Michelmores Conclude Settlement of Bristol Royal Infirmary Brain Damage Claim

Laurence Vick clinical negligence partner at Michelmores, assisted by Michael Vian Clark, attended at the High Court in London today when Mr Justice Saunders approved the recent settlement of a long-running claim for damages for the severe brain injury suffered by a boy ("E"), now aged 13, after undergoing surgery to repair a CAVSD "hole in the heart" at the BRI paediatric cardiac unit in November 1994. 

The boy's parents from East Devon were in Court to hear the Judge approve the confidential terms of the settlement which had been agreed by the United Bristol Healthcare NHS Trust (UBHT) on the eve of what would have been a contested 2 week trial commencing at the High Court today.

It had been clear to the parents soon after the operation, carried out when their son was 7 months old, that he had suffered severe neurological damage.  The 1994 operation had been carried out by heart surgeon Mr Janardan Dhasmana who was subsequently found guilty of serious professional misconduct by the GMC.  Disciplinary proceedings were also pursued by the GMC against Mr James Wisheart the senior of the two surgeons operating at the unit and the Trust's Medical Director and the Trust's former chief executive Dr Roylance who were both found guilty of serious professional misconduct and struck off the medical register. 

Laurence Vick has been acting for the family from the outset.  He was also joint lead solicitor to the Public Inquiry for the 300 families in the Bristol Heart Children Action Group.  Although the GMC and Public Inquiry into the wide ranging problems at the BRI paediatric cardiac unit focussed on mortality rates and fatal outcomes, the boy in this particular claim became one of the 300 cases known as the "Bristol heart babies".

Michelmores had alleged in E's case that the operation had been carried out at a time when there was widespread, longstanding knowledge of the problems at all levels within the unit and, in particular, concerning the excessive mortality and morbidity (no-fatal failure) rates of Mr Dhasmana and Mr Wisheart.  In addition to specific allegations of negligence supported by experts they relied on evidence given to the GMC and Public Inquiry of increasing concern amongst medical staff at the BRI since the late 1980's, in particular after the consultant anaesthetist Dr Stephen Bolsin transferred to the BRI from the Royal Brompton in 1998, raising his fears over the unit's failings.

In September 1994 Mr Ash Pawade was appointed consultant paediatric cardiac surgeon at the unit with effect from May 1995.  Mr Dhasmana and Mr Wisheart continued   to operate on children until mid-1995. The unit's record since Mr Pawade took over and the subsequent transfer to Bristol Children's Hospital has been excellent.

The Public Inquiry resulted in the damning report of Professor Ian Kennedy into the failures within the medical and surgical staff at the unit.  The report concluded that Bristol had failed to provide an adequate paediatric cardiac service to sick children in Wales and the West of England over the period 1982-1995.  The report included numerous recommendations and played a crucial part in changing the culture of the NHS in respect of clinical audit and patient safety.

E's family first sought legal advice in 1996 in the wake of the adverse publicity surrounding the heart unit. The claim did not get fully under way until the publication of the Inquiry report in 2001. The family did not commence legal proceedings until 2005, by which time all aspects of the relevant treatment and "E's" care and therapy needs and prognosis had been fully investigated by experts.

Michelmores had invited the NHSLA to admit liability and enter into negotiations following the publication of the Public Inquiry report in 2001.

The NHS litigation authority (NHSLA) has settled around 100 fatal cases involving the same surgeons and the same issues at the same hospital over the same period. E's claim was defended throughout. The Trust expressed regret and apologised to his parents. Liability was not admitted.

E's family have supported their brain-injured son through his life with little assistance from professional bodies and have had to bear the burden of his care to the detriment of their family life.

Following the Judge's approval to the settlement reached between the parties today the family gave the following statement to the press: 

"We are relieved that after 11 years of perseverance by ourselves and our legal team our son's avoidable brain injury sustained at the hands of the disgraced cardiac unit at the BRI 13 years ago has finally been recognised by the NHSLA and a settlement that will secure his future has at last been reached.

Following the damage resulting from the operation in 1994, our son primarily has learning and communication difficulties, impaired fine and gross motor skills, epilepsy and a significant language disorder.  He is an emotionally vulnerable child who struggles to fit in with his peers, yet knows he is different.

We are comforted by the knowledge that when we are no longer able to care for him the financial and emotional burden will not fall on his younger sister.

We are grateful for all the hard work put in by our solicitor, Laurence Vick, of Michelmores in Exeter and his legal team and to the Legal Services Commission, without whom we would not have been able to have pursued this case in the first place.

Our only disappointment with today's outcome is that this issue could not have been resolved years earlier.  Even after a damning GMC investigation and the £15m Public Inquiry into the heart unit at the BRI there are many families like us who are still fighting for justice.

Paediatric cardiac surgery at the BRI in the late 1980's and early 1990's was not "fit for purpose" parents were not told of the problems that had been going on at the BRI and that the risks for their children were much greater there.  We were not given the option of going to cardiac units at other hospitals where prospects of survival were better.  Our son was operated on at a time when the poor performance of the BRI in the field of complex paediatric cardiac surgery was well known internally and shortly before the enforced decision to halt all such surgery.

Despite the fact that United Bristol Healthcare NHS Trust has not admitted liability for what happened to our son, we have received an apology from their legal team. Our hope is that the other families will soon have their cases settled and that they can get on with caring for their children without the additional worry and stress that fighting such cases brings. 

Because our son is currently attending a mainstream school, with statemented support, we would kindly request that the press does not publish his name and address as this could potentially lead to difficulties for him at school."

Laurence Vick was keen to echo the family's relief at the favourable settlement that had been reached which sees the family properly and fairly compensated for the serious damage "E" had sustained and is delighted that the NHSLA has agreed to make index-linked annual payments for the rest of E's life in addition to the lump sum payment to be administered by the Court of Protection.

Laurence Vick added that the settlement would not have been possible without the commitment and support of the Legal Services Commission. The LSC had provided Legal Aid to the family who would not otherwise have been able to progress the claim and achieve justice for their son.

Links to the articles published on the BBC's online news service and the NHS Information Centre appear below.

http://www.bbc.co.uk/spotlight/latest_stories/

http://news.bbc.co.uk/1/hi/england/devon/7045576.stm

http://news.bbc.co.uk/1/low/health/background_briefings/the_bristol_heart_babies/402129.stm

http://www.ic.nhs.uk/news-and-media/press-releases/june-2007/ten-years-after-bristol-inquiry-parents-get-access-to-survival-rates-at-congenital-heart-disease-centres