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Jan McFadden was left with multiple amputations after surgery to reverse a colostomy led to a perforated bowel, sepsis and necrotising fasciitis.

Over the course of the next few days, a combination of hospital failures, including delays in diagnosis and ineffective antibiotic treatment, allowed the infection to overwhelm her body which began to shut down, causing multi-system organ failure, ischaemia and extensive peripheral vascular compromise. She developed gangrene in her hands and feet, eventually leading to the amputation of her left hand, fingers of the right hand, toes on the left foot and her entire lower right leg.

Following the settlement of her negligence claim, Jan has moved house and, with the help of her compensation, she has started taking further steps to restore some degree of normality in her life. Serious injury solicitor, Julie Marsh, recently visited Jan and her husband Martin to see how she was getting on. 

Jan, what’s changed since your case concluded?

The biggest change has been at home. Martin and I moved from our home to a new property which has been especially adapted to meet some of my needs.

We now have a large shower room that I can use independently and safely, instead of having to struggle to use the bath. 

Our new property is all on one level, and I do find it much easier now that I don’t have stairs to deal with. 

I know you managed to get back to driving. Are you still enjoying it?

It is fantastic to be back driving. I recently changed my vehicle. It is adapted so that the accelerator is on the left side, and I have a special grip on the steering wheel to control the direction of the car.  It means I can go out on my own, safely.

I used some of the compensation from the case to pay for a light weight mobility wheelchair which fits into the boot of the new car. I also decided to pay to have a special electric hoist installed in the boot of the car that will lift the scooter in and out of the vehicle so I don’t have to struggle to do so.  I can simply press a button on the remote and the winch/hoist will lift the chair out and place it on the ground for me.

Having the car and the hoist has really given me back my freedom. Martin is more confident when I go out alone now, knowing that I am safe to drive and have the chair easily accessible if I need it.

I know you previously considered an upper limb prosthesis.  Have you looked into this any further?

I have done some research into prosthetic silicone fingers to give me some grip which I lost, obviously, when my fingers were amputated. I’m hoping to order them shortly.

My next priority is an upper limb prosthesis. When the case first settled, I didn’t  make any immediate decisions about an artificial arm as I wasn’t sure about what was best for me. I didn’t think that I would be able to have a microprocessor prosthetic limb or that I would be able to control one with the muscles that remain in my upper arm. I always thought that the only prosthetic provision available would be a silicone or cosmetic limb, which had no practical function.

Recently I have had the opportunity to try a prosthetic limb where I found that I can use the muscles in my upper arm to control a hand with a pincer grip, and it was a great success.  I was really surprised at how quickly you can adapt your muscles to using one. I think it will really make a big difference to my life if I can have one to try out on a longer term basis.

At the moment I still have to rely on help from Martin to get dressed and to do some things in and around the kitchen. A new prosthetic arm would give me even more independence.

And what does the future hold?

I have just become a grandmother, so I’m spending a lot of time with my new grandchild.

 I’ve also just come back from holiday – my first holiday in many years, because I wasn’t confident about going abroad with my disabilities. It was just too difficult and too expensive.

After the case concluded, I felt mentally and physically well enough to travel and I had money from the claim which meant I could afford to arrange disabled accommodation for the trip. 

I’m not sure what the future holds but I feel better equipped to meet it now that the negligence case is concluded. It helps to know that there is some security for our future together.

The recent case of DCC v NHL [2019] EWCOP9 considered an application by a local authority for an order permitting a DNA sample to be taken from NHL to assist with DNA testing.

The application for the DNA sample to be taken was not contested. However, the case contains some important reminders for practitioners, carers and those taking samples where the patient lacks capacity and an application has been made to the Court of Protection authorising the taking of a sample.

DCC v NHL [2019] EWCOP9 - the case

NHL was suffering in the late stages of a genetic degenerative neurological condition known as Prion disease. A Judge in the Family Court had declared the outcome of DNA tests would be of vital importance in the resolution of proceedings to establish the paternity of a child and because there was a possibility that the child may have inherited the disease from NHL.NHL had previously indicated to a social worker that a paternity test should be undertaken so that the child could be made aware that they may have inherited the disease and would therefore have the opportunity to decide whether to undergo genetic testing.

The application was listed for a hearing but NHL’s condition deteriorated rapidly and an urgent out of hours application was made. However, before the order was made, it emerged that the DNA testing company had already visited NHL and had taken the DNA sample with the agreement of NHL’s family. However, the sample had been taken without the formal consent of NHL or approval of the court.

The Court’s decision

The Judge was satisfied that approval should be given for the taking of the DNA sample and made an order retrospectively authorising the taking of the sample. The Judge did not feel any injustice or harm had occurred in taking the DNA sample. However, the Court made the following points as a reminder of the correct procedure when an adult lacks capacity to give their consent for a DNA sample to be taken:

• Where the patient lacks capacity, an application has to be made to the Court of Protection for an order authorising the taking of a sample. It will be unlawful for the sample to be taken without the Court’s permission.
• There is always a Judge of the Family Division available to sit in the Court of Protection to deal with urgent applications, usually be telephone, twenty four hours a day, seven days a week, every day of the year.
• There is no excuse for failure to comply with the obligation to obtain the Court’s permission.
• Any infringement in future will run the risk of not only attracting the Court’s severe criticism but also potentially incurring liability for damages if a breach of human rights occurred.

How can Boyes Turner help?

Our specialist Court of Protection team has a wealth of experience in supporting individuals who lack capacity and their families.

For more information on deputyship and how we can help please contact our Court of Protection team by email on cop@boyestuner.com

Nicola Anderson, associate - solicitor with Boyes Turner's specialist medical negligence team discusses what happens when the signs of a childhood brain injury effect adulthood.

What is acquired brain injury or ABI?

Brain injury occurring in childhood can be the result of a trauma, such as a fall or a blow to the head (a traumatic brain injury). Brain injury may also develop following an illness. Regardless of the cause, if there was a period of normal development before the brain was injured, this type of injury is called an acquired brain injury or ABI. 

Which illnesses can cause brain injury?

There are several types of illness which have the potential to cause damage to the brain. For example:

• Meningitis (a swelling to the lining of the brain, caused by either a viral or bacterial infection);
• A stroke (interruption to the blood supply to the brain);
• A brain tumour;
• Epilepsy;
• Hypoglycaemia ( very low blood sugar levels).

Is a brain injury always obvious?

The answer is no, not always. On discharge from hospital, children may seem well in themselves and parents will be reassured that a good recovery has been made. If there are any immediate difficulties (for example fatigue, or problems with mobility), the symptoms may be subtle, or they may come and go. Alternatively, there may be no signs at all that the child has suffered a brain injury, with symptoms only becoming apparent years later as their brain develops, and the mental load placed upon them increases.

What are the symptoms of acquired brain injury?

There is no typical case. Every child, and every injury, is different. However, issues arising in childhood may include:

• Physical problems such as reduced mobility, or difficulty with balance or coordination (for example, the child may appear clumsy);
• Onset of epilepsy;
• Impaired speech;
• Hearing loss;
• Visual disturbance;
• Behavioural difficulties, such as defiance, or being impulsive;
• Mental health problems, including depression and other emotional difficulties, for instance being quick to anger, or prone to anxiety;
• Fatigue;
• Difficulty concentrating, recalling information, planning, and learning in general;
• Finding it difficult to make and maintain friendships.

Whilst this is only a summary of the difficulties children with acquired brain injury may experience, it highlights how diverse the symptoms can be, and how one symptom may feed in to another. For example, a child who is tired will struggle to learn. They may become frustrated by their slow progress and have frequent emotional outbursts, which may worsen during the teenage years. These outbursts will make it difficult for them to maintain relationships with others, both at home and at school, and their mental health may suffer. It is not surprising then that a child’s brain injury, caused years earlier during an acute illness, may be mistaken for other conditions, such as Attention Deficit Hyperactivity Disorder (ADHD), dyspraxia, or autism. The link with the long forgotten childhood illness may not be immediately apparent.

What should I do if I suspect my child has an acquired brain injury?

It is important to seek support early and to make others aware that your child may have an acquired brain injury. All mainstream schools will have a Special Educational Needs Coordinator (SENCO) responsible for identifying children with additional needs and they are likely to be a good first port of call, as are support organisations such as The Child Brain Injury Trust and Meningitis Now.

How can Boyes Turner help me secure support for my child within school?

The education team at Boyes Turner are experts in the law relating to Special Educational Needs (SEN). We can assist parents with matters relating to Education, Health and Care Plans (EHCP’s) and securing support within schools.

Can my child claim financial compensation for their acquired brain injury?

It may be possible to bring a claim for financial compensation if it can be established that the child’s brain injury was caused, or contributed to, by the negligence of another, such as:

• a doctor or hospital trust failing to correctly diagnose and/or correctly treat the initial illness, therefore causing, or increasing the risk of a brain injury (a medical negligence claim);
• the driver of a vehicle causing a road traffic accident (a claim for personal injury);
• a local authority, individual or company failing to safely maintain an environment, for example, a playground, or public park (again, a claim for personal injury).

Please do get in touch if you think your child may have a case and our specialist claims team can advise you further.

Are there time limits for bringing a claim?

There are time limits for bringing a claim.  

A child generally has until their 21^st birthday to pursue a claim (three years after turning 18),  however, in some circumstances, it may be possible to bring a claim after this. To protect your child’s right to make a claim, advice should always be sought from a brain injury specialist solicitor as soon as possible.

If you are caring for a child who has suffered an acquired brain injury and you would like to find out more about making a claim, contact us by email at claimsadvice@boyesturner.com.

According to cancer charity, Cancer Research, every two minutes someone in the UK is diagnosed with cancer. The NHS deals with over 350,000 new cases of cancer each year. Around a third of those are diagnosed via the ‘two-week-wait’ referral rule, a quarter following a routine or urgent GP referral, and a fifth are diagnosed (often at an advanced stage) after presenting as an emergency.

Cancer survival has doubled in the UK over the last 40 years, with significant variation in survival between cancer types. 89% of cancer patients in England rate their care as very good or excellent. There are National Institute for Clinical Excellence (NICE) guidelines in place, designed to help doctors refer patients with suspected cancer earlier and more directly to the resources that can help them, with the aim of reducing delay between onset of symptoms, referral, diagnosis and treatment, but despite these measures, sadly, for a small minority of patients, unacceptable delays still occur with devastating consequences.

What type of cancer delays lead to compensation claims?

Some types of cancer (breast, cervical and bowel) are subject to national screening programmes which should identify abnormalities at an early stage.

Women aged 25 to 64 are invited to undergo cervical screening every three years. This is extremely valuable as abnormal cells can be detected early and then monitored or treated before these become cancerous. Early detection of potential cancers through screening saves lives. Where claims occur in these circumstances, they tend to arise when smear tests are misreported as being normal when in fact there are abnormalities, or when patients who need follow up or treatment are not notified or recalled.

All women aged 50 to 71 are also invited to undergo breast cancer screening every three years. If a woman has an increased risk of developing breast cancer, for example, due to her family history of the disease, she may be eligible for screening below the age of 50. Screening consists of an X-ray (mammogram). Mammograms can detect breast cancer early, possibly before there is a noticeable lump. Unfortunately, there have been instances of women not being invited to attend breast cancer screening, misreading of mammograms and failure to call patients who are identified as having abnormalities for treatment.

If a person starts experiencing symptoms that could be suggestive of cancer it is important that their GP recognises their potential cancer symptoms and makes the appropriate referral for investigation or treatment. The National Institute for Clinical Excellence (NICE) has produced guidelines for GPs to follow that clarify when a person should be referred to a specialist for further investigations. These are very effective, but we continue to see clients who have attended their GP on a number of occasions, sometimes over a considerable period of time, complaining of potential cancer symptoms before their concerns are acknowledged and they are finally referred, leading to delayed diagnosis and treatment of their cancer.

How is claim arising from a delay in diagnosis and treatment of cancer valued?

There is no set compensation award for a claim of this type, so each case is valued according to our client’s own circumstances. It is important to understand that any injury arising from the disease itself, which the patient would still have suffered even if she had been promptly diagnosed and properly treated, will not be compensated. A successful claim will provide compensation for the additional physical and often psychological injury and financial loss that the patient suffered as a result of the negligent delay in diagnosis, the failure to treat promptly or the pain and side effects of the more radical treatment that was only required owing to the progression of the disease during the negligent delay.

How is pain and suffering compensated?

The claim includes a payment for ‘general damages’ which reflects the pain, suffering and loss of amenity caused by the GP or hospital’s negligence. This aspect of the damages award generally follows guidelines which are based on what the court has previously ruled as an appropriate level of compensation for that type and severity of injury.

Are my financial losses also compensated?

‘Special damages’ is the name given to the aspect of the award which compensates for ‘out of pocket’ expenses that the patient has actually paid or financial losses that they have suffered as a result of the delay in diagnosis.

What other types of injury or loss are commonly claimed in a delayed diagnosis or treatment of cancer case?

Discussed below are some common losses arising from delays in the diagnosis or treatment of cancer. This is not an exhaustive list and depends on the individual client’s own experience, the nature and severity of their additional injury and their financial circumstances. We work with each client to understand how the negligent delay has affected them. We may also instruct experts to comment on specific items listed below, for example which aids and equipment would be of benefit or which adaptations to property are required.

• Additional Treatment
  The pain, injury or disability caused by additional or more radical treatment and the costs associated with it are considered when assessing this aspect of the claim.
  
  If there is a delay in diagnosing cancer the affected person may have experienced treatment that would not have been required if the cancer had been picked up at an earlier stage. Delays in diagnosis of cancer can lead to more intrusive and significant surgical procedures than would have been the case had it been recognised earlier.
  
  Early treatment for cervical cancer may consist of a cone biopsy (where tissue is removed from the cervix) and/or trachelectomy (removal of the cervix) but progression of the disease during a delay in diagnosis might mean that the patient needs a radical hysterectomy, which would otherwise not have been necessary. Not only is this a more significant procedure with more risks of complications and longer recovery time, but it results in the woman becoming infertile. In these circumstances we would consider not only the impact of more intrusive surgery, but the emotional/psychological impact and costs arising from infertility.
  
  Delays in diagnosis of cervical cancer can lead to a person undergoing chemoradiotherapy and brachytherapy which, again, could have been avoided if signs of the condition had been picked up at an earlier stage.
  
  If breast cancer is diagnosed at an early stage, treatment may consist of a lumpectomy, a breast-conserving surgical treatment in which the tumour (but not the breast) is removed. In more advanced stages, treatment may be mastectomy, which is removal of the whole breast as well as reconstruction. If delay in diagnosis has led to a mastectomy where, but for the negligence, a lumpectomy would have been offered, the impact of the more intrusive surgery will be reflected in the value of the claim.  Delays in diagnosis of breast cancer can also lead to the woman requiring chemotherapy which would not have been required if the cancer had been identified at an earlier stage.
  
  Not only do these more intrusive treatments have a significant impact on the person at the time, but the long-term consequences can be devastating. The claim takes into account past, ongoing, and future costs and consequences arising from additional treatment.
   
• Loss of Earnings and Pension
  
  If a person has had to take time off unpaid, take a pay cut to change jobs, or cut down on hours as a result of treatment undergone as a result of the delay in diagnosis there will be a claim for net loss of earnings and pension.
   
• Care and Assistance
  
  A loved one may have had to take time off work to care for someone during and/or after treatment that could have been avoided if cancer had been identified sooner. In this case there will be a claim for their time. Professional carers may also need to be employed either in the short or longer term to assist a person with care needs arising from additional injury caused by their delayed cancer diagnosis.
   
• Medical Expenses
  
  These include the cost of prescriptions and also the cost of any therapies that may be of benefit, possibly including physiotherapy and/or occupational therapy.
   
• Travel Expenses
  
  The costs of travel to and from medical appointments which are required as a result of the delay in diagnosis, for example, can be claimed.
   
• Aids and Equipment
  
  An expert may be appointed to comment on any aids and equipment which might be of benefit.
   
• Adaptations to Property
  
  The consequences of delayed diagnosis and treatment of cancer can lead to long term disability. Where our experts believe that our client’s home needs adaptation to suit our client’s disability, [for example to provide a more accessible bathroom if bowel and/or bladder function are impaired] the reasonable costs of these adaptations can be claimed. 
   
• Psychological counselling
  
  Severe, life-threatening injury, fear of recurrence of the cancer and the intensely personal nature of the disability caused by delayed cancer diagnosis and treatment can be very difficult to come to terms with. In these circumstances some people need psychological help to overcome anxiety or adjustment disorders, depression and PTSD. Where our experts believe that our client would benefit from counselling we are often able to recover the costs of such treatment as part of the claim.
   
• Loss of dependency and bereavement
  
  Where negligent delay has caused someone’s death, we can help the bereaved and dependent spouse and children obtain compensation for their loss of dependency and other claimable losses.

If you have suffered severe injury or have been bereaved as a result of delays in  cancer diagnosis or treatment and would like to find out more about making a claim, contact us by email at mednegclaims@boyesturner.com.

Losing a loved one is always emotionally challenging but when their death was caused by incorrect medical care it is natural that bereaved family members seek help to find out what went wrong. In some cases, particularly where the deceased left no dependants, the family may decide that seeking compensation is not their preferred way of finding answers, peace of mind or closure, but where the deceased left dependent children, a husband, wife, partner or elderly or disabled relatives for whom they provided care, a successful negligence claim can ease the financial hardship which follows a parent, breadwinner or family carer’s death.

We asked medical negligence solicitor, Tara Byrne, how she investigates and values cases arising from a death and why she believes they are so important to investigate.

What information do you need from a bereaved client who believes that negligent treatment has led to a loved one’s death?

[I/we] understand that it can be hard for bereaved relatives to talk about the upsetting events which led up to their loved one’s death. [I/we] try to guide clients supportively through our initial conversation so that [I/we] can advise them how best to proceed and whether we can help them with a claim. 

In talking to a bereaved family member, it’s really important that I understand exactly what has happened, how and when the individual died and what the family member feels went wrong.

To understand whether an investigation should take place, I need to know:

•        what symptoms the deceased experienced;

•        what diagnosis, if any, had they have been given prior to their death;

•        details about each of their visits to their GP or hospital and any advice or treatment they were given;

•        the cause of death and whether a post mortem or inquest has taken place;

•        details about the deceased’s family and work life at the time of their death.

Can anyone bring the claim on behalf of the deceased?

No. If there is a will, the executors are entitled to bring the claim. If there is more than one executor, then all of them must agree to pursue the claim. It is possible for one to deal with the claim if the others give their signed authority. Alternatively, if there is no will, then the person who wants to lead the claim will need to obtain Letters of Representation in their own name. My colleagues in Boyes Turner’s wealth protection team can help with this.

Is there a time limit for making a fatal medical negligence claim?

Yes, there is a three year deadline from the date of the death.

How are claims arising from a death funded?

Usually the case will be funded by a Conditional Fee Agreement (“no win no fee”) with After The Event insurance. This means that the client doesn’t have to pay any legal costs at the start of the claim and will pay nothing if the case is unsuccessful. In a successful claim the majority of the claimant’s legal fees are paid by the defendant.

I take great care in explaining the funding arrangement in detail to my clients to make sure they are entirely comfortable with the agreement. Where a claim, even if successful on its merits, is unlikely to be financially viable for the claimant, I let them know at the outset, as we would never advise a client to pursue a disproportionately expensive claim.

How do you investigate whether a GP or hospital acted negligently?

I need to establish that the negligent treatment caused or significantly contributed to the death. Each case is unique and my approach to each individual case depends on the circumstances of the death, however, the investigation always begins with gathering medical evidence. Once I have a signed authority from my client, I request the GP and hospital medical records and consider them carefully. I also take a detailed statement from my client and, if necessary, any other family members or friends, to record their recollection of what happened leading up to the death.

A successful medical negligence case depends on supportive expert evidence. Therefore, once I have the records and statements, my next step is to instruct experts in the relevant medical disciplines to comment on the care given to the deceased (to prove breach of duty), and the impact of that care and whether it caused or contributed to the death (to prove causation). My choice of experts depends on the type of treatment the deceased received, so for example, if the A&E care is a concern, I will instruct an A&E expert. If the concerns relate to treatment from a GP, then I instruct a GP expert. The type of causation expert depends on the cause of the death, so for example, if the deceased died from sepsis, I usually instruct an expert who specialises in critical care to comment on whether earlier or more appropriate treatment would have avoided the death. If, however, the deceased died of cancer then I would instruct an expert in oncology.

How do you calculate the level of compensation in a case where someone has died?

As with all medical negligence cases, the valuation is tailored to the individual client, so every case is different.

The law relating to compensation claims in fatal cases – who can claim and what can be claimed - is set out in The Law Reform (Miscellaneous Provisions) Act 1934 and the Fatal Accidents Act 1976.

The following losses can be claimed on behalf of the deceased’s estate:

• ‘general damages’ for pain, suffering and loss of amenity - the pain, suffering and disability arising from the negligence which was suffered by the deceased up to their death;
• ‘special damages’ - any financial losses, including lost earnings, care and services, whether provided by paid professionals or freely by family or friends before the death;
• reasonable funeral expenses which were paid for by the estate.

Family and dependants of the deceased can claim:

• the statutory bereavement award - a fixed sum, presently set at £12,890, which is only payable to selected people, including the deceased’s spouse or civil partner or the parents of a deceased child under 18 years old at the time of death;
• a claim for loss of dependency – often the largest item of loss, which compensates the deceased’s dependants for the loss of the deceased’s income or services, such as childcare, housework, home maintenance and gardening etc;
• funeral expenses if paid by the dependants rather than the deceased’s estate. 

Why do you think it’s important for negligently caused fatal cases to be investigated?

Losing a loved one is difficult in any circumstances but at Boyes Turner we often see the increased pain that bereaved families feel if they think that the death could have been avoided. An investigation provides the family with insight into the circumstances of their family member’s death, the treatment provided and whether there were any failings in care. The claims process also enables the NHS and individual medical professionals to learn from mistakes, so that steps are taken to avoid further harm to other patients in the future.

Dependant families are often left struggling financially where the person who has died was the primary income provider, a parent to young children or family carer. In these circumstances, a successful claim can provide compensation to ease their financial concerns at what is already a very distressing time. 

If you are concerned about the treatment your family member or friend has received, or are caring for bereaved, dependent children as a result of medical negligence,  please contact our specialist solicitors on mednegclaims@boyesturner.com.

Kim Smerdon leads Boyes Turner’s highly regarded personal injury team. A specialist in catastrophic injury cases, Kim acts for clients with acquired brain damage, spinal injuries and serious orthopaedic injuries. We pulled Kim away from her desk for 60 seconds to answer some questions…

What motivated you to specialise in personal injury law?

During my training contract, I spent a year in the litigation department working mostly on personal injury cases. I, alongside my training partner, acted for some very badly injured people. Seeing their struggles and determination motivated me to continue to help those who needed it.

Describe the most memorable case that you’ve won for a client.

I acted for a young man who was shaken by his father when he was 9 weeks old and sustained a severe brain injury, I worked with him for a number of years, settling his case when he was 19. He was awarded in excess of 3.5million by the Criminal Injuries Compensation Authority. He is now under the care of our Court of Protection team who help him manage his compensation.

What is the most rewarding part of what you do?

The most rewarding part of what I do is seeing the difference that our involvement makes. Where I can, I arrange early rehabilitation to ensure that they can maximise their recovery. We are partnered with charities and support organisations who can help people who have sustained a serious injury get back on their feet (either literally or metaphorically!) and it’s a great to see the improvement in people we work so closely with.

Outside of work I am a trustee for Headway Thames Valley. The majority of my day job is obtaining compensation for those who have suffered a head injury and I wanted to become more involved in this area on another level and help those who don’t necessarily have the benefit of a compensation claim. Headway Thames Valley is a local head injury charity, supporting not only those with a head injury but their families too – the majority of these people do not receive assistance as part of a legal claim so it is so rewarding to be able to help those people in my local community.

What is the hardest part of your job?

The hardest part of my job is having to deal with all the changes that limit access to justice eg by severely limiting or in some cases totally excluding the recovery of costs so that innocent victims lose some of their compensation – which is often needed for ongoing rehabilitation or to cover lost past or future earnings.

What one piece of advice would you give to someone who has suffered a personal injury?

If you have suffered a serious injury as a result of an accident that wasn’t your fault make sure that you find a good lawyer who has experience of dealing with claims like yours. It’s not all about the final sum received at the conclusion of the case – we help to obtain rehabilitation as soon as possible -  both emotionally and physically – to optimise your recovery and get you back to living a full a life as possible.

Describe your average day in three words:

There is no average day! But I do find each day interesting, rewarding – and busy!

To find out more about how the team can help you or to ask about making a claim contact them by email at personalinjury@boyesturner.com.

Delays in diagnosis and treatment of cervical cancer can be fatal or can result in the need for radical treatment with ongoing side-effects such as pain, premature menopause, impaired bowel and urinary function, painful sexual intercourse, fear of recurrence and psychological damage.

What side-effects from late-treated cervical cancer can be compensated?

We can usually help clients recover compensation for these aspects of their injury but we know from our clients that one of the consequences of late-treated cervical cancer that they find most difficult to come to terms with is loss of their fertility, particularly in younger women who were hoping to have their first or further children in the future. Whilst fertility treatment options are available, such as IVF treatment, some women are not suitable for such treatment and, if they are to have a child of their own, need to have a surrogate.

Until recently, whilst it was possible to recover compensation for many aspects of a late-treated cervical cancer injury, it was not possible under English law to claim for the costs of surrogacy which was needed owing to infertility caused by the delay in treatment for cervical cancer. This left many seriously injured women without an effective remedy for one of the  most distressing consequences of their injury.

How has the law changed to compensate for surrogacy costs?

In 2018 there was a development in the law which opened the way for surrogacy costs to be successfully claimed where a woman has been left infertile as a result of a delay in diagnosing cervical cancer.

The medical negligence case of XX v Whittington Hospital NHS Trust concerned a young woman of 29 whose diagnosis of cervical cancer was negligently delayed by four years. As a result of the delay, she needed more radical treatment than she would have had if her condition had been properly managed. She underwent chemo-radiotherapy which caused irreparable damage to her uterus and ovaries. The woman and her partner wished to have their own biological children using a surrogate. To do this they wanted to go to the USA for surrogacy treatment and, therefore, wished to claim the costs of this.

When the case first came to court, the injured woman was awarded the costs of UK-based surrogacy for two pregnancies but was refused the additional costs associated with surrogacy in the USA. She successfully appealed the court’s decision and was awarded the costs of undergoing surrogacy in the USA.

Boyes Turner’s medical negligence specialists have helped many severely injured women and bereaved families recover compensation following misdiagnosed, delayed or incorrectly treated cervical cancer. We understand the emotional, psychological and physical damage that these injuries cause to the women and their families and welcome this recent development in the law which we hope will open the way for more women in this situation to begin to rebuild their lives by being able to have a child.

If you have suffered serious injury or family bereavement as a result of negligent diagnosis or treatment of cervical cancer and would like to find out more about making a claim, contact us by email at mednegclaims@boyesturner.com.

Hospices provide invaluable assistance and support to those suffering with mesothelioma and other asbestos-related diseases, particularly at the end of life, as well as their families.

Usually run as independent charities or charitable trusts, Hospice’s receive little or no funding from the NHS or local authorities. They rely on donations and, in a difficult economic climate, find it increasingly hard to raise the money that they need to continue their work and meet local community needs.

We, therefore, make sure we include a claim for hospice fees in the compensation claims of all of our clients who have had hospice care.

How does it work?

Although hospice care is free to the patient, when we act for someone suffering with an asbestos-related disease who has had some hospice support, either as an in-patient or at home, we will look to include the hospice’s costs, excluding any NHS-funded element, in the claim for compensation. If the claim is successful, we can then reimburse the hospice their charitable outlay.

What will the hospice need to do?

We will contact the hospice directly and ask them to provide a letter or statement giving details of:

• All admission and discharge or home care dates for the patient;
• A breakdown of the cost of care provided during each admission or home care;
• The percentage of the hospice’s funding from charitable donations.

If the claim is successful, we will ensure that the hospice is reimbursed in accordance with the sum agreed or awarded in respect of the charitable hospice costs. This does not mean that the compensation paid to our client is reduced, as the hospice costs are added into the claim. 

The amount recovered for the hospice will be paid direct to the hospice at the conclusion of the claim to enable the hospice to continue doing the valuable work they do for those affected by asbestos exposure and facing the end of their lives.

What should you do next?

We are happy to discuss the possibility of bringing an asbestos compensation claim with you, without any obligation on you to take matters further.

There are time limits to issue court proceedings so contact us for advice as soon as you can.

Our mesothelioma and asbestos claims solicitors specialise in claims for asbestos-related diseases such as mesothelioma, asbestos –related lung cancer, asbestosis and pleural thickening.

Cases with successful recovery of hospice costs

Payment recovered for hospice through mesothelioma compensation claim

£40,000 compensation from diagnosis of pleural thickening

According to Tommy’s, the largest charity which funds research into the causes of miscarriage, stillbirth and premature birth, there are, sadly, nine stillbirths every day in the UK. That adds up to too many families each year affected by the tragic loss of an expected baby, often with no clear explanation as to what caused their baby’s death.

What is stillbirth?

The NHS defines stillbirth as a baby that is born dead after 24 completed weeks of pregnancy. If the unborn baby dies before 24 completed weeks, this is known as a miscarriage or ‘late fetal loss’.

The cause of the stillbirth may be unexplained. Stillbirth may be caused by problems with the placenta or the mother’s health. In a baby that was known to be healthy immediately before birth, it can also have been caused by negligent management of the delivery. Unfortunately, many bereaved families are left not knowing why their baby was stillborn.

What is a Coroner’s inquest?

An inquest is a judicial inquiry led by a coroner. The purpose of an inquest and the coroner’s role is to find out what caused a person’s death. Unlike a clinical negligence claim, a professional disciplinary hearing or criminal proceedings, the coroner’s role is not to blame anyone but to consider the facts surrounding a person’s death.

As the purpose of an inquest is specifically not to attribute blame, it is hoped that witnesses will tend to be more open and transparent with the coroner than they might be in other judicial circumstances, which can make the process easier for a family to go through. The witnesses can include any clinicians involved in the person’s care prior to their death, and the inquest gives families an opportunity to ask the clinicians involved any questions they might have about the circumstances of their loved one’s death.

Will there be a Coroner’s inquest after stillbirth?

Under current law, in certain circumstances, the coroner has a duty to open an inquest into deaths of adults, children and babies who were born alive. If it is not clear whether the baby showed signs of life at the time of birth, then a coroner may investigate that, but the coroner has no power to investigate stillbirths.

Where the unborn baby appeared healthy during the pregnancy but the baby was stillborn, the hospital or Healthcare Safety Investigation Branch (HSIB) may carry out its own investigation into the stillbirth but the Coroner has no power to do so. This means that significant numbers of families each year are left with unanswered questions relating to the circumstances leading up to the stillbirth of their previously healthy child. This only adds to the emotional and psychological impact of the stillbirth, making it even more difficult to come to terms with what has happened and causing stress and anxiety in future pregnancies.

What is the government doing about stillbirth?

The government has pledged to halve the number of stillbirths in England by 2025. The Maternity Safety Strategy aims to make pregnancy safer by improving maternity care and learning from mistakes so that fewer people will experience the tragedy of losing a child.

The government recognises that many parents have raised concerns about the inconsistency of maternity investigations and have called for a more transparent and independent system to investigate when things go wrong.

As part of the government’s wider plans to help prevent future stillbirths and improve maternity care they are considering giving coroners new powers to investigate stillbirths.

What will the proposed changes allowing inquests for stillbirths do?

If the proposed changes to coroners’ inquests for stillbirths go through:

• coroners will have powers to investigate all full-term stillbirths (from 37 weeks of pregnancy);
• the coroner will consider whether any lessons can be learned which could prevent stillbirths in future;
• coroners will have an independent right to investigate stillbirths – they won’t need consent or permission from anyone else;
• coroners’ investigations will not replace any of the investigations which are currently undertaken by hospitals or NHS agencies (such as HSIB) in stillbirth cases;
• any reviews carried out by other organisations, such as HSIB, may form part of the coroner’s investigation into a stillbirth;
• coroners’ inquests and investigations into stillbirths will follow the same rules that apply to other types of inquest, allowing them to:
  • compel witnesses to give evidence;
  • call for disclosure of documents;
  • order relevant medical examinations, such as post mortems, of the stillborn baby and placenta;
  • retain legal custody of the stillborn baby’s body whilst needed for the investigation.
• The proposals would apply in England and Wales.

The government’s Consultation into Coronial Investigations (i.e. Inquests) of Stillbirths

The Ministry of Justice and the Department for Health and Social Care have issued a joint consultation seeking views from a wide range of people, including bereaved parents, support and advice organisations, researchers, health professionals and healthcare providers, about whether coroners should be given powers to investigate stillbirths.

What benefits could a coroner’s inquest give to a family bereaved by stillbirth?

Boyes Turner’s clinical negligence specialists have helped many families who have been affected by stillbirth. We know how deeply upsetting these heart-breaking events can be for families and understand the severity of the related psychological injury that is often suffered by the mother of a stillborn child.

Where there are grounds for a medical negligence claim, a successful claim leading to an admission of liability can be helpful to a grieving family, as it may provide an explanation as to what has happened, but depending on the circumstances of the stillbirth, admissions can often come too late, at the end of a long and emotionally challenging journey for a family.

In the majority of stillbirth cases which do not involve additional injury to the mother, the level of compensation that the law provides for the loss of the baby alone appears insultingly low considering the tragic circumstances involved. Many bereaved parents in these circumstances find compensation to be of little comfort and a clinical negligence claim is often financially unviable.

In such circumstances, an independent inquest can help families to understand what has happened, providing parents with vital information about what went wrong and why, which they might not have access to from any other source. Bereaved parents would be able to have their voices heard in the investigation, ask questions of witnesses and take some comfort in being involved in the process which identifies lessons to be learnt as set out in the coroner’s recommendations, thereby playing a part in the prevention of future stillbirths.

The Consultation into Coronial Investigations of Stillbirths closes on 18th June 2019 and can be accessed on the government’s website here.

The recent case of NKR v The Thomson Snell and Passmore Trust Corporation Ltd [2019] EWCOP 15 concerned an application to the Court of Protection for the discharge of the appointment of an existing professional property and affairs deputy and the appointment of another instead. The discharge of the existing deputy was agreed but there was an issue as to who should be appointed instead.

Background 

MBR was 12 years old and sustained cerebral palsy as a result of medical negligence shortly after his birth. MBR had received a significant personal injury award of damages and in anticipation of the award, a property and affairs deputy (Wrigleys Trust Ltd) was appointed in 2012. However, difficulties arose and MBR’s mother made an application to the Court for the deputy’s discharge and her own appointment as deputy instead. Ultimately, the Wrigley Trust Ltd appointment was discharged and the Thomson Snell and Passmore Trust Corporation Ltd appointed as deputy in 2017.

MBR’s mother made a further application to the Court in 2018 for the replacement deputy’s discharge and her own appointment as deputy but this time a joint appointment with Ms Sood who described herself as a “Direct Access Barrister.”

The deputy agreed that the relationship with MBR’s parents had broken down “to such a degree that we no longer believe that we are able to act in MBR’s best interests.” However, given various concerns around MBR’S finances, the deputy felt that a suitably qualified and experienced professional deputy should be appointed in their place.

The application went to a Dispute Resolution Hearing.

As a result of the hearing, it was agreed that MBR’s mother no longer sought her own appointment as deputy but no agreement was reached as to who should be appointed as replacement deputy. MBR’s mother wished for Ms Sood to be appointed and her second choice was a particular panel deputy, Mr Kambi. These preferences were based on MBR’s mother considering they had a good understanding of the family’s cultural and religious beliefs. The deputy preferred the appointment of Mr Kambi rather than Ms Sood due to his experience. Therefore, the Court was left to consider whether Ms Sood or Mr Kambi should be appointed as deputy.

Directions were made for further evidence and statements. The matter was then referred to the judge for consideration on the papers.

The Court’s decision

The Court must be satisfied that the person whose appointment is under consideration is capable of discharging the responsibility properly.

In the earlier case of Re AS; SH v LC [2012] MHLO 113 (COP) Senior Judge Lush set out “generally speaking” an order for preference of candidates for appointment as deputy. In this order for preference, a panel deputy is included “as deputy of last resort” after a “professional adviser, such as the family’s solicitor or accountant.”

The judge was not aware of any previous appointments of a barrister as professional deputy. Based on the information presented, the judge was willing to accept Ms Sood was personally and professionally a suitable person to hold a deputyship. However, the judge also had to consider the alternate option identified in this case, the panel deputy, Mr Kambi.

The breakdown of two deputyships demonstrated this was a particularly challenging deputyship and the concerns of the current deputy appeared well founded.

Ms Sood had not confirmed her approach to the cost of insurance and the judge was concerned about the likely extra financial burden to MBR.

Taking into account all matters, the judge decided it was in MBR’s best interests for the panel deputy to be appointed as replacement deputy.

Do we still need professional deputies?

Whilst it is a true that you don’t have to have a professional deputy, no two cases are the same and sometimes there is no one willing to be deputy or able to do it.

If an individual has been injured and is making or has made a personal injury claim for compensation then there is a strong case for having a professional deputy. In fact, the Court is likely to insist on a professional deputy where there is or is likely to be substantial assets as the Court wants to be satisfied that money will be managed properly and that decisions are made in the individual’s best interests. The role of deputy can be onerous and involve dealing with complicated matters. A good professional deputy will work with you to make life easier. Professional deputies are experienced in handing large sums of money and dealing with the complex and often sensitive issues that arise from sustaining such an injury, for example purchasing and adapting a property and putting in place a care team, both during the claim and in the years that follow.

For more information on professional deputyship and how we can help please contact our Court of Protection team by email on cop@boyestuner.com.