Awards for handicapped children by dashou


          516                                                                                                          Arch Dis Child 1998;79:516–519


                                        Awards for handicapped children
                                        Patrick Hoyte

                                        When an individual has been injured by the
                                                                                            General damages for pain and suVering                   £100 000
                                        negligence of another, “English law regards         Past and future losses
                                        compensation as the appropriate expression of         Past care                                              £58 000
                                        a moral principle”1—an attempt by the imper-          Future care at say £31 000 per
                                                                                                 annum with a multiplier of 17                     £527 000
                                        fect medium of money to restore the victim as         Aids and equipment                                     £63 000
                                        far as possible to the position that he or she        Transport                                              £72 000
                                        would have been in, but for the harm suVered          Special housing                                      £135 000
                                                                                              Holidays                                               £27 000
                                        as the result of the original negligence.           Administration by Court of Protection                    £18 000
                                           This axiom applies in all personal injury        Total                                                 £1 000 000
                                        cases, whether the negligence was that of a         The multiplier on future care will be substantially less than the
                                        driver of a vehicle, an employer, a medical         patient’s predicted life expectancy, but this is deliberately so to
                                        practitioner, or some other person.                 allow for accelerated receipt and the consequent opportunity for
                                                                                            investment, as well as for “the uncertainties of life”.

                                        General damages
                                                                                            place the subdivision of the global amount may
                                        In cases where the injuries are relatively minor
                                                                                            be rather more notional than real. In either cir-
                                        and there are no lasting consequences, any
                                                                                            cumstance, the capital fund will be adminis-
                                        financial award will be relatively low, and gen-
                                                                                            tered by the Court of Protection and only dis-
                                        eral damages for what the law calls “pain, suf-
                                                                                            pensed for proper purposes. Members of the
                                        fering and loss of amenity” will make up a large
                                                                                            child’s family might well be the nominated
                                        proportion of the total. Around half of all
                                                                                            trustees or administrators, and they would have
                                        medical negligence cases fall into this category,
                                                                                            a degree of independence in how the fund was
                                        settlements for amounts less than £7500 for
                                                                                            spent; but all major decisions (special housing,
                                        problems as diverse as retained foreign bodies
                                                                                            for instance) would have to have the approval
                                        in wounds, allergic reactions to wrongly given
                                                                                            of the Court.
                                        drugs, and (sadly) most perinatal deaths.2
                                                                                               If the compensated patient dies unexpect-
                                           When the injury has been more significant
                                                                                            edly early, the lump sum remains a part of the
                                        and the patient left with long term disabilities,
                                                                                            latter’s estate, and the remaining relatives may
                                        this basic compensation will obviously be set at
                                                                                            benefit from it at some future time.3
                                        a much higher level. The current conventional
                                        ceiling for general damages in personal injury         The inexact prediction of life expectancy
                                        cases is around £135 000, the sort of figure         may without doubt cut both ways, and it is
                                        that might well apply to a baby or child with       theoretically possible that a patient could
                                        severe brain damage secondary to birth              outlive his fund and have no opportunity to ask
                                        trauma, meningitis or a head injury.                for more. Unlike early death, however, there are
                                                                                            no recorded instances of this happening,
                                                                                            perhaps mainly because wise investment
                                        Special damages
                                                                                            should mitigate against it.
                                        The extent of compensation has to be taken a
                                                                                               There is nothing to prevent relatives transfer-
                                        great deal further by the addition of special
                                                                                            ring a dependent patient to NHS residential
                                        damages—amounts accurately gauged to re-
                                                                                            care or making use of the facilities provided
                                        flect particular eventualities, aspects of future
                                                                                            free by social services departments, as everyone
                                        care, and a careful assessment of life expect-
                                                                                            is entitled by legislation to these forms of state
                                        ancy. Under Section 2 (4) of the Law Reform
                                                                                            assistance when there is need—their ability to
                                        (Personal Injuries) Act 1948, the courts are not
                                                                                            pay for themselves does not enter into the
          Deputy Head of                permitted to consider the range of NHS and
          Medical Advisory                                                                  equation.
                                        other state funded facilities that may be
          Services, Medical             available to provide long term care for a
          Defence Union, 192
          Altrincham Road,              severely disabled patient, but are obliged to       Reclamation?
          Manchester M22 4RZ,           assess the full cost of care at home or under       In June 1997, several national newspapers
          UK                            private arrangements.                               reported the case of a 9 year old girl with brain
          P Hoyte                          A typical award of perhaps £1 million for a      damage who died unexpectedly just eight days
                                        lifetime of care for a child with a significant      after receiving an award of £700 000 for medical
          MDU retains copyright on
          all material written by MDU
                                        degree of cerebral palsy might therefore look       negligence that had occurred at birth (Calladine
          staV. This article appears    something like this:                                v Nottingham Health Authority, 1997). The
          with the permission of the       Any lump sum or once and for all payment         health authority concerned sought (and was
          Medical Defence Union.
                                        awarded by a judge at trial will have been care-    later granted) leave to appeal against the
          Correspondence to:            fully calculated and subdivided along exactly       settlement with regard only to that part of the
          Dr Hoyte.                     these lines, but when pretrial settlement takes     award made for “long term future care”. The
          Awards for handicapped children                                                                                                                517

                                       authority had no intention of contesting the          After the contribution of a much smaller
                                       general damages or the cost of care already           “down payment” (to reflect past costs and
                                       given, but said that it had to consider the greater   capital items only), a structured settlement is
                                       good of the greater number.                           eVectively a phased annuity paid by the
                                          “The Authority has a financial duty and a           defendant in instalments over a long
                                          statutory and moral responsibility to              period—an excellent way of delivering proper
                                          ensure that NHS funds are used to meet             and merited compensation according to the
                                          the needs of the greatest possible number          patient’s needs. Such arrangements may be
                                          of patients. Funds were allocated for a            more expensive to set up initially, and may not
                                          purpose which no longer exists. This is
                                          public money.”                                     always be beneficial to plaintiVs, but there are
                                          The family of the child and their solicitor        significant tax savings to be made (and budget-
                                       described this attitude as “outrageous”, but          ary advantages if a health authority elects to self
                                       seemed to have missed the point that the com-         fund rather than simply purchase an annuity
                                       pensation for the injury itself would be              from a life oYce); and of course the final ben-
                                       unaVected. The only amount to be recovered            efit that payments must automatically cease in
                                       would be that part of the sum specifically             the event of the patient’s early death. Con-
                                       allowed for future care, but no longer required.      versely, a patient’s capital cannot be dissipated
                                          This application of the law has never been         in such a way that he or she becomes an
                                       tested and, in theory at least, there is no legal     unavoidable burden on state services at some
                                       provision for “unravelling” a judgment after it       time in the distant future.
                                       has been finalised; but clearly any decision in           Although structured settlements do not
                                       favour of the original Health Authority defend-       answer the problem of a living patient’s access
                                       ant would have had significant implications for        to state care and a private fund simultaneously,
                                       similar cases in the future. It became clear that     they must undoubtedly help limit the payment
                                       an appeal hearing would not take place for 18         of inappropriate compensation costs for clini-
                                       months or more, and an agreement was there-           cal negligence within the NHS.
                                       fore negotiated. The appeal was withdrawn and
                                                                                              1 Williams G, Hepple BA. Foundations of the law of tort. Lon-
                                       the original settlement was revised—at a public           don: Butterworths, 1976.
                                       ceremony. Some of the compensation was                 2 Hoyte PJ. Unsound practice: The epidemiology of medical
                                                                                                 negligence. Medical Law Review 1995;3:53–73.
                                       handed back to the hospital in the form of             3 Hoyte PJ. Medical negligence litigation in Britain; current
                                       expensive equipment and a van that the family             flaws and possible alternatives. International Journal of Risk
                                                                                                 and Safety in Medicine 1994;6:57–70.
                                       had already bought with an interim payment.            4 Ballen P. Hollie’s case. Health Care Risk Report 1998;4,5:
                                       This solution was acceptable to both sides, but           10−13.
                                       the issue raised by the Health Authority eVect-
                                       ively remains undecided.4                             Commentary
                                          There is another area where it may be possi-       The possibility of litigation and financial
                                       ble for health authorities and other bodies to        redress when parents recognise that they have a
                                       achieve greater control over NHS funds paid           child with neurological disabilities is now con-
                                       out in damages—those cases where the patient          sidered with increasing frequency. Indeed,
                                       has not died, but where state facilities are being    exploration of this pathway is for many parents
                                       used while a parallel private fund exists. When       part of an adjustment process, the rationale
                                       a child has received an award specifically to          being that they will understand and cope better
                                       provide for long term care, it seems reasonable       if they and their oVspring know exactly what
                                       for the NHS and social services departments to        happened.
                                       expect the parents to use the private sector for         This implies that if sought such answers
                                       most eventualities (unless private facilities do      would be available. It comes as a great
                                       not exist or are of inferior quality) thus freeing    disappointment to many families and their
                                       scarce state resources for patients who have not      legal advisers that medical knowledge is only
                                       been given the financial means so support              rarely able to provide answers for most children
                                       themselves. At present compensation in the            with cerebral palsy and other neurodevelop-
                                       form of care costs would in theory be paid            mental disabilities, even after the most compre-
                                       twice, and it seems axiomatic that, when the          hensive of investigations. Instructed medical
                                       state has imposed the burden of private care          experts must have the confidence in these
                                       through legislation, state agencies should take       circumstances to be prepared to say that the
                                       steps to ensure the appropriate use of that           cause of the particular problems is, on the bal-
                                       money. How health authorities and social serv-        ance of probability, unknown and unknowable.
                                       ices departments choose to pursue this argu-             Another implication is that explanation takes
                                       ment is a matter for them, but they may be bet-       precedence over fault finding for parents, at
                                       ter advised to lobby for changes in the law           least in the initial stages of litigation. This is not
                                       rather than pursue a legal challenge based on a       however, the lawyers’ or the law’s perspective
                                       specific case. (Any such challenge would have          and many parents find that their own perspec-
                                       to be mounted by the NHS provider or local            tives alter rapidly once the legal pathway is
                                       authority who would otherwise be out of               embarked on. It is frequently the case that in
                                       pocket, rather than by any original defendant.)       potential brain damage at birth litigation,
                                                                                             obstetric or midwifery (or paediatric) liability
                                                                                             can be established—that is, there was fault—
                                       Structured settlements                                but this cannot be demonstrated to be the
                                       The past three years has seen a notable increase      cause of the injuries. This clearly can be coun-
                                       in the use of structured settlements as an alter-     terproductive to parental adjustment and
                                       native to the simple provision of a lump sum.         understanding.
          518                                                                                                                Hoyte

                             Similarly, problems arise if litigation is           Commentary
                         pursued at too early a stage in a child’s life and       Dr Hoyte points out some of the very unsatisfac-
                         at a time when parents have not accepted the             tory features of our system for children severely
                         likelihood of long term disability. Under these          injured by medical negligence. As a plaintiV
                         circumstances, for them to read expert reports           medical negligence solicitor (for the past 18
                         detailing a future of dependence, immobility,            years or so) I agree the system needs reform. As
                         and limited longevity can be profoundly                  a result of the Thomas cases decided by the
                         damaging. Instructed experts have a role in              House of Lords in July 1998 (fixing a fairer dis-
                         ensuring that this does not occur.                       count rate for anticipated receipt of damages)
                             It is not likely that the litigious component of     lump sum awards for brain injured children are
                         practice will lessen or disappear, either from a         going to rise by perhaps an average of £300 000
                         philosophical change or because of the possible          a piece. My solution would be to end this
                         withdrawal of civil legal aid for personal injury        expensive and unjust system, at least for cases
                         litigation. It follows that there are implications       with uncertain life expectancy, and large and
                         for paediatric practice, not all of which are novel.     similarly uncertain future expenses.
                             The first is that note keeping must always be            Under the 1996 Damages Act judges can
                         accurate, comprehensive, contemporaneous,                order periodic payments instead of a lump sum,
                         legible, and clearly authored.                           but only if both the parties agree. Lord Steyn’s
                             Second, clarity of diagnostic thought is             judgment in the Thomas case includes the
                         required when children present with neurologi-           remark: “The court ought to be given the power,
                         cal disabilities. The presence and significance           of its own motion to make an award for periodic
                         of these needs to be recognised early and acted          rather than a lump sum in appropriate cases.”
                         on appropriately. Relevant further opinions are             Suitable cases in my view are those based on
                         an integral component of this.                           uncertain prognoses or with an impaired
                             Third, clinical risk management strategies           expectation of life. No one can accurately fore-
                         and protocols operated jointly with colleagues           tell when such a person will die. A few children
                         are of importance. These extend beyond                   die before they were expected to, and no doubt
                         perinatal morbidity and mortality conferences,           many will survive beyond the point where the
                         and clinical audit, and must include detailed            money runs out; by definition, we cannot know
                         study of adverse events and, crucially, monitor-         what happens to these patients for some years.
                         ing of junior staV practices. Indeed in large            We should stop playing God.
                         neonatal and paediatric services the case could             There is no more legal basis for reclaiming
                         probably be made for there to be a clinical              damages from the heirs of a plaintiV who dies
                         director for risk management.                            early than there is for reopening the claim of
                             Fourth, it is imperative that paediatricians         one who lives too long.
                         understand the medicolegal process and Dr                   Personally, I would like to see an end to the
                         Hoyte’s article is very helpful in this respect. The     huge task of forecasting future needs and have
                         fact that there are diVerences between scientific         periodic reviews of actual needs instead—but
                         and legal probability has to be accepted as an           there would be a lot of opposition to such
                         unsatisfactory fact of life. Related to this point is    uncertainty for the defendant, and even plain-
                         that virtually all paediatricians will at some time      tiVs do not want to be trapped in an unending
                         find themselves the focus of critical legal               relationship with the body responsible for
                         attention, if only as witnesses of fact. Support for     compensating them.
                         those who regard themselves as being criticised             The cost of determining damages is huge—
                         is important, and the lessening of the role of the       most major claims cost between £100 000 and
                         medical defence organisations following the              £200 000, sometimes much more, just to
                                                                                  quantify. No one knows what conditions will
                         advent of Crown Indemnity in defending the
                                                                                  govern the annual losses in the future. Until
                         interests of hospital doctors can make this more
                                                                                  recently I would not have provided for any
                         diYcult. This is a challenge for senior clinicians,
                                                                                  medical costs, as all my children used the
                         management, and possibly for the Royal College
                                                                                  National Health Service. We now find that
                         of Paediatrics and Child Health.
                                                                                  some children cannot get access through the
                             Finally, it is ironic that it is only the smallest
                                                                                  NHS to the specialist help they require,
                         minority of disabled children whose claims are
                                                                                  particularly for the orthopaedic problems asso-
                         successful who can expect to receive optimally
                                                                                  ciated with cerebral palsy. They will now, if
                         funded care. No study has ever been reported
                                                                                  they encounter these problems, be using
                         on how these settlements are used, yet such              money I recovered for them for other purposes
                         information could provide invaluable models              to get access to medical facilities we assumed
                         of service provision and perhaps indicate                they would have.
                         something of the true costs of caring for the               Structured settlements on the conventional
                         disabled during their lifetimes.                         model are not the answer—they are better than
                             Perhaps interested bodies such as the NHS            lump sum settlements as they provide income
                         Litigation Authority, Action for Victims of              for a lifetime, but they are more expensive to
                         Medical Accidents, and the medical defence               produce and may be just as inadequate because
                         organisations could be persuaded to move                 they are based on a conventionally assessed
                         away from their conventional adversarial status          lump sum. This is always going to be wrong,
                         and jointly sponsor such work.                           because it depends on future factors that we
                                                            LEWIS ROSENBLOOM      cannot really foresee, such as the return on
                         Consultant Paediatric Neurologist,                       investments, the future cost of care, and the
                         Royal Liverpool Children’s Hospital,
                         Alder Hey, Liverpool L12 2AP, UK                         length of time a person will live. Therefore,
          Awards for handicapped children                                                                                              519

                                       income from them is always lower than the          patient’s current needs are and establish a peri-
                                       annual losses on which the lump sum is             odic payment (probably every three months) to
                                       computed, because the insurer has to take the      cover these. The patient could come back if an
                                       risk that the plaintiV may live much longer than   emergency arose—but experienced care ex-
                                       the settlement assumes.                            perts working for the court would foresee most
                                          Dr Hoyte suggests that compensated plain-       of these. Every three years or so there would be
                                       tiVs may batten on the state for benefits that      a reassessment and where there was a need for
                                       they have already been compensated for, in the     representation legal aid would be available. Any
                                       shape of Social Services and NHS care and          services available from the state that the plain-
                                       services. This is not in theory true of Social     tiV could reasonably be expected to use would
                                       Services, as the machinery exists to charge for
                                                                                          be taken into account in awarding the periodic
                                       every possible service, and authorities do in
                                                                                          payment. There would be no pressure on
                                       fact sometimes recoup the cost of care.
                                       Certainly the situation is unsatisfactory be-      patients to foresee all their future needs and
                                       cause this is so unsystematic, and plaintiVs       huge sums in costs would be saved.
                                       equally may have to pay for services that those       Unfortunately it is generally believed that
                                       advising them expected them to get for free and    both plaintiVs and defendants prefer the lump
                                       for which they have not been compensated.          sum system, for diVerent reasons. But it does
                                                                                          seem likely that this system must change
                                       THE SOLUTION                                       sooner or later.
                                       We should be settling all past losses and those
                                       future losses that do not depend on unknown                                          SARAH LEIGH
                                       needs at trial, but paying for current needs as    Leigh, Day & Co, Priory House,
                                       they arise. I would simply assess what the         25 St John’s Lane, London EC1M 4LB, UK

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