimes this is not possible and so solicitors can try to negotiate an extension of the 3-year limitation period with the Defendant(s), if they are willing, in advance of the deadline expiring.

Exceptions to the Rule
Whilst the general rule of thumb is that claims must be brought within 3 years of the date of injury or the date of knowledge, there are exceptions to this rule. These are:

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The allegations against the Trust are reported to include the avoidable death of a baby shortly after birth, following a traumatic delivery during which his throat was cut accidentally. In another case it is reported that an infant was sent home despite his mother reporting concerns that he had not cried or fed since birth. Sadly, he later died.

It is understood that since 2010, 201 claims have been brought against Nottingham University Hospitals NHS Trust and that 84 of these cases have concluded with a total of £79.3m being paid in compensation. It is understood that this figure only takes into account lump sum payments paid to Claimants and not any periodical payments or provisional damages that they may be paid in the future.

The Independent reports that the claims since 2010, include:

• 15 deaths
• 19 stillbirths
• 46 cases of brain damage and 18 cases of cerebral palsy

In terms of the mechanism of injury, it is reported that 25 cases were the result of delays in treatment, 15 the result of a failure to respond to an abnormal foetal heart rate and 13 related to a failure to recognise complications. In addition to this. it is understood that there were a dozen instances of delayed diagnosis of conditions or failing to diagnose such conditions at all, 10 cases of inadequate nursing care and 16 cases in which women were not adequately monitored during the second stage of labour.

It is reported that since 2010 more women had a spontaneous or natural birth compared with the average across other Trusts. This implies that statistically fewer women were induced or underwent Caesarean section, both of which are often offered to women when particular risk factors are identified and/or complications are identified.

Shockingly, the Independent suggests that it was noted during an investigation into the poor maternity care services in Nottingham that some “…key medical records were missing or never made, while others were completely inaccurate. The NHS trust failed to properly investigate some deaths for months and, in instances when it did, details were wrong or reviews were watered down by senior management to lessen the criticism”.

One mother, who lost her son shortly after delivery told the Independent “They [Nottingham University Hospitals NHS Trust] don’t listen to families. It’s ignorance. If they don’t learn from it, it’s going to be a repeat cycle over and over and over again.”

Making a legal claim can make a positive difference when there has been medical negligence. It appears that the serious issues in maternity services at Nottingham were being brushed under the carpet by senior managers at the Trust, however, the statistics collated regarding claims brought against the Trust in respect of the poor maternity care led to the wider systemic problems being identified and addressed.

No claim for damages is ever going to make everything OK following a tragic death or serious injury. Compensation can help to provide a financial buffer for parents as they grieve for their loss or to cover the cost of the care and support that a brain injured child will need for the remained of their life. Importantly, bringing a claim can also help to hold Trusts, like Nottingham University Hospitals NHS Trust, to account and lead to improvements in the standard of care for future patients.

You can read more about the Nottingham scandal here: Nottingham maternity: Dozens of baby deaths after errors at one of UK’s largest hospitals | The Independent.

Our team has extensive expertise and experience in complex negligence claims concerning substandard maternity care leading to stillbirth and brain injury. If you would like to speak to a member of our team regarding a similar issue, please telephone 0208 854 9131. Whilst our offices are in South East London, we are able to act for clients across England and Wales and are always willing to travel to see clients at their home if required.

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