Patel v Wright & Anor

The Claimant was born on 16 April 1971. On 16 August 2001 he sustained catastrophic head injuries in an accident at work. At the time of the accident he was married to his current wife Miksha Patel. They had not had any children but hoped eventually to do so.

Consequent upon the severe brain injury sustained by the Claimant these proceedings are brought by his wife and litigation friend. Further, the Claimant’s case is under the jurisdiction of the Court of Protection.

The Claimant’s head injuries were very grave. He suffered a large left fronto-temporal subdural haematoma. There were contusions and lacerations to the underlying brain. There were skull fractures. He needed emergency surgery followed by support on a ventilator. He later had a tracheostomy. During his first 24 hours post accident his highest score on the Glasgow Coma Scale was 7.

It is now approximately 3½ years since the accident. The history of treatment can be summarised as follows:

During the period since his accident it has been necessary from time to time for the Claimant to undergo various operations or procedures. He has throughout been the recipient of measures aimed at his rehabilitation.

The Claimant’s current position is that his severe brain injury has left him severely disabled and dependant on carers for all of his activities. His on-going disabilities can be summarised as follows: -

Whilst at the TLU in Putney the Claimant’s condition has shown some improvement in relation to communication and mobility. These improvements are not unexpected and, if maintained, would improve the Claimant’s quality of life somewhat. However, the Claimant’s level of disability, which is agreed to be severe, will be permanent, and the improvements seen will not affect the Claimant’s level of care needs. There will be no neurological improvement. The Claimant will for the rest of his life require a 24 hour care package.

The probability is that the Claimant will remain resident at the TLU in Putney until his discharge to a recently purchased house in the Watford area. The house is undergoing a process of adaptation so that it will meet the needs of the Claimant, his wife and the carers who will need to be in 24 hour attendance upon the Claimant. The likelihood is that the Claimant will be discharged in about 6 months time.

The care plan agreed between the parties for the Claimant on his discharge recognises that round the clock caring support is needed involving a Case Manager, a Team Leader and individual carers. It is not envisaged that Mrs Patel will form part of this package. She will, of course, be resident with her husband in the new house, but she has her own career as a management accountant.

I wish to record my admiration for Mrs Patel’s devoted care and attention towards her husband since his accident. She has, at a great personal cost, supported him, cared for him and done all in her power to assist him whilst at the same time maintaining responsible employment.

On the 26 January 2004 the Claimant’s action in negligence was compromised by agreement before Mr Justice Hughes who approved an acceptance of liability by the Defendants subject to a reduction of 25% in respect of contributory negligence on the part of the Claimant. That agreement, therefore, left damages to be assessed.

Since January 2004 there has been further substantial agreement between the parties as to damages so that very many matters have been resolved subject to the approval of the Court. It is indeed the case that certain matters, previously not agreed, have resolved themselves during the course of the hearing before me. The parties agree that the question of the Court’s approval of the agreed matters should not be considered until I have ruled on those matters which have not been capable of resolution and upon which I shall rule in this judgment.

With that somewhat lengthy preamble I can now identify the items which still remain in dispute.

The Claimant relied on the evidence of Mr Derar Badwan, Consultant in Rehabilitative Medicine. The Defendants relied on Dr Richard Greenwood, Consultant Neurologist, and Professor David Strauss, Emeritus Professor of Statistics and Director of the Life Expectancy Project at the University of California San Francisco. All three gave oral evidence before me in addition to their various reports. The Claimant and Defendants adopted different approaches to their calculations of life expectancy.

The final positions reached were that the Claimant was contending for a life expectancy to about 76 years. The Defendants argued for around 67.5 years.

The Claimant reached his figure by relying on Mr Badwan’s view that the Claimant’s life expectancy would be “reduced by 7 years as an upper limit”. It is agreed that for a man of the Claimant’s age, life expectancy, unimpaired by the injury, disability and problems which now beset the Claimant, would be to 82.9 years according to the most recently published life table for England and Wales. This is the PIBA Expectation of Life Table for England and Wales (B3). Accordingly, a figure of 75.9 years is said to be appropriate to the Claimant after deducting the 7 years referred to by Mr Badwan.

Mr Badwan said his reduction figure of 7 years was primarily based upon his clinical assessment of the Claimant’s condition. Of the various risk factors which reduce life expectancy in a case of this sort, he assessed immobility as the most significant. In the light of recent improvement in mobility which enables the Claimant to walk for a few metres with the help of a tripod and a carer in attendance, Mr Badwan felt that the potential threat from immobility was reduced. This was particularly so in the context of a good care and rehabilitation regime of the type proposed for the Claimant. Other risk factors such as late onset epilepsy, problems with feeding or swallowing and recurrent urinary tract or chest infections were not of great significance in this case either because of control of drugs or because the Claimant has not suffered from any problem of substance in those areas.

In coming to his conclusion Mr Badwan said he had taken account of a paper published in 2004 by Cynthia Harrison-Felix and others entitled “Mortality following Rehabilitation in the Traumatic Brain Injury Model Systems of Care”. Mr Badwan said he relied on the finding that individuals with traumatic brain injury (TBI) were twice as likely to die compared with individuals in the general population of similar age, gender and race, resulting in an estimated average life expectancy reduction of 7 years for individuals with TBI. It was this which had influenced him to alter his view expressed in August 2004 that a reduction in life expectancy of 4 to 5 years “at most” was appropriate, to his view at trial of a reduction by “7 years as an upper limit”. Mr Badwan disavowed reliance on another recent paper by Allen W Brown and others, “Long-term survival after traumatic brain injury”, so it is unnecessary to deal with that further.

Mr Badwan was criticised on behalf of the Defendants for a failure to understand and apply the Harrison-Felix paper. In particular, he had wrongly taken the Claimant to be at the level of the average individual in the Harrison-Felix paper. His reliance on the paper was, in his own words, “to a considerable extent” in coming to his conclusion. It follows that if his appreciation or application of the paper’s findings was flawed, it must impact upon his opinion as to the level of reduction in the Claimant’s life expectancy.

I find that the Defendant’s criticisms of Mr Badwan’s understanding of the paper are well founded. In particular

I find that Mr Badwan was in error in relying on the average reduction of 7 years in the Harrison-Felix paper in the Claimant’s case. For the reasons summarised in the preceding paragraph, the Claimant’s position does not equate with the average discussed in that paper, but is worse. It follows that since this paper was an important factor in the view advanced by Mr Badwan, his opinion as to the reduction of life expectancy is an underestimate. In so concluding I have not lost sight of Mr Kent QC’s closing submission that, although Mr Badwan’s approach to the paper was flawed, his view as a clinician should still carry weight. In particular, he submits that I should give much weight to the Claimant’s improved mobility and his prospects of a high standard of care for the future alongside the low risks from late onset epilepsy, feeding and swallowing problems or infection problems. Although I have taken account of those matters, I still conclude that Mr Badwan’s assessment of life expectancy is too optimistic.

I turn next to consider the evidence on this issue for the Defendants, and deal first with Dr Greenwood. Dr Greenwood’s view was that life expectancy is “reduced to between 65 and 70 years of age”. This represented his final pre-trial position. At trial he commented that, if anything, this was generous to the Claimant in the light of his consideration of the Harrison-Felix paper, adding that the figure was “not an underestimate”. He criticised Mr Badwan’s reading of the Harrison-Felix paper broadly on grounds which I have concurred with above. He acknowledged that between August 2004 and January 2005 he had increased his assessment from “a life expectancy beyond the age of 65 years seems unlikely” to “life expectancy is reduced to between 65 and 70 years of age”. He explained the increase as taking into account:

Dr Greenwood acknowledged that the Claimant’s condition was non-progressive, and that risk from factors such as late-onset epilepsy, infection, feedings and cognitive impairment were relatively low, particularly when the Claimant will receive high levels of care and rehabilitation, as well as appropriate medication to combat seizures. The major risk factor, as he saw it, was the Claimant’s relative immobility.

However, Dr Greenwood acknowledged that between August 2004 and January 2005 there had been an improvement in the Claimant’s mobility. He conceded that that had not been a factor in his upgrading of the Claimant’s life expectancy – see Paragraph 22 above. He took the view that whilst increased mobility would in general be good in terms of increased life expectancy because, for example, it would reduce the risk of cardio-vascular problems, he would not ascribe to it any overall positive impact on life expectancy since increased mobility would bring with it the increased risk of a harmful fall.

In my view, Dr Greenwood’s analysis was not convincing on this point. He gave too much weight to the increased risk of falling when set amongst the general benefits of improved mobility. This is especially so when it is recalled that the Claimant will never be independently mobile. His walking will have to be done with a tripod or other support and under the close supervision of a carer. In these circumstances, I consider that Dr Greenwood has overstated the potential downside of increased mobility, namely an increased risk of falling. It follows that Dr Greenwood has failed to give weight in his calculations to the factor of improved mobility in a context where mobility (or lack of it) is agreed to be a significant factor in assessing life expectancy.

The Defendant also relied on the evidence of Professor Strauss, a statistician. I have reminded myself of what the Court of Appeal said about such evidence in The Royal Victoria Infirmary NHS Trust v B (A Child) [2002] Lloyd’s Rep Med 282.

Professor Strauss is a leading statistician who has carried out very extensive work on survival and life expectancy including those who have suffered brain injury. He had performed an exercise to predict life expectancy for a group said to be in a similar position to that of the Claimant. His conclusion was this produced a life expectancy to 68.9 years for someone in the Claimant’s situation in terms of a range of abilities and disabilities. This figure produced in February 2005 represented an upgrading of an earlier lower figure so as to take account of the recent publication of the 5^th Edition of the Ogden Tables which gives higher projected life expectancy figures than the previous edition.

Professor Strauss’ methodology was subjected to careful scrutiny in cross-examination. In particular Mr Kent QC challenged the assertion that Professor Strauss’s analysis showed that the Claimant’s pattern of abilities and disabilities were reasonably representative of the comparison group.

No doubt the process of accumulating a reasonably comparable comparison group is difficult even for a man of the skill and expertise of Professor Strauss. A wide range of abilities and disabilities are factored into the total picture. The process involves two stages (i) assumption as to the Claimant’s abilities; (ii) assessment of the capabilities of the proposed comparators. It is to be noted that one of the assumptions made about the Claimant’s abilities was “does not walk”. This means that the Claimant was assessed as being unable to walk using support. It is not in dispute between the parties that the Claimant is now able to fulfil this criterion. However, it is not a factor comprehended by the Strauss study. Following from this assumption, the comparison group was created including as one criterion of selection those who could not walk. There were other criticisms made of the process and in particular the potentially subjective nature of assessment of abilities for the purpose of creating the comparison group. I think it likely that those other criticisms would balance one another out overall. However, it does seem to me that the pessimistic assumption made for the purpose of the exercise that the Claimant “does not walk” would have affected the value of Professor Strauss’ work and have led to some under-calculation of the Claimant’s life expectancy.

It will be seen that I have concluded that neither side’s case on the life expectancy issue survives unscathed. However, in assessing the damage done to each side’s contentions, it seems to me that the greater damage was done to the case advanced on behalf of the Claimant. Mr Badwan’s failure to appreciate the effect of the Harrison-Felix paper seriously undermines his figure. He has underestimated the effect of the Claimant’s score on the Disability Rating Scale achieved some 3½ years post accident, and he has wrongly regarded the Claimant as falling within the range of the average individual within the paper when in truth his position is significantly worse. It was pointed out with some force that even after discharge from rehabilitation at Northwick Park some 250 or so days post-injury, the Claimant’s Disability Rating Score was 16 compared to the average of 6 after a maximum of 93 days on the American study. Even now after further rehabilitation the Claimant’s score is 10 which represents a marked deficit from the study’s average of 6.

The justifiable criticisms of the Defendants’ witnesses do not in my view have equivalent impact. Dr Greenwood gave a range with a mid-point of 67.5 years, but failed to take account of increased mobility. It seems to me that it is right to bear in mind that the improvement in mobility, whilst welcome, is in relative terms. The Claimant cannot walk freely, unsupervised or for more than maybe 10-15 metres, and this only after lining up his wheelchair alongside some point of support and moving slowly to a standing position. Professor Strauss in a letter dated 29 July 2004 referred to an allowance of about a year for improved mobility which Mr Kent QC adopted in his closing submission.

I have to determine the Claimant’s life expectancy in the light of his injuries and resultant disabilities, making the best estimate I can as to how long he can be expected to live. My assessment is that the Claimant’s life expectancy is to 70 years. This represents the top end of the 5-year bracket proposed by Dr Greenwood and as such reflects his failure to allow for increased mobility. This figure fits with the exercise carried out by Professor Strauss after making an allowance for his failure to take account of the true state of the Claimant’s mobility. It is a figure which in my judgment also reflects the significant and substantial mis-assessment by Mr Badwan.

The Claimant is 33.87 years old. On the basis of this judgment he has a remaining life expectancy of 36.13 years. Turning to Ogden Table 28 (5^th Edition) and applying the 2.5% discount rate results in a multiplier of 23.9.

The balance between waking and night care.

Should any part of the agreed 20 hours per week input from the Team Leader involve hands on care?

During the first 3 months after the Claimant’s discharge from the TLU at Putney, should the Claimant’s care package at home involve 24 hour waking care?

Should there be an additional allocation of hours for Case Management during the first 12 months after discharge from the TLU?

I should record in relation to multipliers relating to care (as opposed to case management) it has been agreed that a reduction of 0.33 of a year should be applied to the multiplier to take account of the fact that that element of the agreed package will not come into effect immediately.

Mrs Patel’s evidence was that prior to the accident it was the Claimant’s wish, in which she shared, to have children. She says she still wants children by the Claimant. She has discussed it with him on a number of occasions. She says that she has explained to the Claimant (who has understood) that he will need to provide semen under general anaesthetic. They would like to have two children. Mrs Patel would wish to wait for a while until the Claimant is settled at home before attempting conception. She estimates a period of 3 or 4 years. I accept that this evidence represents her current state of mind.

Dr David Sumners, a Consultant Psychiatrist, is of the opinion that the Claimant has, on balance, a sufficient level of understanding to indicate capacity to consent to such a procedure. I accept his evidence.

The Defendants say that I should look at the position as it will be in 3 or 4 years time, and that the position is speculative. They say that much can change with the experience of the care package 24 hours a day in the home in the intervening period. They agree there is merely a chance that the procedure will be adopted but that it is no more than that, and they submit that an attempt to conceive a second child is even more remote. They go on to say that even if a child is conceived it does not follow that a second one will still be wanted.

The Claimant’s case is that Mrs Patel’s current position on this issue will not change, nor is there any reason to believe that the Claimant’s will.

I have read the report of Mr Peter Brinsden, Consultant Gynaecologist, a specialist in reproductive medicine. Mrs Patel would, after the obtaining of semen from the Claimant, need to be artificially inseminated. The cost of a single process is £5000 - £6000, but usually a cycle of processes is necessary so that an agreed reasonable estimate for a single child (but without guarantee of successful conception) is £17500. The agreed figure for two children (on the same basis) is £32900.

I have to ask myself what the Patel’s intentions will be in 3 to 4 years time. I conclude that it is probable that they will have maintained their wish to have a child. They will have been in their own specially adapted home for a significant period; they will have had the benefit of a good quality round-the-clock care package; the very heavy burden of full-time work, extensive travel and care for the Claimant which Mrs Patel currently manages will have been significantly lifted. I think it likely that the Claimant will remain desirous of having a child. I think it probable that Mrs Patel will be of the same frame of mind. After all, if, after everything she has been through with the trauma of her husband’s accident, and the devotion of practically all her waking hours to her job or his needs, (as I find to be the case), she is presently of the mind that she would wish to have the Claimant’s child, she is in my judgment equally likely to be of that frame of mind when the current burdens have been eased.

The Claimant goes on to submit that I should find as a probability that thereafter the Claimant would still wish to try for a second child. It seems to me that whilst it is probable that the Patel’s will undergo the first cycle of treatments, it cannot be treated as a probability that they would undergo the second cycle. I have come to this conclusion for a number of reasons:

Accordingly under this head my award will be based on what I understand to be the agreed reasonable figure for a cycle of treatments referable to one child, namely £17500.

There is agreement that it is reasonable and appropriate for the Patels to have video telephones to enable better communication with one another. The annual capital cost of £33.33 is agreed. The Claimant seeks £600 per annum for call charges. The Defendants contend for £300 on the basis that call charge costs will inevitably reduce in the future. No evidence has been produced to this effect: the Defendants say the court should draw an inference that costs will reduce.

The sums which I have cited at various points in the judgment represent sums based on 100% liability. A reduction of 25% will need to be made to reflect the agreed proportion of contributory negligence.

I have not ventured into detailed calculations resulting from the findings made in this judgment. These findings will need to be applied to agreed items as well as those upon which I have ruled. It was agreed at the hearing that counsel would translate my rulings into agreed figures which can be put before me at the handing down of this judgment/the approval hearing. I believe I have covered all matters which remained in dispute by the end of the trial, but invite prompt correction if I have overlooked anything.

For the sake of completeness I wish to record that there was raised by the Defendants at trial a significant issue as to possible future funding of care by a local authority or an NHS Trust. Had the issue been successfully pursued by the Defendants it would have had a major downward impact on the care and case management element of this claim. The Defendants called or read a number of witnesses on this topic and the stage was set for extensive legal submissions on a substantial raft of legislation, regulation and ministerial guidance. In the end I did not have to resolve the point. At the end of the evidence and prior to closing submissions, Mr Jeffreys QC, on instructions, informed me that the Defendants were no longer pursuing any point in relation to public funding of the Claimant’s needs.