I was approached in August 2013 by a gentleman who had recently been told by his consultant that during radiotherapy treatment in July and August 2012 he had accidentally been given a significant overdose of radiotherapy. Indeed, the hospital had investigated his treatment and apologised to him for the human error that had led to this mistake in his medical treatment a year earlier.
At the time my client’s consultant felt that it was probably unlikely that he would suffer any significant harm as a result of the overdose.
My client was being treated for a spinal tumour. The “human error” in calculating the dose of radiotherapy meant that he was given doses at either end of his treatment far greater than he should have done.
His treating doctors told him that he probably had a 50% chance of suffering damage to his nerve roots over the following five to ten years and that it was possible that the areas of his bowel that received the radiation overdose might have been damaged.
At the time my client was given this information (a year after the event) he felt fine and did not have any unusual symptoms to report. However, over the following months he started to suffer from significant rectal bleeding. The bleeding was so bad that his clothes would be flooded and he needed to wear adult incontinence pads. He returned to his treating consultant and was referred for specialist “argon beam therapy” which helped with the bleeding to some extent.
I instructed a consultant colo-rectal surgeon to examine my client with a view to identifying what harm the excess radiotherapy had in fact caused. This expert in turn recommended that a consultant oncologist be instructed to review the medical records in more detail and to provide some information in relation to the depth of the radiotherapy given and to help to identify what areas had suffered damage.
The consultant oncologist prepared a very long, detailed and scientific report. He identified that in his view my client would certainly suffer significant problems in the future as a result of the overdose. Not only was his bowel affected but it was also be likely that the skin around his sacrum would break down and the nerves in the lower part of his back would also be affected.
I obtained further expert evidence from both a spinal surgeon and a care expert. My client needed to be able to prove which of his ongoing difficulties were caused by the spinal tumour itself and which were caused by the negligent overdose of radiotherapy.
All of the experts agreed that my client required surgery to remove the damaged part of this bowel and that he would probably benefit from a colostomy procedure sooner rather than later.
Both my client’s treating doctors and the medical experts initially felt that because of the high dose of radiotherapy the tumour was unlikely to increase in size for a long time - of course there was no medical literature available to show the effects of such high doses of radiotherapy as the dose my client received was much much more than any amount that would have ever have been prescribed.
We were gathering medical evidence to look at valuing the claim on the basis of an award for provisional damages. On that basis my client would have received a lump sum for the harm he had already suffered (the bleeding) but thereafter he would be able to return to the court for further compensation to be awarded if the further injuries identified by the medical experts materialised.
Part 41 of the Civil Procedure Rules sets out the requirements of a claim for provisional damages as follows:
Order for an award of provisional damages
(1) The court may make an order for an award of provisional damages if –
(a) the particulars of claim include a claim for provisional damages; and
(b) the court is satisfied that SCA s.32A or CCA s.51 applies.
(Rule 16.4(1)(d) sets out what must be included in the particulars of claim where the claimant is claiming provisional damages)
(2) An order for an award of provisional damages –
(a) must specify the disease or type of deterioration in respect of which an application may be made at a future date;
(b) must specify the period within which such an application may be made; and
(c) may be made in respect of more than one disease or type of deterioration and may, in respect of each disease or type of deterioration, specify a different period within which a subsequent application may be made.
(3) The claimant may make more than one application to extend the period specified under paragraph (2)(b) or (2)(c).
Unfortunately, following an annual MRI scan in late 2016 it became clear that despite the excess radiotherapy my client’s tumour had grown in size. He was very much aware that this would have a detrimental effect on his life expectancy. Therefore he preferred to try to settle his claim as quickly as possible on a “lump sum” basis rather than seek an award of provisional damages.
We took the decision to disclose all of our medical evidence to the hospital’s solicitors on a without prejudice basis with an offer to settle the claim as soon as possible.
The hospital had been keen to seek to negotiate settlement from the outset. I am pleased to say that negotiations were swift and my client has now received his compensation. Without the expert evidence from the colorectal surgeon, oncologist and spinal surgeon it is unlikely that the full extent of his future problems would have been identified.