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Case Study

Instructions from April 1995 for hearing in connection with a claim for damages for personal injury and loss arising from medical negligence. In July 1994, the Claimant, who was then aged 23 and employed by the Rover Group, visited her mother in Skegness. She developed a severe headache which was diagnosed by her mother’s GP as sinusitis and for which antibiotics and painkillers were prescribed. On returning home to Birmingham, she presented to her GP, the Defendant, with a persistent headache. Despite the Claimant’s explanation of the initial diagnosis, the Defendant diagnosed a migraine and prescribed a painkiller. On 9 August 1994, the Defendant attended on the Claimant again, diagnosing sinusitis and prescribing further drugs. On 11 August, the Claimant attended the Defendant again with headaches, a swollen face and frontal tenderness. The Claimant’s symptoms persisted, and on 18 August the Defendant arranged for (non-urgent) X-ray examination. She was attended by the Defendant’s locum on 20 August, and on 3 September she attended for the X-rays. The Defendant refused to attend her on that day, and the Claimant took herself to the accident and emergency unit at Heartlands Hospital, from where she was transferred to the Midland Centre for Neurology and Neurosurgery. On 7 September she underwent a joint ENT and neurological procedure, having a by-coronal flap raised, drainage, obliteration of the frontal sinuses and drilling away of the osteomyelitis bone. She spent a further two weeks in hospital. The Claimant is left with scarring to her head and a significant depression in her forehead. In January 1995, she relinquished her job with Rover as a consequence of her experience, which was an intimation to her of her mortality which caused her to review her life. She has undertaken voluntary work since that time, most of it unpaid. The Claimant contended that the Defendant was negligent in failing to diagnose acute frontal sinusitis, to arrange urgent referral to an ENT surgeon, to arrange an X-ray earlier and more promptly, to arrange a CT scan and to provide intravenous antibiotics instead of oral antibiotics. Upon receipt of initial instructions, legal aid was obtained. The hospital and GP notes were requested, and medical reports were received from a GP expert (liability), an ENT surgeon (causation), and a maxillofacial surgeon (condition and prognosis). Correspondence ensued with the Defendant and the Medical Protection Society. Proceedings were issued in the Tamworth County Court in August 1997. the condition and prognosis report indicating evidence of psychological injury. The Defendant denied liability and causation. The automatic directions timetable was varied by consent and discovery and inspection followed. Witness statements were exchanged, the Claimant disclosing evidence from a friend with whom she had stayed in the relevant period. A psychiatrist was instructed to report. Counsel advised in conference with the medical experts on liability and causation, and advised in writing thereafter. The Claimant made application for leave to amend the particulars of claim to plead the history of the attendance on the Claimant’s mother’s GP and to counter the Defendant’s likely contentions as to negligence alleged on 11August (swollen head) and as to causation. The amended schedule of special damages claimed three years loss of earnings by reason of her psychiatric injury. The Claimant’s application was granted by consent. The amended defence pleaded no swelling on 11 August, by which time, it was contended, osteomyelitis was established. The Claimant’s medical evidence was enhanced in readiness for exchange, but the Defendant’s solicitors indicated that they wished to alter the directions timetable, and they made application accordingly. New timetabling directions were subsequently made. Exchange of medical evidence on liability and causation was effected thereafter. Upon service of the Claimant’s psychiatric report, the Defendant made application for a debarring order on the basis that psychiatric injury had not been pleaded in the particulars of claim. The District Judge granted an order in the terms sought. Counsel advised in writing as to, inter alia, the merits of an appeal of the District Judge’s order. Notice of appeal was issued, and counsel was briefed for the hearing before a Circuit Judge. The appeal was allowed with costs, there being an order for no order as to costs of the hearing before the District Judge. The Claimant served her employment consultant’s report, and the Defendant disclosed medical evidence on condition and prognosis. The action was set down for trial. A payment into court of £7,000, made just before the appeal hearing, was not accepted. The Defendant’s counter-schedule of special damages denied the totality of the Claimant’s claim on the basis that causation was refuted. The trial was listed for five days commencing on 12 July 1999. Following disclosure of the Defendant’s psychiatric evidence, which contended for loss of earnings for one year only, a ‘without prejudice’ offer was made in the sum of £16,550. The offer was rejected and an offer of £19,500 was subsequently made under CPR Part 36. There followed an open admission of the Defendant’s breach of duty. A CPR Part 36 payment into court was made to bring the sum in court to the same figure as the Part 36 offer. After consideration of the difficulties on causation and the litigation risks, the Claimant gave instructions to accept the monies in court.