|
M, a 54 year old man, underwent a radical prostatectamy
on 2 October 2000. Earlier that year M was diagnosed with
a well differentiated adenocarcinoma of the prostate. M was
a private patient and the surgery was performed by Mr Kaisary,
a Consultant Urological Surgeon. Following his operation M
suffered substantial internal bleeding. The extent of the
haemorrhage was not detected until M suffered a major cardiac
arrest.
M’s claim was that the First Defendant and/or agents
of the Second Defendant knew or ought to have known that M’s
condition was unstable in the post operative period and they
failed to adequately monitor and diagnose M’s deteriorating
condition and administer the correct treatment.
At 12.30 am on 3 October 2000 M arrested and was taken back
to the operating theatre, and following further investigation
and treatment M has been diagnosed as suffering permanent
brain damage and psychiatric symptoms. The brain damage has
prevented M from returning to his job as Head of IT for a
life assurance company and has left him with a significant
disability and with a tendency to suffer from depression.
A Claim Form was issued on 29 September 2003 within the primary
limitation period. The claim was initially brought against
Mr Kaisary for negligence and breach of professional duty
when performing the operation. M believed that the nursing
and support staff who assisted Mr Kaisary with his operation
and aftercare were employed by Mr Kaisary and concluded that
Mr Kaisary was therefore vicariously liable for the actions
and or omissions of his assisting staff. The Claim Form and
Particulars of Claim were served in January 2004. It later
transpired that the staff assisting with M’s treatment
were acting as servants or agents of the Second Defendant.
Subsequently on 29 July 2004 when M’s solicitors issued
an application notice which in part sought to add the Royal
Free Hampstead Trust as an additional defendant to the action
pursuant to CPR 19.5 (3)(b) and (4) outside of the relevant
limitation period.
On 23 September 2004 Mr Justice Simon ruled that the Royal
Free Hampstead Trust could not be joined as a party pursuant
to CPR 19.5(2) and 3(b) as the M had not proved that the addition
of a second defendant was ‘necessary’ under the
definition given in R.19.5(3)(b). However, he ordered a trial
of a preliminary issue in relation to whether the claim against
the second defendant was barred by the provisions of s.11
and/or 14 of the Limitation Act 1980, and if so whether the
action should be allowed to proceed under s.33 of the Limitation
Act 1980.
The Court of Appeal agreed with Mr Justice Simon’s decision
in relation to M’s argument under CPR 19(5)(3)(b) but
Mr Justice Hodge allowed the second defendant to be added
to the claim under to CPR 19.5(4) ruling in favour of the
Claimant under sections 11 and 14 of the Limitation Act 1980,
as reported in his Judgment on 5 April 2005.
Numerous expert medical witnesses were instructed to prepare
reports on liability and causation and condition and prognosis.
The experts included:-
· Consultant Anaesthetist
· Consultant Urologist
· Consultant Neurologist
· Consultant Neuropsychologist
· Consultant Neuropsychiatrist
· Nursing Expert
A Case Manager was also appointed to manage M’s care
regime.
The case progressed and a trial date was fixed for 19 June
2006 with a time estimate of 5 days. On 19 April 2005 the
Claimant made a Part 36 offer of 95% of damages of £1
million which was rejected by the Defendant.
The Second Defendant admitted in their Defence that on the
evening of 2 October 2000 there had been a breach of their
duty of care. On 31 January 2006 a hearing was listed to deal
with M’s application for summary judgment, and to seek
an interim payment of £75,000 against the Second Defendant
and to make various amendments to the case management timetable.
The hearing in relation to the applications was adjourned
because the Second Defendant made a cross application to serve
causation evidence 9 weeks out of time. On 6 March 2006 M’s
application was heard and M was successful in his application
for summary judgment and was awarded an interim payment of
£20,000.
On 10 March 2006 the Defendants made an offer to settle for
£600,000. M rejected this offer, and made a counter
offer of £800,000 on 17 March. Again, this was rejected
by the Defendants who then increased their offer to £700,000.
After an additional three offers were rejected by both parties,
on 29 March 2006, shortly before discussions between the experts
were due to take place in respect of liability and causation,
the parties settled the claim for £750,000 plus reasonable
costs to be assessed if not agreed.
|
