William Audland QC and Isaac Hogarth of 12KBW achieve online mediated settlement of catastrophic blindness claim secondary to raised intra-cranial pressure

William Audland QC and Isaac Hogarth of 12 King’s Bench Walk, instructed by Stewart Young of Stewarts successfully represented the claimant (“C”) in his claim against Imperial College Healthcare NHS Trust (“D”), achieving a settlement of £4.3 million at a video mediation.

The claim arose from a delay in treating raised intracranial pressure secondary to cerebral venous thrombosis (CVT).

C was a young man in his early thirties. In July 2015, he had been referred to hospital by an optometrist who noted that he was suffering from raised optic discs. He had also suffered from migraine-like symptoms including debilitating headache and blurred vision. 

He was then seen by a consultant ophthalmologist in September 2015, who noted bilateral swollen nerve heads, but no other ongoing symptoms. The ophthalmologist made an ‘urgent’ referral to neuro-ophthalmology at the defendant trust.

In late October 2015, C was ultimately seen by a consultant ophthalmologist employed by D. An examination of the eyes confirmed bilateral papilloedema (optic disc swelling). C was sent for a CT head scan, which came back clear. C’s case was that it was mandatory at this point to perform a CT venogram, and lumbar puncture. Either would have diagnosed raised intracranial pressure, and a CT venogram would have confirmed the presence of CVT. A lumbar puncture would also have relieved the elevated intracranial pressure, and would have prevented his loss of sight.

C was discharged to the care of his GP, who was asked to make a neurology referral. There was also a plan for ophthalmology follow-up in four weeks.

When C returned in November 2015, the notes from his previous attendance had been lost. He was increasingly symptomatic and reported headaches, dizziness and some blurring of vision in the previous week. The ophthalmologist recorded that the optic discs were less swollen and with early “champagne cork” appearance. He made a non-urgent neurology referral, but did not arrange any urgent investigations.

In December 2015, C suffered a catastrophic deterioration. He started to experience headache, followed by light sensitivity, dizziness and vomiting. He subsequently awoke to find he was unable to see properly.

When he was assessed in hospital, an MRI and lumbar puncture were performed, both of which demonstrated significantly raised intracranial pressure. A CT venogram demonstrated CVT.

In January 2016, C had a ventricular peritoneal shunt inserted. Unfortunately, his vision continued to deteriorate. He is severely sight impaired with visual acuity of 6/36 in his right eye, and 6/48 in his left eye, and very narrow tunnel vision in both eyes. It was likely that his vision would continue to deteriorate over the next 10 years. He also suffered from a significant psychiatric injury in the form of a severe major depressive episode.

He would require a significant level of care, aids and equipment and adapted accommodation.

Liability was disputed.

The Mediation

The mediation took place over a period of six hours via Microsoft Teams. The mediator had invited both sides to participate in an initial joint meeting for the purposes of the mediation, and had created multiple channels or rooms that allowed each party to hold confidential talks, and a separate room for joint sessions. Each party’s own virtual ‘conference room’ was locked so that the other side was unable to enter.

The technology allowed a mediation that was very close to ‘the real thing’ and allowed C to attend from home. Even when the Covid-19 crisis is over, it will be worth remembering that some catastrophically injured claimants, particularly those who are very anxious about leaving their homes, may prefer to attend remotely.

Quantum

Although liability was disputed, the key battleground was quantum. The most contentious heads of loss were future care and case management, and accommodation.

Whilst D had accepted a lifelong need for care, there was a dispute over the number of hours and the level of case management required. There was also a dispute about whether C would use an agency carer or would directly employ his own carer.

A periodical payment of £40,000 for care and case management was ultimately agreed. This essentially reflected a directly employed carer at four-and-a-half hours per day, and approximately 50 hours a year of case management.

It was agreed that C required adapted accommodation, and would benefit from the use of assistive technology.

One of the aids that C was most excited about was the Orcam MyEye (https://www.orcam.com/en/myeye2/). This is a small device with a smart camera that attaches to a glasses frame. It helps sight impaired people to understand text, recognise faces and identify objects. 

Settlement

Overall, the claim settled for a lump sum and periodical payments with a total value of approximately £4.3 million.

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