This article was created on 12 March 2008.

Marianna Telles (now 22), of Newport in Gwent, took her case for clinical negligence against the Bristol Royal Infirmary to the high court in London.

After a seven-day trial the judge found that her doctors had been negligent. But the relief of her family was short-lived. To their anguish the NHS Litigation Authority (NHSLA) immediately let it be known that they intended to appeal against the decision.

The judge refused the NHSLA permission to appeal because he found they had no grounds, but for two weeks the NHSLA considered taking it further by applying direct to the Court of Appeal.

But they have now conceded defeat and abandoned attempts to appeal against the judgment. The family can now be sure that the law has found in their favour, and Marianna’s doctors were negligent as they had always insisted.

Heart surgery compensation

As a result, the family now have the right to a payment on account pending the negotiations on a full settlement figure. A hearing next month will decide what that payment should be and set a timetable for reaching a conclusion on the final damages. This will allow the medical experts from both sides to make up-to-date assessments of Marianna’s needs.

If the two sides cannot agree a settlement then it will come before the court again for a decision, probably late this year. The settlement will be in seven figures.

James Wisheart and Janardan Dhasmana

Marianna Telles was born in May 1985 with a serious congenital heart defect which meant she had dangerously low blood oxygen levels. She first underwent heart surgery only three days later, an operation carried out by Mr Janardan Dhasmana. Later she underwent further surgery by Mr James Wisheart.

In 1998 the General Medical Council suspended Mr Dhasmana for serious professional misconduct during his time at the Bristol Royal Infirmary. Mr Wisheart, who gave evidence at the trial, was struck off.

Bristol Inquiry

A public inquiry in 2001 into the scandal involved 300 families whose children had either died as a result of the incompetence of surgeons at Bristol or had suffered severe injury. Marianna’s mother Anna gave evidence to the inquiry, which was damning in its conclusions and highly critical of the clinical standards of the hospital’s paediatric heart surgery.

But it was a matter of controversy that the inquiry’s remit ran only to cover those children who died and not those who suffered injury. As a result it has not been widely appreciated that many children continue to live with severe brain injury they incurred as a result of incompetent surgery by the doctors concerned.

Comment from the family's lawyer

The lawyer who acted for the families at that inquiry is Laurence Vick, head of clinical negligence at Michelmores. He has represented Marianna Telles during this period. He issued proceedings in 2005 and has brought the case to trial. He is outspoken in his condemnation of the tactics used by the defence over the past several years.

‘The Bristol children’s heart scandal and the subsequent public inquiry and its findings had an impact which is still being felt within the NHS, even seven years later,’ he says.

‘Yet in spite of the absolute discrediting of the regime at the hospital at that time, the NHSLA still made us fight in court to find justice. They conceded liability in numerous cases we handled which involved the death of a child, since given the inquiry’s conclusions they could hardly do anything else.

‘But in all cases of brain injury, I have had to press strenuously for settlements since the inquiry report in 2001. In each case the NHSLA has chosen to fight us. I'm driven to the inevitable conclusion that these cases are defended, regardless of merit, because of the significant compensation involved.

‘The injury to Mariana occurred almost 23 years ago, though until the inquiry in 2001 it was not possible for us legally to make headway with the case. We have a young woman with severe brain damage whose mother has supported her with only limited help from the NHS and local authority.

We’ve attempted to negotiate for a very long time, but without success. The NHSLA have been intransigent and, after 15 years of suffering, you can only imagine what this family has gone through.

‘Then to have won the case only to be told that the NHS wanted to appeal was a cruel and devastating blow to the family.

‘However, it seems the NHSLA have realized they have nowhere else to go and have reluctantly conceded defeat. I have to say that I find it extraordinary that they would contemplate contesting the litigation without bringing the surgeon responsible as a witness.

‘He would obviously be required to explain and justify his techniques, the very techniques which the court found to be negligent. Yet he didn’t appear.

‘But at last Marianna and her family know they will get the financial support which she needs. I’m confident that we shall be able to negotiate a settlement without further recourse to the courts. The money will go to provide round-the-clock care, adapted housing to meet her needs and therapy to improve her quality of life.

‘Marianna’s case was the first of those children who survived operations at the BRI to go to trial. We’ve settled several out of court and there are still seven more waiting in the wings.

‘It would be wonderful to think that the NHSLA might look again at the scandal from which these cases emerged and realize how discreditable their position is in fighting them. They have pursued this litigation at considerable expense. Lawyers are sometimes criticized but frankly I’d much rather have been be sitting round a table discussing the settlement of this family’s claim than making them face the rigours of a trial.

‘But past experience doesn’t give me a great deal of confidence in the decision making at the NHSLA. I urge them to draw a line under these cases coming from this whole sorry pre-95/96 era and settle the other cases we are handling.’