LP v Wye Valley NHS Trust, Court of Appeal - Queen's Bench Division, November 22, 2018, [2018] EWHC 3039 (QB)

Resolution Date:November 22, 2018
Issuing Organization:Queen's Bench Division
Actores:LP v Wye Valley NHS Trust
 
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Case No: C90BM332

Neutral Citation Number: [2018] EWHC 3039 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Birmingham Civil Justice Centre

33 Bull Street, Birmingham B4 6DS

Date: 22nd November 2018

Before :

HIS HONOUR JUDGE MCKENNA

(sitting as a Deputy High Court Judge)

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Between:

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Mr Weitzman QC counsel (instructed by Irwin Mitchell LLP) for the Claimant

Mr Found counsel (instructed by DAC Beachcroft LLP) for the Defendant

Hearing date: 24th October 2018

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JUDGMENT

HHJ McKenna :

Introduction

  1. This is an application by the Claimant LP acting by her litigation friend and husband, MP for an interim payment on an account of damages in the sum of £400,000, the purpose of which is to fund future care and more particularly to enable the purchase and adaptation of a suitable single storey property. The Claimant's present home is a two storey ex-council mid terrace house with a bathroom on the first floor and is unsuitable.

  2. The cost of this alternative accommodation is identified in the report of Thomas Andrew Skerratt, the Claimant's accommodation expert, as follows:

  3. The Defendant has previously made a voluntary interim payment of £100,000 and is prepared to make a further voluntary payment of £100,000 but resists the Claimant's application for £400,000.

    Background

  4. The Claimant is 69 years old. She suffered from undetected atrial fibrillation, that is to say an irregular heartbeat, which causes thrombus to form in the left ventricle. These thrombi can then embolise, entering the arterial blood system and, on occasion, passing up to the aorta to the arteries that supply the brain blocking the blood flow and causing a cardioembolic stroke.

  5. In May 2011 the Claimant suffered a stroke which caused damage to her right parietal lobe. This caused some left hemiparesis although the Claimant made a good recovery so that by the summer of 2013, she only had some very minor residual weakness in her left limbs and was able to engage in all the activities of daily living and to socialise independently and indeed, in the summer of 2013, she was fit enough to go on holiday to Vermont in the United States of America with her husband.

  6. In August 2013 the Claimant suffered a further significant stroke; this caused acute aphasia and affected her executive skills so that she was much less able to plan tasks or remember what was required of her. These cognitive impairments had a significant impact upon her ability to perform the activities of daily living.

  7. In December 2013 the Claimant suffered a further severe stroke. This caused a new left cerebellar infarct and ischaemia to both occipital lobes resulting in problems with cognition, behaviour and emotional regulation, balance and fatigue.

  8. Following discharge, the Claimant, was even less able to care for herself and had become very dependent upon her husband.

  9. The combined effect of the August and December 2013 strokes is that the Claimant lacks capacity and is both a protected party and a protected beneficiary.

  10. The Claimant had been treated at the Defendant's hospital following each of her strokes. Investigations to identify atrial fibrillation were not undertaken until after the December 2013 stroke when the condition was diagnosed and an anticoagulant prescribed to prevent any further cardiac thrombosis and cardioembolic strokes.

  11. In 2013 the Claimant also developed a lump in her left breast. This was malignant. It was identified in a CT scan undertaken while she was on holiday in the United States. The scan was passed to the Claimant's GP who referred her to the Defendant but unfortunately the Defendant did not diagnose breast cancer until June 2014. The Claimant then underwent a mastectomy with chemotherapy. In November 2014 whilst undergoing and, the Claimant asserts, as a result of her chemotherapy, the Claimant suffered a yet further stroke. This further stroke made little, if any, appreciable difference to the level of her disabilities or to her care needs.

  12. Following the August 2013 stroke, the Claimant's husband gave up his work as a college lecturer to look after the Claimant and has, ever since, continued to provide care and, as a result, has not been able to return to work.

  13. Currently the Claimant requires almost round the clock care from her husband. Fatigue and problems with balance mean that she requires assistance with mobility and many of the physical aspects of daily living. The effect of these physical deficits is compounded by her cognitive impairments. She has significant difficulties with memory, attention, praxis and language. She also suffers from emotional and behavioural changes that make her anxious and irritable. Her dependence on her husband therefore, is physical, cognitive and emotional and she is resistant to receiving care from anyone but her husband.

  14. The Claimant has a reduced life expectancy. Dr Bamford, the Claimant's neurological expert, estimates that the pre-existing health problems combined with her neurological deficits mean that her life expectancy is reduced from 18 to 11 years. In January 2018, the Claimant's oncologist, Dr Price, estimated a life expectancy of 3 to 6 years and a 50% chance of survival past 5 years and a 15.5% chance past 10 years although this will improve the longer the Claimant avoids a reoccurrence of her cancer. There has been no relapse to date.

    The Claim

  15. The Claimant's letter of claim alleges a failure to identify and treat her atrial fibrillation, the earlier diagnosis of which would have...

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