The Government has announced a change to the “discount rate” for clinical negligence claimants
Better news than expected for clinical negligence claimants following the government’s review of the discount rate to -0.25%, but continued frustration over accommodation claims.
The government has announced a change to the “discount rate” (the expected rate of return on investments) which is applied to claims for future losses. Having been changed from a longstanding positive figure of 2.5% to a negative -0.75% in February 2017, a change back to a positive figure had been widely expected across the profession.
Whilst the change will mean a modest reduction in the value of claims for future losses such as care, loss of earnings, accommodation adaptation costs, future treatment costs etc, maintaining a negative rate means that these claims will not be impacted as much as a return to a positive rate would have required.
The down-side for some claimants is that claims for the cost of purchase of specially adapted accommodation (often necessary, particularly in the highest value claims) will continue to be difficult as these claims are calculated in accordance with the 1989 Court of Appeal decision in Roberts v Johnstone, which takes account of the discount rate, and for as long as this remains negative, the Roberts v Johnstone calculation inevitably leads to a nil award.
This cannot be right, but to date, the courts are following precedent and making no award for accommodation purchase costs at trial. In some cases, the discount rate of -0.75% meant that there was sufficient provision elsewhere which could be utilised for purchase costs, but this was certainly not the case in all claims. A number of alternative methods of calculating purchase costs have been submitted in cases and usually, where a settlement has been negotiated, a significant allowance has been made by Defendants.
Trial judges, however, have considered themselves to be bound by the Roberts v Johnstone calculation, but those dealing with such claims are now waiting for the Court of Appeal to review the position and clarify how such claims are to be dealt with in the future – their hearing of the appeal in the case of Swift v Carpenter is expected this month.
Those in need of specialist accommodation, and their advisors, hope that the Court of Appeal will conclude that it can only be right that a claimant who needs rehousing due to negligence can recover the cost of purchasing appropriate accommodation as part of their claim.
Moore Blatch advise a number of clients who need specialist accommodation due to the extent of their injuries.
Our client, JN, was 52 years old when she presented to hospital with headache, vomiting, generalised abdominal pain and diarrhoea. Members of her family remember that she was also confused and that this was reported to the clinical staff. JN’s condition deteriorated and two days later a suspected diagnosis of HSE was reached. Treatment with acyclovir was commenced a day later.
Two months later our client was discharged to a rehabilitation centre for neurorehabilitation and, following this, she was discharged home to her family. She has continued to suffer with concentration and memory impairment, fatigue, personality change and irritability. She had been a demonstrator for professional goods and had been looking after her grandchildren but is now dependent on care and support provided by her family.
Solicitors were instructed and following review by independent medical experts, the Claimant’s case was that HSE should have been suspected on admission to hospital and treatment with acyclovir started the same day. This would have resulted in JN making a good recovery in a shorter time period and with only minor persisting cognitive problems.
Proceedings were issued and served. It was admitted that JN was suffering from HSE and that an insufficient dose of acyclovir was given when it was commenced. Everything else remained in dispute and a limitation defence was pleaded.
Shortly after the Defence was received solicitors instructed for the Trust made an offer to settle the claim for £1,000,000 as well as the family’s legal costs.
The claim was conducted by Moore Blatch solicitors: Mr
Tim Spring and
Dr Mala Sidebottom. Nigel Spencer Ley, of Farrar’s Building, was instructed. The compensation includes awards for loss of earnings, care provided by the family and deputyship.
JN’s Litigation friend said:
“Tim Spring explained everything in non-legal terms and made us, particularly my mum, feel comfortable. He, Nigel and Mala have been great and gave very clear advice about, and during, the process. Mum is very pleased with the outcome.”
Mala Sidebottom said:
“Although the family have had to wait a long time to secure compensation for JN it was helpful that an offer to settle was made relatively early on in the proceedings. I hope that this compensation will allow our client to obtain the care and support that she needs.”
If passed, the government’s proposals to extend the Fixed Recoverable Costs (FRC) fast track to cover most civil cases up to £100,000 will enable insurance companies to save millions of pounds. In response, law firms will undoubtedly need to re-evaluate their caseloads and consider the most cost-effective ways to approach a claim, with the victim potentially losing out significantly. Alongside these developments looms the inevitability of the trillion-pound insurance industry receiving another healthy boost. Surely, then, it would be reasonable for the industry to contribute some of their savings to an area of society upon which they could have a hugely positive impact?
NG was discovered to be in a breech presentation in utero and her mother underwent a successful external cephalic version to turn her, at 37 weeks gestation. NG was born on 13 September 2007 and her hips were stated to be normal at a newborn examination. She did not undergo any follow up tests at the hospital, such as an ultrasound scan of her hips, despite being in the high risk group for developmental dysplasia of the hips due to her breech presentation. There was an 8-month check up with the health visitor and nothing was picked up, although she had a more prominent crease on her right hip.
NG’s parents later reported to her GP that she was waddling when she walked and an ultrasound scan was requested. This led to a diagnosis of bilateral developmental dysplasia of the hip, at 26 months of age.
Expert evidence confirmed that NG ought to have undergone an ultrasound scan of her hips in the first few weeks after her birth and that this would have shown hip instability and/or dislocation. It is likely that non-surgical treatment would have been successful and NG would have developed normal hips without any long-term concern. If NG’s condition had been picked up after her 8-month check, treatment at that stage would have led to normal development of her hips without any long-term concern.
Following her diagnosis NG underwent bilateral open reduction and femoral osteotomies. She required a further femoral osteotomy in her right hip in January 2013 and had two further operations to remove metalwork.
An expert in orthopaedic surgery advised that NG would require a repeat osteotomy by the age of 14 and that she would develop osteoarthritis at a younger age than usual, requiring hip replacements and hip revisions sooner than she would have needed, if she had had normal hip development. It was also considered that she should avoid a career relying on long periods of standing or walking, climbing or high impact activity involving her lower limbs.
Liability was admitted in the Letter of Response in relation to failure to carry out a 6-week ultrasound scan, and an offer was made by the Defendant Trust to settle the claim, in June 2015. This was rejected and NG’s claim was quantified. A round table meeting took place in June 2018 and the case settled for a figure in excess of £300,000. In the approval hearing, in December 2018, anonymity was granted.
Dr Mala Sidebottom, who was instructed in the case said, ‘I am delighted that NG has settled her case for a sum that should enable her to access any care and treatment that she needs and to fully move on with her life.’
We regularly represent clients in medical negligence claims where injuries have occurred which could potentially have been avoided by better or alternative medical treatment and care.
If you or your child has sustained an injury during pregnancy or childbirth we are here to help. Drawing upon years of unrivalled experience our specialist medical negligence solicitors can ensure that a thorough investigation is undertaken into the circumstances of your case with a view to taking forward a compensation claim, making sure that you receive the closure and financial support you are entitled to and need.
We have established relationships with renowned medical experts in all relevant areas of medical practice such as obstetrics, midwifery, neonatology, paediatric neurology and neuroradiology. We always ensure the medical evidence used in your case is of the highest standard and that the experts we engage have the expertise and knowledge to support your claim effectively.
We recognise the very real difficulties that exist in caring for an injured child. Not least difficulties accessing ongoing medical treatment, care and support, education, therapy and equipment.
In cases where liability is resolved, we will always seek interim payments at an early stage to ensure access to such treatment, support and assistance. Our education specialists and community care team are also here to advise and provide assistance in securing all requisite NHS and Local Authority care and support during the continuance of your claim.
We are also able to offer our clients in an appropriate case a specialist ‘immediate needs assessment’ service.
If you believe that you or someone you know has suffered as a result of medical negligence please contact Tim Spring. We deal with clients throughout the country and we will visit you at your home, hospital or rehabilitation unit.