Negotiating settlements in clinical negligence cases involves balancing the prospects of success against the risks of failure in the context of often highly complex medical evidence. Lawyers representing a seven-year-old boy who sustained an avoidable brain injury due to negligent hospital treatment performed exactly that exercise.
The boy was seriously unwell during his first months of life, having been born with an infection – toxoplasmosis. When he was 10 months old, he was taken to hospital suffering from raised intra-cranial pressure. After a compensation claim was launched on his behalf, the NHS trust that ran the hospital admitted that there was a negligent delay in referring him to a surgical team. That failure, it also accepted, caused a significant and avoidable brain injury, resulting in cerebral palsy.
However, the trust disputed whether the admitted failure was the cause of the full spectrum of the boy’s disabilities, including cognitive and behavioural problems, visual impairment and intractable epilepsy. The trust contended that those difficulties arose from the congenital infection, for which it bore no responsibility, and were unconnected to the subsequent negligence. There was, in particular, a dispute as to whether he had developed epilepsy prior to the hospital admission.
Those issues greatly challenged the numerous legal professionals and medical experts involved in the case. However, the daunting prospect of a long and hard-fought trial of the claim – which could have gone either way – was averted when the boy’s legal team succeeded in negotiating a settlement of liability issues whereby the trust agreed to pay 85 per cent of the full value of his claim.
In approving the settlement, the High Court found that it fairly reflected litigation risks on both sides. The fact that just short of 2,000 pages of documents had been placed before the Court illustrated the complexity of the issues. The compromise was of considerable benefit to the boy in that it meant that the vast majority of his future care needs would be met. If not agreed, the amount of his compensation – which was bound to be very substantial – would be assessed at a further hearing.