Vance (A Minor) v Health Service Executive
| Jurisdiction | Ireland |
| Judge | Mr. Justice Cross |
| Judgment Date | 16 February 2017 |
| Neutral Citation | [2017] IEHC 145 |
| Docket Number | [2009 No. 10043 P.] |
| Court | High Court |
| Date | 16 February 2017 |
[2017] IEHC 145
THE HIGH COURT
Cross J.
[2009 No. 10043 P.]
Health – Medical negligence – Damages and restitution – Assessment of level of required care – Costs of care – Cerebral palsy – Nature of damages – Expert evidence
Facts: The plaintiff/minor was suffering from cerebral palsy and required extensive care under the supervision of professionals. It had been accepted by both the parties that all future care needs of the plaintiff had to be professionally funded. The key issue arose as to the basis of assessment of finances required to fund the care of the minor. The mother of the minor patient contended that keeping in mind the condition of the minor, more than two carers were required. The defendants contended that the treatment chosen and claimed by the plaintiff had been unreasonable.
Mr. Justice Cross granted the relief sought by the plaintiff. The Court took cognizance of the expert evidence as well as the practical evidence of the consultants and held that the two carers were required as one of them would be a sleeping carer. The Court accepted the plaintiff's claim for the number of carers as being reasonable. The Court awarded the damages by assessing the nature and extent of the costs of care required by the plaintiff annually on the basis of life expectancy of the plaintiff and held that the average life expectancy of the plaintiff on calculation would be for an additional 13 years.
The plaintiff was born on 13th January, 1998. At birth she suffered a very severe hypoxic ischaemic insult as a result of which she developed severe cerebral palsy in the form of spastic quadriplegia.
Amy and her mother reside near Lifford, Co. Donegal with two younger half siblings of Amy. The plaintiff's next friend is not working and has not worked since Amy was born. Prior to that she worked in a factory job nearby. Amy's father is not living with Ms. Midleton.
By a settlement entered into between the parties dated 1st December 2011 the proceedings against the second named defendant were struck out and the second named defendant entered into a settlement providing for the payment of a total of €1,165,677, for the plaintiff's general damages loss of earnings travel expense to date retrospective care costs of external works and an extension to a bungalow and the future aids of appliances future GP visits and costs of further surgery if any. In addition a sum of €70,000 was provided for the cost of care for the plaintiff for two years from 1st December 2011. The defendants admitted liability.
On 16th April 2012 the plaintiff made a Ward of Court.
Notwithstanding that the costs of future care had only been provided for two years, the matter appeared in the List again, on 9th July, 2015, and an interim settlement was initially provided for up to 1st December, 2016.
The matter then came for hearing before me on 24th January, 2017, and by agreement between the parties and pursuant to the terms of the original settlement the matter to be determined was to the cost of the future care of the plaintiff for the remainder of her life.
There were two issues in the case before me (a) was the nature and extent and costs of the care required on an annual basis for the plaintiff; and (b) was the life expectancy of the plaintiff.
Up to date the substantial nature of the plaintiff's care has been provided by the plaintiff's mother and next friend. It is accepted by both sides that all the future care needs of the plaintiff must be professionally funded and that is it not appropriate for the plaintiff's mother and next friend to be required to provide any of the special care that Amy needs into the future.
The plaintiff has a history of severe quadriplegic cerebral palsy with spasticity dislocated left hip and evolving neurogenic kyphoscoliosis. She has a profound mental handicap impaired hearing blindness inability to communicate meaningfully at all save rudimentary recognition it seems of her mother. She can also show when she is in distress. She has a history of epilepsy which is now controlled by medication. Her swallowing is significantly impaired. Her drooling is constant and has worsened. She coughs while she is being fed. She has gastro-oesophageal reflux. She has fecal urinary incontinence and a genitourinary reflux for which she requires ongoing anti-biotic treatment to prevent urinary tract infections. The plaintiff has sleep apnoea and requires an oxygen mask at night. The plaintiff cannot move herself at all and her condition has worsened recently. She is fully dependent for all personal activities of daily living and requires 24 hours care. The plaintiff is fed orally by her carers. It is possible that a peg feed may be inserted in future, if this can be done by a local anaesthetic.
The plaintiff is transferred by means of an electric hoist to and from her bed and to and from her wheelchair. The defendants agree that the plaintiff requires two carers for any transfers, as she is incontinent she requires to have nappies changed and two persons are required for this and for all hoisting. The defendants contend that the appropriate level of care could be accommodated by one carer full time and an extra carer for four hours a day on those days when Amy attends a day centre (which she does from Monday to Thursday) and six hours a day on the days i.e. Friday, Saturday and Sunday when she does not. The plaintiff, however, contends through her expert witnesses that she requires two carers all the times she is not at the day centre. The times when the plaintiff requires two persons to lift and manoeuvre are not predictable and there maybe times when she will need the two carers at irregular times when it is necessary to have a transfer or do things such as changing a nappy or the like and accordingly it is contended that it is necessary for two carers to be present at all times in order to fulfil the agreed requirements that the plaintiff's mother should not be required to provide any of this case.
At night time the plaintiff contends for one waking carer and one carer who will be asleep. The defendants state that there need only be one carer at night and they have provided in their costings for some extra hours throughout the year to cater for any emergencies when a second carer could be called.
There are also some other differences between the parties in relation to the need for a Case Manager and other attendees which I shall discuss in greater detail hereafter.
Suffice it to say it is accepted by both plaintiff and defendants that the plaintiff's mother should not be required to provide the care for Amy that she has been doing up to now. It is accepted that at all times any care for Amy ought to be provided by the defendant and what is in issue is the detailed costings of the care and also the level required. Though the difference between the parties is in theory quite limited, the practical consequences in terms of the award are significant.
Though the original settlement in 2011 provided for money for accommodation improvements for the plaintiff was only provided quite recently due to difficulties in planning and builders. The accommodation improvements were relatively modest being rooms off the plaintiff's bedroom providing for sleeping accommodation etc. for carers. After the completion of the accommodation, a system of carers has been put in place by the Irish Wheelchair Association (IWA) in consultation with the plaintiff. The plaintiff attends day care on Mondays to Thursdays and this is likely to continue for the rest of her life. At present, two carers are provided by the IWA on Friday morning at 9am and two carers remain in place until 9:30 on Sunday night.
During the weekdays, when Amy is at the day centre, two carers come in at 9am until 11am and the plaintiff's mother looks after Amy in the weekdays when she returns from the day centre.
I had the benefit of hearing the evidence from the plaintiff's next friend and mother and seen a short video of Amy being transferred by two assistant as well as hearing from the experts on both sides.
I have previously set out in Gill Russell v. HSE (18th December, 2014), the basis of assessment of costs of future treatment or care. I approved the statements of Gillen J. in K.D. (A Minor) v. Belfast Social Health and Care Trust [2013] NIQB 78:-
'What has to be first considered by the court is not whether other treatment is reasonable but whether, given the needs of the plaintiff, the treatment chosen and claimed for by the plaintiff is reasonable.'
Indeed in this case, counsel on both sides indicated agreement that the principle that the court must be concerned with is not whether any other identified treatment or care plan is reasonable but whether that plan as chosen by the plaintiff is reasonable, recognising that a plaintiff or those looking after him are entitled to make a choice. This is an aspect of the basic principle that a defendant is obliged to put a plaintiff back insofar as money can into the position he would have been but for their negligence.
To adopt an approach which, in effect, looks at proposals from the plaintiff and proposals from the defendant and in some way 'takes an average' is fundamentally incorrect. It has been described as paternalism by Pill L.J. in Sowden v. Lodge [2005] 1 WLR 2129 at 2144 (38):-
'paternalism does not replace the right of a claimant, or those with responsibility for the claimant, making a reasonable choice....'
Accordingly, the approach is as outlined by Irvine J. in Lennon v. HSE [2014] IEHC 336...
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