By Litigation Futures Associate: ARAG
In general individuals buy insurance for peace of mind, hoping that they will not need to make a claim and After-The-Event (ATE) is no different. ATE insurance can be arranged to protect claimants and their families’ against the risk of being unable to recover costs if the court awards less than a sum offered to settle, or if their case is unsuccessful.
The cost of expert reports that are required to support personal injury claims runs into thousands of pounds and this can be a significant deterrent to distressed families who are dealing with bereavement or severe stress and trauma following harm to their children, caused by clinical negligence. Availability of ATE gives personal injury victims confidence to bring their claim.
Clinical Negligence Case Studies
The case studies below all relate to children under the age of sixteen, for damages of less than £25,000. All three cases were successful.
Case study 1 – KW
KW received two sets of test results four days apart, both of which would have indicated deteriorating kidney function which required further investigation and treatment. Following these results however, the local health trust failed in their duty of care to act appropriately and as a result, KW suffered from continuous urinary tract infections and acute kidney failure and died a few days later.
Case study 2 – CP
CP visited his GP with a high temperature and cough. He was diagnosed with a chest infection, asthma or virus. Three days later CP was taken to a local Walk-in Centre suffering from rapid breathing, abdominal pain and a high temperature where he was diagnosed with muscle spasms and prescribed antibiotics.
Subsequently, throughout the following weeks, CP attended his GP on various occasions before attending a hospital appointment. While in hospital he suffered from a swollen, hard stomach and was diagnosed with bad constipation. This was treated and he was discharged a week later.
Over the next three months, CP developed pain in his legs and suffered from headaches. He attended the same hospital for blood tests which were inconclusive. He also attended the A & E department on numerous occasions due to chest pains however, chest x-rays were reported as clear.
Six months after his initial referral to the GP, CP had developed a limp. He was diagnosed with rheumatoid arthritis by the hospital and referred to a Children’s Hospital. By this time CP had developed further symptoms. He was later referred to oncology where he was diagnosed with advanced childhood cancer.
Despite chemotherapy, cancer spread to his bone marrow. He underwent further chemotherapy and a stem cell harvest. Two months later surgery was performed to remove the tumour from his stomach and further chemotherapy was provided and a stem cell transplant. Cancer spread to his bones, head and stomach.
It was claimed that CP would have avoided chemotherapy with earlier diagnosis and as a result would have had a better long-term prognosis.
Case study 3 – WJ
WJ was 10 days overdue at the time of birth and there were no difficulties with the pregnancy.
Prior to birth labour progressed well for a couple of hours after admission to hospital however following an epidural for pain relief being administered a midwife reported a concern about the baby’s heartbeat to the doctor. The doctor did not express any concerns but wanted to move mother and unborn child to a larger room and planned to deliver WJ within an “an hour or so”.
It has been admitted by the Trust in correspondence that this was inappropriate – the doctor should have obtained the baby’s blood sample at this point, and there is a clear implication that there should have been a caesarean section delivery.
Around half an hour later the midwife again expressed concerns because the trace was not picking up. The doctor reviewed this and switched on a drug which induces labour (this had previously been switched off) and left them alone.
An hour later a registrar found that WJ was in a bad position and suddenly the room was full of people. The epidural was topped up and they attempted a ventouse (suction) extraction, but then used the ventouse to turn WJ who was delivered by forceps. When WJ was born vital signals were poor but quickly improved.
WJ was put on the resuscitator and paediatricians worked on him in the room before transfer to the neonatal intensive care unit where he stayed for a couple of days. He had a brain scan on day 2 and was subsequently discharged after 6 days.
WJ recovered very well although his whole head was swollen, and his left ear and eye were badly cut. He also had a ventouse mark on his head. WJ suffered from a mild brain injury which would have been avoided if he had been delivered earlier.
Clinical negligence claims reforms
ATE empowers poorer families, who do not have access to Before-The-Event legal expenses insurance, to pursue claims for clinical negligence in circumstances such as those described above.
Reforms are being discussed with the intention of streamlining legal processes and capping the level of costs claimants will be able to recover. This will save money for defendants. Provided that the new processes do not disadvantage claimants, a simplified procedure is to be welcomed, however we fear that claimants will be exposed to higher unrecoverable costs which will need to be insured if not deducted from damages. Increasing the insurance risk will impact on premiums which are in turn payable from damages. Proposals have yet to be finalised but this is an area of concern that we will continue to track.