The Windrush Compensation Scheme – is it enough?
Richard Lodge acted for a 55 year old man who underwent a cervical spine fixation procedure for cervical spinal cord compression that he had had since he was a child and which was causing a progressive myelopathy (compression of the cervical spinal cord causing weakness in upper and lower limbs).
A couple of days after the operation, he developed a mild upper gastrointestinal haemorrhage, for which it was decided that he needed a gastroscopy (OGD). He was, therefore, transferred to the endoscopy suite and had an OGD procedure under midazolam sedation. He had had 92mgs of midazolam during the time he had been on Intensive Care Unit prior to his OGD. Upon returning to the ward from the Endoscopy Unit, the Claimant complained of shortness of breath, had an oxygen saturation of 80% and shortly thereafter had a respiratory arrest. He was resuscitated successfully, ventilated by a mask and prescribed flumazenil to reverse the effects of the midazolam. He was then monitored on a neurosurgical ward. However, later that evening his oxygen saturations fell to 88% and he required 15 litres of oxygen. He then suffered a heart attack, from which he was successfully resuscitated, though having suffered a significant period of anoxia (an extreme form of hypoxia or low oxygen). He was transferred to the Intensive Care Unit. As a consequence of this second arrest, the Claimant suffered a prolonged period of anoxic damage to his brain, which resulted in Lance-Adams’ Syndrome. In spite of his injuries, he has intellectual capacity and is able to manage his own affairs.
The Claimant suffers with mild limb weakness and spends all of his time in bed or in a wheelchair. He is able to move his legs but cannot stand or sit unsupported on the side of his bed. He is dependent on a mobile hoist for transfers. He can move his hands a little but has no useful upper limb function. As a result of the anoxia, he developed a neuropathic bladder and bladder dysfunction affecting the storage and emptying of urine. He is unable to feed himself and is fed by a tube. He has severe dysarthria, which affects all levels of communication with his family, friends and support workers. However, he can make his wishes known and communicate more complex information when necessary to those who have been attuned to his communication. He has no difficulty understanding what is going on around him and has insight into his condition and has capacity to manage his own affairs. The Claimant is dependent upon others for all his care needs and activities of daily living and requires 24-hour care. He is unable to undertake employment.
The Claimant’s case was that he did not need the OGD procedure; that, if he did need it, he should not have been sedated with midazolam given the cumulative dose that he had had in the previous week or so; that, if he had not been sedated, he would not have suffered either arrest. In addition, he alleged that he was not cared for in an appropriate high care area following the OGD and following his first respiratory arrest; if he had been monitored in such an area, his respiratory arrests would have been detected and would have been appropriately managed, such that he would not have suffered a period of prolonged anoxia.
Liability was admitted in and judgment was entered against the Defendant Trust. The claim settled a month before trial in the sum of £1,690,000 plus £224,000 per annum for the rest of the Claimant’s life. The lump sum settlement was calculated to be £4,348,880.
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