Claimant receives damages for failure to diagnose tumour; Court recognises difficulty in evaluating damages that do not easily fit into category of injury considered by the Judicial Studies Board (JSB) Guidelines. Woodward v Leeds Teaching Hospital NHS Trust [01.08.12]

Comment

In this unusual claim the Judge did not find it easy to value the Claimant’s claim for general damages. He reviewed the JSB Guidelines and decided on the Defendant’s suggested approach - taking the two worst injuries suffered by the Claimant and applying the guidelines to those.

At the hearing the Judge also considered the Claimant’s entitlement to private medical treatment. Despite the fact that up to the date of hearing she had been treated by the NHS very satisfactorily (save for the original misdiagnosis) the Judge ordered private provision of future care related to those aspects where it was uncertain provision would continue under the NHS.

Background

At the age of eight the Claimant started growing at an unnatural rate. At age 13, she was diagnosed with classic acromegalic gigantism. She was given medication to suppress the growth hormone which was being secreted in excessive amounts due to a tumour on her pituitary gland. At the age of 14 the Claimant underwent surgery to remove the tumour, but it was not possible to remove all of it.

The Claimant alleged that the Defendant failed to diagnose and correctly treat the tumour for more than three years. The bodily changes had adversely affected the Claimant both physically and psychologically and would continue to do so. It was agreed that the tumour was likely to become aggressive and re-grow.

The Defendant admitted liability and the case was referred to court to assess damages.

Decision

Judge Baker awarded special damages in excess of £1,105,000 in relation to past and future expenses. With regard to whether or not to allow the Claimant future care costs on a private basis, the Court was required to decide whether the Claimant, if in a position to pay for the treatment privately, would do so (The Law Reform (Personal Injuries) Act 1948 applied).

Baker J was satisfied that because the Claimant was anxious about the possible re-growth of the tumour and because it was not certain that her current treatment would be continued under the NHS, she should be allowed to recover the cost of private future treatment. However, he made a proviso that only the treatment relating to the detection and treatment of the tumour would be recovered on that basis.

With regard to the award for general damages, Baker J recognised there is no category in the JSB guidelines that covers this type of injury. The Claimant argued that damages should be recovered on the basis that her life has been ruined: "in a whole series of ways her life has been grievously affected". The Claimant sought £150,000.

The Defendant identified the most significant individual aspects of the Claimant’s condition and applied the JSB Guidelines to identify a range appropriate to each of those individual aspects and then aggregated them. The Defendant submitted that the range of damages available for disfigurement and progressively worsening back problems were appropriate, providing a sum of £100,000.

The Court agreed with the Defendant’s approach and awarded general damages in the sum of £120,000.