Record Interim Payment Awards For Medical Negligence Claim


The Law Of… Claiming For Catastrophic Injuries

A child born with a severe brain injury, resulting in a lifelong requirement for full-time care, made a claim for clinical negligence against the hospital trust responsible for their condition. David Thomas, a Medical Negligence Partner at Simpson Millar, took on the case and explains not only how the claim has progressed, but also how it has rewritten the record books on interim payments.

Failure In Duty Of Care

The claimant in this case study – referred to henceforth as Child A – was born with a severe case of hypoxia, a condition that deprives the supply of oxygen to body tissue. It's manageable if detected and treated in time, but delays can lead to a brain injury with catastrophic consequences for the victim.

As a result of the hypoxia, Child A was left with a range of conditions requiring round-the-clock support. The extent of these conditions meant they were also classed as a Protected Party, lacking the mental capacity to make informed decisions for themselves due to the severity of the brain injury they had sustained.

The claim alleged that the obstetric staff responsible for Child A's wellbeing prior to, during and after childbirth, failed in their duty of care by not identifying or responding to the hypoxia effectively. The hospital trust admitted full liability for the birth injuries and Judgment was entered with damages to be assessed by the High Court.

Unsuitable Environment

As the value of the compensation award would take time to be determined, the hospital trust agreed to make a voluntary interim payment in order to meet Child A's immediate needs. A sum of £100,000 was paid, which was followed up later the same year, on order of the High Court, by a further payment of £800,000.

During this time it became apparent that Child A's home was not a suitable environment for dealing with the considerable range of physical and mental issues affecting them. The day-to-day care required to ensure the optimum quality of life possible meant equipment was needed, such as hoists, that the current home could not sustain. As Child A grew, the need for accommodation that met their reasonable requirements became more pressing. A further interim payment from the hospital trust was therefore sought by the family and Simpson Millar, in order to secure a bungalow that could fit this purpose.

Improved Quality Of Life

The recent judgement of  JR v Sheffield Teaching Hospitals NHS Foundation Trust (2017) meant it was now necessary to persuade a Court that there was a genuine need for extra funds, with the amount being sought not exceeding a reasonable proportion of the final damages likely to be awarded. There was also a need to demonstrate that any additional and substantial interim payment would not affect the judge's discretion when it came to making a Periodical Payment Order (PPO), which are paid in annual instalments for life, as opposed to a single lump sum.

The hospital trust, initially unwilling to make another interim payment, eventually accepted that Child A's accommodation was not satisfactory for their reasonable needs and a large 4 or 5 bedroom bungalow was necessary for a more appropriate care regime to be implemented.

A further interim payment of £500,000 was awarded by the High Court Judge overseeing the case, which allowed the family of Child A to buy a bungalow with enough room to provide living quarters for a professional carer, as well as fit all the necessary equipment required to assist with the child's day-to-day needs. This move to a new home has marked a significant improvement in Child A's quality of life.

Record Breaking Interim Payments

The cumulative sum of interim payments so far has reached £1.4million, a figure that has seen Simpson Millar break records for awards of this nature. This is due largely to a recent change in the way compensation is calculated for successful catastrophic injury claims.

The case has been stayed until Child A reaches the age of 7, allowing all parties to finalise their expert evidence in order to negotiate a final settlement.

David comments:

"This case highlights how a simple medical error – in this instance, the failure to detect or respond to the hypoxia – can have absolutely devastating consequences for a new born baby’s future. And it isn't just the victim of the negligence who is affected, but the families and loved ones too."

"The  unprecedented level of the interim payments awarded in this tragic case show just how desperate Child A's situation was. The extent of the catastrophic injuries means they will never be able to live what we term a 'normal' life, but with the financial support in place that this claim has so far provided, the quality of that life is greatly improved for both the victim and their family."

If you believe there is  a case for medical negligence for your child's birth injuries, you may be entitled to similar compensation. To discuss your case in confidence, contact our Law Society panel accredited, clinical negligence specialist, David Thomas, on 0345 357 9424 today.

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