The Times reported on 9 October an award of £37 million pounds to a 6 year old boy who suffered a “catastrophic brain injury”

This was after a delay by Watford General Hospital in providing the drug Acyclovir to treat the Herpes Simplex virus which the un-named boy developed shortly after his birth.

The two day delay in diagnosing and treating the virus led to the disastrous consequences.  The boy suffers with eyesight and communication problems, together with cognitive and movement difficulties and behavioural problems. Liability was admitted at an early stage by West Hertfordshire Hospitals NHS Trust, which manages Watford Hospital and the Chief Executive has apologised.

It is only recently that a settlement was reported of £20 million pounds and then very shortly after, another in excess of £20 million pounds; some £23 million pounds was reported. This figure far exceeds those, record awards at the time and illustrates the enormous and rising costs of caring for severely disabled people.

Trusts and Defendant lawyers constantly complain about the cost of successful clinical negligence claims and the awards being made, which they say detract from being able to provide care in other sectors of the NHS for the wider public.  We don’t know the precise circumstances of this case, nor the reason for the delay in providing treatment, but the hospital itself admitted liability early on (which is to be welcomed), which suggests that even they had to accept that the delay was indeed negligent and could –and should- have been avoided. They failed to provide a “reasonable standard of care”.

We have said before that the NHS is not required to provide “perfect” care to every single patient. There are risks and even as medical negligence lawyers, we know that there are things that will go wrong that will not be anyone’s “fault”. All we and the law ask is that the treatment and care provided is “reasonable”.  Where a hospital acts unreasonably and admits as much itself, then it must answer for its actions and that means offering compensation, which is the only remedy the law can offer.  Had the hospital acted “reasonably” and therefore non-negligently, then up to £37 million pounds could have been saved. It is not the boy’s fault he was so severely injured.

This does not mean that the boy will be given the £37 million pounds as a lump sum immediately. Sometimes this does happen, normally with lower amounts, but more often these days, as in this case, a successful Claimant will be awarded a sum immediately to provide “immediate needs”, such as appropriate accommodation and round the clock care requirements, with the rest of the sum being made up of annual, index linked and tax-free payments to provide for their lifetime needs. 

In some cases, a special trust for the money is an appropriate way of dealing with it, but not always.   The idea is to make an award that will cater for the Claimant’s needs over their projected life expectancy, as the fear is always that the money will “run out” and the Claimant left with no provision for care etc, an increasing problem with the rising costs of meeting their needs.  If, sadly, a Claimant does not achieve their projected life expectancy, then the annual payments normally cease at their death. Provision can be made in appropriate cases for a period of transition before the payments stop entirely.

Judge Lambert, who heard the case, praised the parents of the boy for their

“quite astonishing care and devotion….at very considerable cost to their own physical and mental health”.

The toll that such catastrophic injuries and even not so catastrophic ones, take on the wider family is often forgotten. They need care and support themselves. We see many parents or partners who refuse to take breaks themselves and the worry is that they will then suffer a breakdown themselves.  It is possible to make a perfectly legitimate claim for the care and assistance provided by family members and this can include respite care and much needed holidays.  Carers should not be shy of, or embarrassed by, looking after their own needs as well.  They cannot provide support for the injured person where they cannot cope with the often under-estimated effort this takes on a daily basis.

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If you need advice in brain injury then please contact our specialised medical experts. We have offices across Lincolnshire and Nottinghamshire based  in Boston, Grantham, Lincoln, Newark, Sleaford and Spalding.

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