AB v Salisbury NHS Foundation Trust: settlement approved in short life expectancy clinical negligence claim

William Audland QC and Isaac Hogarth of 12 King’s Bench Walk, instructed by Victoria Williams of Stewarts successfully represented the claimant (“C”), a protected party, in her claim against Salisbury NHS Foundation Trust (“D”). A compromise was reached on the basis of an offer made at a video Joint Settlement Meeting (JSM) which was subsequently approved by Master Sullivan.

The claim arose from catastrophic injuries, including a severe hypoxic brain injury, sustained when C suffered a significant bleed during laparoscopic surgery to repair a right groin hernia in December 2017.

This article will summarise the facts, and then shortly discuss three interesting aspects of the case:

  1. The liability issue: the question of whether a Day Surgery Unit (DSU) ill-equipped to deal with a vascular injury, and not properly supported by the main surgical unit was an unsafe system, and the applicability of Bull v Devon AHA [1989] 2 WLUK 14 (CA).
  2. The quantum issue: C was aged 73 at the time of approval and is agreed to have a short life expectancy. As such, her situation is not covered by the judgment in Swift v Carpenter [2020] EWCA Civ 1295.
  3. The Court of Protection issue: an application had been made to empower the deputy to purchase a property for C, which had to be urgently expedited following approval.

The facts

C attended D’s hospital in December 2017 for a right groin hernia operation.

The operation was to take place at the Day Surgery Unit (DSU), which was in a separate building to the hospital’s main operating theatre, and separated by a significant distance.

The surgery began with an attempt at open umbilical port insertion, but small bowel adhesions were encountered and so the surgeon changed the approach to an optiport insertion in the left upper quadrant. Shortly thereafter, the anaesthetist noted that the carbon dioxide trace was falling and blood pressure was low. He suspected internal bleeding, and later stated he had been concerned C might bleed to death without an urgent laparotomy.

The surgeon converted to a laparotomy. Packs were inserted to attempt to control the bleeding, but the source could not be found. The on-call team was called to assist, but there was a delay before their arrival. This was due in large part to the fact that the DSU where the operation was taking place was geographically remote from the main operating theatre.

A member of the on-call surgical team took over. He noted a gradually expanding retroperitoneal haematoma. It was not until some 70 to 80 minutes after the bleed had been identified that the aortic infra-renal clamp was applied, which gave some control to the bleeding. The haematoma then ruptured, and it became clear that the bleed originated in the left common iliac artery. The artery was clamped, and the hole repaired.

The estimated blood loss was 2,900 ml (by swabs) and 1,300 ml (by suction).

C was transferred to the Intensive Therapy Unit (ITU). She had suffered a severe hypoxic brain injury as well as hepatic and renal ischaemic injury, and respiratory cardiac dysfunction. She remained unresponsive for several weeks.

She underwent percutaneous tracheostomy.

Approximately three weeks after the operation, C began opening her eyes in response to her name, and appearing to nod in agreement.

There was some gradual improvement, and after a further month she was transferred for neurorehabilitation.

As a result of the bleed, she suffered permanent severe cognitive impairment (in particular with memory, attention and orientation), secondary dementia, neuro-behavioural impairments (including hallucinations, outbursts of aggression and agitation, and emotional lability).

Further, she suffered cortical blindness and was registered blind. She is wheelchair dependant and can only walk short distances indoors, holding on for support. She has complex 24/7 care needs and cannot be left alone.

The liability issue

C’s case on liability was advanced on two bases:

Firstly, that the optiport was negligently inserted, leading to damage to the left common iliac artery.

Secondly, that there was an unsafe system in having a DSU which was (a) remote from the main surgical team, (b) not equipped to deal with a vascular emergency, which although rare, was foreseeable.

D admitted negligent insertion (giving a complete case on breach and causation), but denied the secondary case in relation to the unsafe system.

The leading case on unsafe systems is Bull v Devon AHA. That case arose from an injury at birth sustained by one of two uniovular twins. The claimant’s mother had gone into early labour. The defendant’s hospital operated on a split site, with the two sites about a mile apart. As a result, there was a delay in the second twin being born of 68 minutes, following the birth of the first. This was due to difficulty in tracing a suitably qualified obstetrician to assist with the complex delivery, with all obstetricians of a sufficiently senior level being at the other site.

The Court of Appeal judgments provided as follows:

  • In cases where multiple births were involved, the system in operation at the hospital [at the relevant time] was obviously operating on a knife edge. It had to be operated with maximum efficiency. Otherwise, mother and child would be at obvious risk.” (36G-37A).
  • The risks of failing to provide attendance for the patient’s foreseeable requirements was so great that the system could only rank as an acceptable system if it was operated with supreme efficiency” (56F).
  • “[O]ne would expect… that proper care of the mother and the second twin would demand either the presence or the immediate availability, at all times after the birth of the first twin, of someone with skill, experience and authority sufficient to bring about the delivery of the second twin, if symptoms of crisis showed that it was unsafe to wait for the delivery to take place naturally.” (67A-C).
  • Either there was a failure in the operation of the system, or it was too sensitive to hitches which fell short of the kind of major breakdown against which no system could be invulnerable.” (70D)

Both the facts and the ratio of Bull were closely analogous to this case.

Whilst the point was not run (D having admitted liability in respect of an alternative breach), it is suggested that there is a good basis for alleging negligence where a rare but serious and life-threatening complication occurs where a claimant is being treated in a DSU which is ill-equipped to respond to such a complication, and where the system fails to enable the immediate attendance of a fully equipped and experienced surgical team.

The counter-argument that this is a common arrangement in place all over the country (which was also run in Bull) at first blush appears to cause problems in establishing breach of duty under Bolam.

However, there is a question of whether such an arrangement is logical in view of the need to provide a reasonable level of care to surgical patients. Further, it is not suggested that DSUs are inherently unsafe (anymore than it was inherently unsafe for the defendant’s hospital in Bull to operate over two sites). However, what is surely obvious, is that a DSU which is operating independently of a main theatre must be properly equipped to deal with foreseeable surgical emergencies and to be in a position to summon urgent assistance from the main theatre if necessary to prevent serious harm.

The quantum issue

Due to the nature of her injuries, C’s claim included damages for adapted accommodation with room for carers, as well as family.

On C’s expert evidence, residual life expectancy from the date of trial (due to take place in March 2022) was 5.2 years,

On D’s expert evidence, C’s residual life expectancy from trial was only 3.8 years.

As such, this case fell squarely outside the scope of the Court of Appeal’s judgment in Swift v Carpenter.

Within his judgment Underhill LJ explicitly states that the discount rate of 5% only applied in cases “where the claimant has a long life expectancy”, and that “[t]he position will be different in short life expectancy cases” and that such cases “may require a different approach” (228).

The parties’ experts reported that the purchase price would be £550,00 to £600,000.

There would be further costs of adaption at of around £400,000, plus equipment and furnishings and relocation costs.

D’s primary case at JSM was that C ought to secure a rental property instead of purchasing her own property. C’s team considered this approach to be totally unrealistic, given the difficulty in finding suitable adaptable rental properties, and particularly, the absence of security of tenure for an elderly and very disabled claimant.

C’s position was that this was a very strong case to justify an award of full capital value, as any less would leave C under-compensated and unable to purchase and adapt a suitable property.

A compromise was ultimately reached which reflected the parties’ mutual appetite for settlement, but at a figure considerably closer to C’s position. The shortfall was offset by the award of general damages.

Unfortunately, given that it is claimants with short life expectancy who are most under pressure to have their claims resolved quickly, it will be challenging to find a claimant willing to risk not receiving their compensation within their lifetime due to the need for a first instance decision and then possibly two appeals.

Ultimately, in this case, C managed to obtain a sizeable interim payment during the course of the litigation which funded her care, and was also intended to pay for the deposit on a property (although a suitable property could not be found at that time). D was initially reluctant to release a significant interim payment to enable the purchase of a property, and C’s team had to work hard to secure D’s agreement. Fortunately, the challenge was overcome, partly due to the understanding and collaborative approach D ultimately adopted, and an interim payment was agreed.

It is hoped that insurers, including NHS Resolution will continue to engage with sensible arguments about full compensation for claimants with short life expectancy in appropriate cases.

The Court of Protection issue

Although strictly outside the civil proceedings, an issue arose which may be of general interest.

Almost precisely at the date of approval, a suitable property was found (after a very long and difficult search). Many months previously, an application had been made to the Court of Protection (‘COP’) for an order empowering the deputy to purchase a property for C’s benefit. Unfortunately, the application had not been dealt with, such that C’s family were worried that the property would not be secured.

An urgent request, supported by a note in support by Leading Counsel, was made to the COP to expedite the application, and fortunately, within several weeks, the order was made.

It is now hoped that C will be able to purchase and adapt her perfect home, in a safe environment where her care needs may be properly addressed.

The approved settlement

The claim was settled for a lump sum of £1.85 million and periodical payments of £319,500 per annum.

The settlement was approved by Master Sullivan on 7 June 2021.

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