Disclosure of documents subject to implied undertakings
News broke this morning that the NHS awarded a nine year old girl £19 million compensation.
The girl was born at King’s College Hospital in London with high levels of bilirubin in her blood, which causes jaundice. King’s College Hospital NHS Foundation Trust accepted that there had been shortcomings in the care provided to the girl, which subsequently left her with catastrophic brain damage. It was accepted that had the medics swiftly carried out a total blood exchange the girl would have escaped permanent injury. Rather, she now has severe behavioural difficulties, but despite the brain damage has insight into her condition and has a very long life expectancy.
The girl was represented by Elizabeth-Anne Gumbel QC and the NHS Foundation Trust by Alexander Hutton QC. The NHS Foundation Trust accepted 85% liability for the girl’s injuries. Sir Robert Francis who approved the payment in the High Court reported that this was very near to the top end of the scale for a brain injury.
The girl will receive a £6.8 million lump sum, plus annual, index-linked, payments to cover the costs of her care for life. Those payments will start at £130,000-a-year, before rising to £174,250-a-year in 2020. When she approaches her twenties, in 2028, the payments will rise again to £228,000-a-year. Given the the girl's long life expectancy, the capitalised value of the settlement is £19,410,417. Had the trust accepted 100 per cent liability for her injuries, the award's total value would have been in excess of £22 million.
We hear reports all the time that the the NHS is burdened by clinical negligence claims and recent trends indicate that clinical negligence awards are indeed increasing. In July 2017, NHS Resolution published its annual report revealing that £1.7bn was paid out to settle clinical negligence claims in 2016-17, up 15% on the previous year. Future clinical negligence claims are estimated to cost the NHS £65bn. The actual number of claims however, is stable or even falling. In their annual report, NHS Resolution stated that the number of claims it received during its 2016/2017 financial year dropped by 2.5%.
One of the reasons for the rise in claims costs is the sudden increase in the size of awards in high-value cases. The Lord Chancellor’s decision to cut the discount rate (the rate used by courts to calculate the size of lump sum compensation payments for future needs) to a historic low of -0.75% from 20 March 2017 dramatically increased the size of all compensation awards for claims with a future element.
The first case settled under the new rules saw an NHS trust forced to nearly triple its payout to a 10-year-old girl left with cerebral palsy from £3.8m to £9.3m. There is no doubt we will continue to see record breaking awards.
The route to compensation arising from medical negligence is often a long one, but one that is often worthwhile and in this case, necessary for the little girl who has suffered life-changing injuries.
If you have been affected by the issues discussed in this blog, please contact a member of our Clinical Negligence team. Alternatively, you can contact us on 020 7814 1200 or email us at firstname.lastname@example.org.
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